Israel Bar Association Surveys Interns

The Israel Bar Association just sent out a 12 question survey to legal interns (stagiaires) asking the following questions (it was multiple choice but I am only including the questions):

1. Do you think the internship in its current form properly prepares you to work as a lawyer?
2. Was it hard or easy for you to find an internship?
3. If it was hard for you, why do you think that was?
4. During the internship did you only perform legal work?
5. How many hours a day did you work?
6. Do you feel received fair treatment from your employer?
7. How do you rate the quality of your internship?
8. How do you feel about the suggestion to institute an entrance examination at the end of law school as a precondition to beginning an internship?
9. What is your position regarding extending the length of the mandatory internship?
10. What is your position regarding creating a training school to run simultaneously with the internship?
11. What is your position regarding the proposal to change the bar exam to also test critical thinking and analysis rather than rote memorization?
12. Do you think there is a need to change the system to one that institutes standards to determine who can qualify to be an interns mentor (מאמן)?

I think making the bar exam more like the American bar exam to test critical thinking/ analysis and application of the law is a much better idea than the current exam that tests rote memorization. I don't think that the internship should last for more than 1 year. During the internship, salaries are very low. To make interns collect such a pittance for more than 1 year is unfair. I don't see why they need an exam after law school but before the internship. Students take plenty of exams in school and then the bar exam. Why is there a need to insert another test? How would that exam be different than the bar exam?

Israel Hayom | Equal opportunity cyberdefenders protect Hamas alongside the IDF

Equal opportunity cyber defenders protect Hamas alongside the IDF

In an era of rampant cyberwarfare, CloudFlare CEO Matthew Prince acknowledges he is something of a war profiteer, but with a wrinkle.
News Agencies and Israel Hayom Staff

Matthew Prince CloudFlare's serves as an internet intermediary that shields website from hacking attempts.  |  Photo credit: Reuters

When the Israeli army and Hamas trade virtual blows in cyberspace, or when hacker groups like Anonymous rise from the digital ether, or when WikiLeaks dumps a trove of classified documents, some see a lawless Internet.

But Matthew Prince, chief executive at CloudFlare, a little-known Internet start-up that serves some of the Web's most controversial characters, sees a business opportunity.

Founded in 2010, CloudFlare markets itself as an Internet intermediary that shields websites from distributed denial-of-service, or DDoS, attacks — the crude but effective weapon that hackers use to bludgeon websites until they go dark. The 40-person company claims to route up to 5 percent of all Internet traffic through its global network.

Prince calls his company the "Switzerland" of cyberspace — assiduously neutral and open to all comers. But just as companies like Twitter, YouTube and Facebook have faced profound questions about the balance between free speech and openness on the Internet and national security and law enforcement concerns, CloudFlare's business has posed another thorny question: what kinds of services, if any, should an American company be allowed to offer designated terrorists and cybercriminals?

CloudFlare's unusual position at the heart of this debate came to the fore last month, when the Israel Defense Forces sought help from CloudFlare after its Web site was struck by attackers based in Gaza. The IDF approached the same company that provides those services to Hamas and the al-Quds Brigades, according to publicly searchable domain information. Both Hamas and al-Quds, the military wing of the Palestinian Islamic Jihad, are designated by the United States as terrorist groups.

Under the USA Patriot Act, U.S. firms are forbidden from providing "material support" to groups deemed foreign terrorist organizations. But what constitutes material support — like many other facets of the law itself — has been subject to intense debate.

CloudFlare's dealings have attracted heated criticism in the blogosphere from both Israelis and Palestinians, but Prince defended his company as a champion of free speech.

"Both sides have an absolute right to tell their story," said Prince, a 38-year old former lawyer. "We're not providing material support for anybody. We're not sending money, or helping people arm themselves."

Prince noted that his company only provides defensive capabilities that enable websites to stay online.

"We can't be sitting in a role where we decide what is good or what is bad based on our own personal biases," he said. "That's a huge slippery slope."

Many U.S. agencies are customers, but so is WikiLeaks, the whistle-blowing organization. CloudFlare has consulted for many Wall Street institutions, yet also protects Anonymous, the "hacktivist" group associated with the Occupy movement.

Prince's stance could be tested at a time when some lawmakers in the United States and Europe, armed with evidence that militant or terrorist groups rely on the Web for critical operations and recruitment purposes, have pressured Internet companies to censor content or cut off customers.

