The government is considering a Terror Bill, which is rather a newfangled thing: at the moment we have that cherished British heirloom, the Defense (Emergency) Regulations of 1945, and some bits and pieces of it haphazardly passed into law. Unfortunately, the suggested bill is likely to make the already unhealthy Israeli democracy even more moribund. I wish to thank ACRI for their definitive guide to the bill (both are Hebrew PDF files).
The bill is problematic in many ways. The destruction of “government symbols” (pg.6) will be considered a terrorist act – i.e., if you burn an Israeli flag, you become a terrorist; an act of legitimate protest will not only put you behind bars, it will put you there for a particularly long time, since one of the main goals of the bill is to lengthen the prison terms of “terrorists.”
Another point is that the Minister of Security is empowered, using his own judgment, to declare an organization as a terror organization (pg. 9). He is supposed to do so at the request of a service chief, presumably the GSS (General Security Services) chief, and the latter has to provide the support of the Counsel General; but it is an administrative act, not a judicial one, and the members of the organization in question have no way to defend themselves. In fact, the first time an organization may hear it’s actually a terror organization is when the Minister declares it so.
Admittedly, it’s somewhat difficult to summon representatives of Az A-Din Al Qassam so that they may put forward their views before the minister makes his decision, but this bill won’t have much to do with military organizations; it specifically (pg. 2) refers to the Da’wa organizations, Hamas’ charity societies and associations. And who is to say whether a charity is in fact a Hamas front? Why, the GSS. Suddenly, a charity finds itself on the wrong side of the law. Its bank account is frozen, its name is libeled. When they make it to the Supreme Court, to appeal the decision, they appear before the Court as the representatives of a society already declared to be a terror organization – and the judges, who happen to be mortal, will consider them to be such.
A third point is that the law creates a circle of terror capable of almost infinite enlargement. Let’s assume, for the sake of the argument, that a person donates to some society. That society happens to support Palestinian education facilities; some of those, things being what they are, will be Hamas facilities. Bang! The society, and the donor, have suddenly become terrorists.
Fourthly, once a person becomes suspect of terrorism, there’s a lot of unpleasant and irregular things that may happen to him. They ought to be enumerated, because they are, in a large sense, the core of this bill.
>> The bill allows for a significant increase in the use of “secret information” – i.e. information, generally claimed to be derived from intelligence sources and sometimes fabricated, presented to the court with the without the knowledge of the accused. This creates a situation in which the suspect actually has less rights than those enjoyed by a prisoner of the Inquisition. A person arrested according to the Terror Bill does not know what he is suspected of, he does not know who incriminated him, and has no way of properly defending himself in court. A person summoned by the Inquisition could, at least, name his enemies; and if his accuser appeared on that list, the suspect would be dismissed (and the suspected perjurer arrested himself). The bill allows considers information to be secret not only if it may harm the security of the state, but also if it may “damage Israel’s foreign relations”. Just how wide-ranging this definition can be was seen several weeks back, when a court refused (Heb) to provide the Muslim residents of Jaffa with a list of the assets of the Waqf in Jaffa – because this information may “damage Israel’s foreign relations.” This information will be denied not just to the suspect, but also to his lawyer; and the bill restricts the suspect’s access to a lawyer.
>>Even worse than that, the bill extends the usage of administrative arrest (pg. 97). Though it became a part of Israeli law in 1979, it was an emergency law and rarely used against Israeli citizens or within the State of Israel proper. Becoming a part of normative law will make administrative arrest much more common. Administrative arrests creates a legal limbo, in which a person may be detained, for years – six months at a time, then another six months, then six months more – without the state having to prove his guilt, or even allowing him to establish his innocence. By definition, administrative arrest takes place when there is not enough evidence for a normal criminal process, which will make it liable to rely even more on “secret information.” After all, if the government had evidence against the suspect, there would be no need for an administrative arrest.
>>The new bill further allows (ibid) a list of other restrictions, for a period of up to one year, against terror suspects, without providing them with an opportunity to defend themselves in advance. It includes a prohibition of leaving a certain area; a prohibition of staying in a certain area; a prohibition of leaving the country; the duty to inform the police of all of the suspect’s movements; the duty of surrendering his passport; a prohibition to “hold certain items” or “receive certain services”; a prohibition of meeting a specific person or persons; limitations of the suspect’s occupation; or that general article, which allows “any other restriction required by reasons of state or public security.”
The combination of these three articles is deadly to a democratic state. An arrest without access to a lawyer has one goal and goal only: breaking the suspect and getting a confession. It works. In the recent case of Amir Makhoul, the prosecution had to admit, through gritted teeth, that it had no evidence against Makhoul, aside from his confession, obtained after weeks of detention without access to lawyers. This, despite the fact that the GSS (General Security Services) confiscated his computers, and has listened to hundred of hours of his phone conversations. It should further be mentioned that the number of prisoners acquitted throughout the history of Israel because their confession was extracted from them by torture is zero. This despite the fact that the Landau Commission, in the 1980s, found the GSS has lied systematically in thousands of cases.
And as if all this wasn’t enough, the Minister of Security (or the Army Chief of Staff!) can, based on his own judgment, throw an Israeli citizen into administrative detention – and keep the evidence against him secret. He may also make certain, if he so chooses, that an Israeli citizen loses his job or fails to find another; that he may be prohibited from meeting with his friends and colleagues; and that he may be prevented from leaving the country which persecutes him without allowing him a proper defense.
The minister (or the general) may, at their discretion, allow that person a hearing; but they may decide to do so up to three weeks after the restrictions came into action. The suspect may demand a hearing at a Regional Court; but one assumes this would be the GSS’s home court, the Petah Tikva Regional Court and its pet judge, Einat Ron (who handled both the Kamm and the Makhoul cases, and is a former military prosecutor who tried to cover up the killing of a Palestinian boy). Such things just happen. The bill contains many more annoying, even dangerous, items; but compared to the above, they are indeed immaterial.
Now, hold on, you say; who guarantees that the Minister (or the general) will actually sign the administrative order? Who says he won’t read the secret material with disgust, refuse to serve as Shin Bet Director Yuval Diskin’s rubber stamp, and kick the GSS down the stairs? There are two answers to these questions. One, the freedom of a person ought not to depend on the reasoning of a political figure, much less a general; and two, I cannot remember a single case in which the GSS requested an administrative arrest order and didn’t get it. If this bill becomes a law, the freedom of every citizen will be in question as soon as he annoys the GSS, and even the flimsy defenses he had so far won’t stand.
The danger, of course, is not equally spread. The good Zionist citizens, who praise the IDF and who believe the GSS without a second thought, will not – generally – be in any danger. But more skeptical citizens, those with a critical bent, those whose attitude to Zionism is problematic, will know that from now on that they can, with a few clicks of the keyboard, lose whatever is left of their rights. That, one suspects, is precisely the goal of the GSS, who just a few years back informed us that its purpose includes the “suppression of subversion,”even when this “subversion” is legal and intends to influence the future of Israel in legal and non-violent ways. In short, this bill must not pass.
But it will, of course.