Ruth Bader Ginsburg and Israel’s Anti-Terror Strategy

The Biden administration has once again criticized Israel for dismantling the homes of Palestinian Arab terrorists. U.S. officials say the practice is unfair because, as State Department spokesman Ned Price has put it, “the home of an entire family shouldn’t be demolished for the action of one individual.”

It appears that the president of the United States and his spokesmen are not familiar with some fundamental aspects of the American judicial system. That’s where one can find plenty of models for Israel’s anti-terrorist tactics.

It’s called “civil asset forfeiture”—and Supreme Court Justice Ruth Bader Ginsburg played a key role in upholding it as the law of the land.

If somebody drives drunk, the authorities can seize his automobile—even if that’s the car that he uses to drive his kids to school. The kids are innocent. But they inevitably suffer some of the consequences if their father endangers other people’s lives by driving drunk.

It’s not just drunk driving. In many states, the police can impound the family’s primary mode of transportation if it was used for any one of a wide variety of driving infractions. Reckless driving. Evading the police. Participating—or even promoting!—an illegal drag race. Driving without registration, or insurance, or a valid license.

And it’s not just the family car. If a drug dealer runs his operation from one room in the family’s house, the authorities can seize the entire house, even if the other family members had nothing to do with the drug dealing, and even if they knew nothing about it.

And it’s not as if the criminal in these cases necessarily gets his car or house back later. If he’s convicted and the property was used somehow in the commission of the crime, that property is put up for auction and the money is kept by the local government. The criminal’s children remain homeless and without transportation—but that’s the law.

In fact, even if the property owner is never charged with a crime, as long as the police suspect the car or the house might have been used in connection with the crime, that property can be seized and held for the entire duration of the investigation, which in some cases can mean years.

Yes, the innocent spouse can go to court to try to get the family’s car or house back. But that means paying lawyers and spending countless hours in a legal battle.

Consider the case of Tina Bennis. She decided to fight, and the case went all the way to the Supreme Court.

Mrs. Bennis’s husband was arrested in Detroit in 1988 for consorting with a prostitute in the family car. When he was arrested, the automobile was seized. Poor Mrs. Bennis—talk about an innocent bystander! Through no fault of her own, she was subjected to the anguish of being cheated upon, the embarrassment of having her family’s dirty laundry exposed in public, and, on top of it all, the loss of her car (she was the co-owner).

So she sued the State of Michigan to get her car back. During the trial, Mrs. Bennis proved she had no knowledge of her husband’s illegal activity in the car. She testified that she, not her husband, provided most of the money to buy the car in the first place. She lost the case anyway.

But Mrs. Bennis didn’t give up. She fought for eight years, through various appellate courts, all the way to the United States Supreme Court. But the Supreme Court ruled against her. In a five to four decision, the court upheld the right of the Michigan authorities to seize and keep Mrs. Bennis’s car. Four of the five who voted against Mrs. Bennis had been nominated to the court by Republican presidents. But the fifth and deciding vote came from a liberal justice who joined the conservatives against Mrs. Bennis—Ruth Bader Ginsburg.

Then-Senator Joe Biden was the chairman of the Senate Judiciary Committee when Ruth Bader Ginsburg was nominated to the Supreme Court in 1993. He presided over her confirmation hearings. In his opening remarks, Biden declared that Ginsburg “comes before the committee with her place already secured in history,” for her role in various legal cases related to civil rights. “You have already helped to change the meaning of equality in our Nation,” Biden said.

As it turned out, Ginsburg also ended up ensuring the right of the authorities to seize a criminal’s property, even if that seizure impacts innocent members of his family. A later Supreme Court ruling refined the application of the law just a bit, but the principle remains, and the practice continues.

So now the Biden administration is going to lecture Israel about “collective punishment”? U.S. officials are going to tell Israel to stop taking away the property of convicted terrorists, even though scholarly studies and multiple Israeli court decisions have upheld that practice as a deterrent to terrorism?

Perhaps Israel should remind the critics that its anti-terror actions are consistent with the wise counsel of the late Justice Ginsburg and her colleagues.

Stephen M. Flatow is an attorney and the father of Alisa Flatow, who was murdered in an Iranian-sponsored Palestinian terrorist attack in 1995. He is author of “A Father’s Story: My Fight for Justice Against Iranian Terror.”