Last month, conservative political lobbies, as well as seven lawmakers led by Ted Poe, a Republican from Texas, urged the FBI to shut down the Hamas Twitter account. The account remains active; Twitter declined to comment.

Material support

Although it has never prosecuted an Internet company under the Patriot Act, the government's use of the material support argument has steadily risen since 2006. Since Sept. 11, 2001, more than 260 cases have been charged under the provision, according to Fordham Law School's Terrorism Trends database.

Catherine Lotrionte, the director of Georgetown University's Institute for Law, Science and Global Security and a former Central Intelligence Agency lawyer, argued that Internet companies should be more closely regulated.

"Material support includes Web services," Lotrionte said. "Denying them services makes it more costly for the terrorists. You're cornering them."

But others have warned that an aggressive government approach would have a chilling effect on free speech.

"We're resurrecting the kind of broad-brush approaches we used in the McCarthy era," said David Cole, who represented the Humanitarian Law Project, a non-profit organization that was charged by the Justice Department for teaching law to the Kurdistan Workers' Party, which is designated by the United States as a terrorist group. The group took its case to the Supreme Court but lost in 2010.

The material support law is vague and ill-crafted, to the point where basic telecom providers, for instance, could be found guilty by association if a terrorist logs onto the Web to plot an attack, Cole said.

In that case, he asked, "Do we really think that AT&T or Google should be held accountable?"

CloudFlare said it has not been contacted about its services by the U.S. government. Spokespeople for Hamas and the Palestinian Islamic Jihad, told Reuters they contracted a cybersecurity company in Gaza that outsources work to foreign companies, but declined to comment further. The IDF confirmed it had hired CloudFlare, but declined to discuss "internal security" matters.

CloudFlare offers many of its services for free, but the company says websites seeking advanced protection and features can see their bills rise to more than $3,000 a month. Prince declined to discuss the business arrangements with specific customers.

While not yet profitable, CloudFlare has more than doubled its revenue in the past four months, according to Prince, and is picking up 3,000 new customers a day. The company has raked in more than $22 million from venture capital firms, including New Enterprise Associates, Venrock and Pelion Venture Partners.

Prince, a Midwestern native with mussed brown hair who holds a law degree from the University of Chicago, said he has a track record of working on the right side of the law.

A decade ago, Prince provided free legal aid to Spamhaus, an international group that tracked email spammers and identity thieves. He went on to create Project Honey Pot, an open source spam-tracking endeavor that turned over findings to police.

Prince's latest company, CloudFlare, has been hailed by groups such as the Committee to Protect Journalists for protecting speech. Another client, the World Economic Forum, named CloudFlare among its 2012 "technology pioneers" for its work. But it also owes its profile to its most controversial customers.

CloudFlare has served 4Chan, the online messaging community that spawned Anonymous. LulzSec, the hacker group best known for targeting Sony Corp, is another customer. And since last May, the company has propped up WikiLeaks after a vigilante hacker group crashed the document repository.

Last year, members of the hacker collective UgNazi, whose exploits include pilfering user account information from eBay and crashing the CIA.gov website, broke into Prince's cell phone and email accounts.

"It was a personal affront," Prince said. "But we never kicked them off either."

Prince said CloudFlare would comply with a valid court order to remove a customer, but that the Federal Bureau of Investigation has never requested a removal. The company has agreed to turn over information to authorities on "exceedingly rare" occasions, he acknowledged, declining to elaborate.

"Any company that doesn't do that won't be in business long," Prince said. But in an email, he added: "We have a deep and abiding respect for our users' privacy, disclose to our users whenever possible if we are ordered to turn over information and would fight an order that we believed was not proper."

Juliannne Sohn, an FBI spokeswoman, declined to comment.

Michael Sussmann, a former Justice Department lawyer who prosecuted computer crimes, said U.S. law enforcement agencies may in fact prefer that the Web's most wanted are parked behind CloudFlare rather than a foreign service over which they have no jurisdiction.

Federal investigators "want to gather information from as many sources as they can, and they're happy to get it," Sussmann said.

In an era of rampant cyberwarfare, Prince acknowledged he is something of a war profiteer, but with a wrinkle.

Israel Hayom | Israel gets same-sex divorce before same-sex marriage

The article:

An Israeli court has awarded the country's first divorce to a gay couple, which experts called an ironic milestone since same-sex marriages cannot be legally conducted in the country.

A decision this week by a family court in the Tel Aviv area "determined that the marriage should be ended" between former Israeli lawmaker Uzi Even, 72, and his partner of 23 years, Amit Kama, 52, their lawyer, Judith Meisels, said on Tuesday.

Legal experts see the ruling as a precedent in the realm of gay rights in a country where conservative family traditions are strong and religious courts oversee ceremonies like marriages, divorces and burials.

While Israel's Interior Ministry still has the power to try and veto the decision, it would likely have to go court in order to do so, Meisels said.

A 2006 high court decision forced the same ministry, headed by an ultra-Orthodox cabinet member, to recognize same-sex marriages performed abroad and ordered the government to list a gay couple wed in Canada as married.

Same-sex marriages are performed in Israel, but they have no formal legal status.

"The irony is that while this is the beginning of a civil revolution, it's based on divorce rather than marriage," newly divorced Kama, a senior lecturer in communications in Yezreel Valley College, told Reuters.

He and Even, both Israelis, married in Toronto in 2004, not long after Canada legalized same-sex marriage. They separated last year, Kama said.

It took months to finalize a divorce as they could not meet Canada's residency requirements to have their marriage dissolved there. At the same time in Israel, rabbinical courts in charge of overseeing such proceedings threw out the case, Kama said.

By winning a ruling from a civil court, Kama and Even may have also set a precedent for Israeli heterosexual couples, who until now have had to have rabbis steeped in ancient ritual handle their divorces, legal experts say.

"This is the first time in Israeli history a couple of Jews are obtaining a divorce issued by an authority other than a rabbinical court, and I think there is significant potential here for straight couples" to do so as well, said Zvi Triger, deputy dean of the Haim Striks School of Law near Tel Aviv.

Israel to resume targeted killings in Gaza?

According to an article in Israel Hayom, Israel is considering resuming targeted killings of Hamas leaders in response to the rocket barrages against the south of the country. The article states that Israel had ceased its policy of targeted killings due to international pressure.

Below are some links to papers regarding the legality and wisdom of targeted killings of terrorists:

• Targeted Killing by Daniel Statman.
  Abstract: The purpose of this paper is to provide a philosophical defense for targeted killings in the wars against terror. The paper argues that if one accepts the moral legitimacy of the large-scale killing of combatants in conventional (what are soon to be called "old-fashioned") wars, one cannot object — on moral grounds — to the targeted killing of terrorists in wars against terror. If one rejects this legitimacy, one must object to all killing in war, targeted and non-targeted alike, and thus not support the view, which is criticized here, that targeted killings are particularly disturbing from a moral point of view.
  

  
  
• Israel’s Policy of Targeted Killing by Steven R. David
  
  Abstract: Since the beginning of the second intifada in the fall of 2000, Israel has pursued a policy in which alleged Palestinian terrorists have been hunted down and killed by government order. The policy is not one of assassination and is consistent with international law because Israel is engaged in armed conflict with terrorists, those targeted are usually killed by conventional military means, not through deception, and the targets of the attacks are not civilians but combatants or are part of a military chain of command. Targeted killing has also been affirmed by Israel's High Court.
  Although targeted killing has been pursued by Israel throughout its history, the scale of the present effort and the use of sophisticated military assets such as helicopter gunships and jet fighters set it apart from earlier practices. The effectiveness of the policy is called into doubt because it has not prevented–and may have contributed to–record numbers of Israeli civilians being killed. The policy has also resulted in informers being revealed, intelligence resources diverted, potential negotiating partners eliminated. It has also produced murderous retaliation and international condemnation of Israel. Benefits of the policy include impeding the effectiveness of terrorist operations, keeping terrorists on the run, and deterring some attacks. In addition, it affords the Israeli public a sense of revenge and retribution.
  Because it targets the actual perpetrators of terrorism, targeted killing provides a proportionate and discriminate response to the threat Israel faces. Improving the policy will require better civilian oversight, greater care to eliminate harm to innocent bystanders, and refraining from killing political leaders. Despite its many shortcomings, Israel is justified in pursuing this policy so long as it faces a terrorist threat that the Palestinian Authority will not or cannot control.
  
  

• On Target? The Israeli Supreme Court and the Expansion of Targeted Killings by Kristen Eichensehr
  Abstract: After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. But the court also expanded the traditional definition of direct participation and the time period during which civilians may lawfully be attacked. By disregarding the direct participation requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.
• Targeted Warfare: Individuating Enemy Responsibility by Samuel Issacharoff and Richard H. Pildes
  Abstract: This Article argues that the legitimacy of the use of military force is undergoing a fundamental but insufficiently appreciated moral and legal transformation. The transformation is this: whereas the traditional practices and laws of war defined “the enemy” in terms of categorical, group-based judgments that turned on status – a person was an enemy not because of any specific actions he himself engaged in, but because he was a member of an opposing army – we are now moving to a world that, implicitly or explicitly, requires the individuation of personal responsibility of specific “enemy” persons before the use of military force is justified. Increasingly, the legitimate use of military force is tied to adjudicative-like judgments about the individual acts and roles of specific “enemy” figures; that is the case whether the force involved is military detention or lethal killing. This transformation transcends the conventional debates about whether terrorism should be treated more like war or crime and is more profound in its implications.
  
  This readjustment in the basic premises underlying the justified use of military force will have, and is already having, implications for all the institutions involved in the use of military force and in the processes by which decisions are made to use force. For the military, this change will generate pressures to create internal, adjudicative-like processes to ensure accurate, credible judgments about the individual responsibility of particular “enemy” fighters. For the executive, these changes will propel greater engagement in decisions that had previously been more exclusively within the province of the military itself. For the courts, this transformation toward individuated judgments of responsibility will inevitably bring about a greater judicial role in assessing wartime judgments than in the past, as has begin to occur already. These changes are not yet directly reflected (or at least fully reflected) in the formal laws of war, but we anticipate that as these changes embed themselves in the practices of states, especially dominant states, these changes in practice will also eventually come to be embodied in the legal frameworks that regulate the use of force. This Article, after identifying this fundamental transformation as the central factor driving struggles over the proper boundaries of military force, then explores the ramifications of this change for issues like military detention and targeted killings.
  
  
• Targeted Killing of Suspected Terrorists: Extra-Judicial Executions or Legitimate Means of Defence? by David Kretzmer
  Abstract: Whether a state that has been subject to attacks by a transnational terrorist group may target active members of that group who are not in its jurisdiction has caused controversy. Some refer to targeted killings of suspected terrorists as extra-judicial executions; others claim they are legitimate acts of war. The author examines the legality of such killings under norms of international human rights law and international humanitarian law. Under the former system, such killings can only be lawful when carried out to prevent an imminent attack that cannot be stopped by other means. Under the latter system, such killings may be lawful if the suspected terrorists are to be regarded as combatants. He argues that while in international armed conflicts suspected terrorists are generally not combatants, in noninternational armed conflicts they may well  be combatants. In such conflicts norms of international humanitarian law cannot stand on their own; the applicable system must be a mixed model, which incorporates features of international human rights law. In the final section the author discusses the  Israeli policy of targeted killings and the US attack on suspected members of al-Qaeda in Yemen, and applies the mixed model to these cases.
  
  
• Targeted Killing in U.S. Counterterrorism Strategy and Law by Kenneth Anderson
Abstract: Targeted killing, particularly through the use of missiles fired from Predator drone aircraft, has become an important, and internationally controversial, part of the US war against al Qaeda in Pakistan and other places. The Obama administration, both during the campaign and in its first months in office, has publicly embraced the strategy as a form of counterterrorism. This paper argues, however, that unless the Obama administration takes careful and assertive legal steps to protect it, targeted killing using remote platforms such as drone aircraft will take on greater strategic salience precisely as the Obama administration allows the legal space for it in international law to shrink. Moreover, the paper argues that non-state enemies of the United States will not always be al Qaeda or groups covered by Security Council resolutions or the US Authorization for the Use of Military Force. Eventually there will emerge other threats that do not fall within the existing armed conflicts, and the United States is likely to seek to address at least some of those threats using its inherent rights of self-defense, whether or not a conflict within the meaning of international humanitarian law (IHL) and its thresholds is underway, and using domestic law authority under the statutes establishing the CIA. In that case, a US administration seeking to offer a legal rationale justifying its use of targeted killing might discover that reliance upon a state of IHL-armed conflict does not provide it the robust authority to use force that the US has traditionally asserted under its rights of inherent self-defense.This is a policy paper, not a law review or scholarly article, and it offers blunt advice to the Obama administration and the US Congress with a particular normative goal in mind - to preserve the legal rationales for the use of self-defense in targeted killing, whether or not an IHL armed conflict is underway, consistent with the positions taken by the United States in the 1980s, and culminating with a statement of the US position on self-defense against terrorism and targeting terrorists in third-state safe havens by then-State Department legal advisor Abraham Sofaer in 1989. The point of the paper is to urge the Obama administration, and offer it advice, on how to preserve the legal category of targeted killing as an aspect of inherent rights of self-defense and US domestic law. As such, this paper runs sharply counter to the dominant trend in international law scholarship, which is overwhelmingly hostile to the practice. It urges the Obama administration to consider carefully ways in which apparently unrelated, broadly admirable human rights goals, such as accepting extraterritorial application of the International Covenant on Civil and Political Rights, or accepting its standards as a complement to the lex specialis of IHL, or accepting recent soft-law standards offered by some influential NGOs such as the International Committee of the Red Cross to define "direct participation in hostilities," have the effect of making legally difficult, if not legally impossible, a counterterrorism strategy of targeted killing using standoff platforms that the Obama administration has correctly embraced as both more effective and more discriminating from a humanitarian stance. It is frank, practical advice to the Obama administration that it must assert the legality of its practices in the face of a hostile and influential international soft-law community or risk losing the legal rationale for a signature strategy.

• Efficiency in Bello and ad Bellum: Targeted Killing Through Drone Warfare by Kenneth Anderson
  Abstract: A peculiar feature of the targeted killing using drone technology debate is that it appears to set up a tension between the two traditional categories of the law and ethics of war, jus in bello and jus ad bellum. The more targeted killing technologies allow more precise targeting and reducing collateral casualties and harm (jus in bello), and that moreover at less personal risk to the drone user’s forces, perhaps the less inhibition that party has in resorting to force (jus ad bellum).
  A strong version of this claim says: The perverse effect of increasing the efficiency of jus in bello through targeted killing (reducing civilian harm and increasing military effectiveness) is to reduce the efficiency of jus ad bellum (making the resort to force too easy). Improvements in jus in bello conduct ironically makes it too easy, too unconstrained (by lack of personal risk to one’s forces because of drones and lowered civilian harm because of improved targeting) to resort to force. This paper evaluates this claim, and more broadly the idea that jus in bello proportionality and jus ad bellum resort to force can each have a form of efficiency. It rejects the claim as incoherent, because the existence of sides in conflict results in incommensurable meanings of winning and losing in jus ad bellum, without which there cannot be an “optimal” level of the resort to force.
  The conceptual claim depends upon highly fact specific assumptions about the practice of targeted killing and drone warfare today. The essay walks through a number of these assumptions in an informal way, drawing upon the author’s discussions with governmental and non-governmental actors, particularly on the question of civilian casualties, and ways in which some of the anxieties over targeted killing and drone technologies might not reflect current practices. These assumptions are ones that the reader might or might not accept, given that they are not corroborated and reflect interviews, informal, and off the record discussions that are far from conclusive. Even if the reader does not share the premises in fact, the essay invites accepting them for purposes of evaluating the ethical argument. The essay intertwines an abstract argument about efficiency in the ethics of war, and a practical part that discusses premises crucial to that abstract argument. (This is working paper v3 of 3. It runs approximately 12,000 words; it is lightly footnoted, rather than law review footnoted, intended for an academic philosophy forum.)

Israel Police to tackle cyber crime with new unit- JPost

Cybercrime and cyberterrorism are keeping information security professionals up at night. Many in the Information Security field have been pointing out the necessity for cyber security upgrades to countries' domestic computer apparatuses for some time (see here and here.) 

The JPost and IsraelHayom reported that at the annual International Conference on Homeland Security in Tel Aviv,  Israel Police Insp.-Gen. Yohanan Danino announced that Israel is creating a unit of 60 computer security experts to defend the country from cybercrime whether committed by members of organized crime syndicates, pedophiles, or foreign elements. (See also my earlier post regarding the US stance on cyberattacks.) 

One of the biggest questions regarding such an endeavor is whether the government sector can offer salaries that are competitive with the private sector. This is a problem that the National Security Agency in the US has been facing for many years (see here, here, and here.) For a review of other problems involved in recruiting computer security experts for US government agencies see the US Government Accountability Office report. Whether Israeli computer experts' sense of patriotic duty trumps financial remuneration remains to be seen, although Israel has long had a military "computer corps" and those individuals might be willing to spend some time in this new agency before moving to the private sector.