Shiri Krebs is a PhD student at Stanford University law school. She was an international law advisor to Israeli Supreme Court president Dorit Beinisch and a researcher at the Israel Democracy Institute. She published a paper (for Hebrew readers, Haaretz offers this story) this month in the Vanderbilt Journal of Transitional Law about the rubber stamp offered by the Israel’s highest court to the security services in cases of administrative detention. She pointedly argues against the reputation the Court enjoys for being “interventionist” in protecting the rights of security detainees and offering a robust defense of democratic rights.
Surprisingly, she notes that there are those in the legal community who are proposing that Israel’s system both of administrative detention and judicial review are being offered as a model for other countries facing terror threats. In fact, the National Defense Authorization Act codifies a U.S. version of indefinite administrative detention as Reuters notes:
The section authorizes indefinite military detention for those deemed to have “substantially supported” al Qaeda, the Taliban or “associated forces.”
Does a journalist who objects to targeted killings of al-Qaeda operatives in Yemen or Pakistan “substantially support” it? What about supporting Bradley Manning or Wikileaks? You say no and I say no, but neither of us will be interpreting the law. The Justice Department, just like the Israeli state prosecutor, will be. What will its standard be? Thankfully, a federal judge issued a stay regarding enforcement of this provision of the law.
Krebs rejects Israel as a viable legal model:
…They [the research and interviews conducted in preparing the article] cast doubt on arguments that Israel’s detention model is one that should be emulated by other countries…The legal framework [of administrative detention and judicial review] itself makes independent judicial review of detention exceedingly challenging, if not impossible.
The paper is especially important in light of the hunger strikes of 1,600 Palestinian prisoners who were protesting precisely the types of arbitrary administrative detentions Krebs discusses in her paper. The protesting prisoners complained about the arbitrary nature of their detention and the fact that often the evidence against them was secret both to them and their lawyers. In essence, they neither knew who was their accuser, what they were accused of, nor what evidence was offered. Six-month sentences could be renewed without offering any new evidence and renewed virtually forever. A number of prisoners were held for years under similar terms.
Krebs’ research examines 322 cases brought before the High Court between 2000-2010, in which Palestinian detainees appealed against their sentences. Of these, the Court reversed the sentences in none of the cases:
…Out of the 322 cases decided by the Israeli Supreme Court in this period, not a single case resulted in a release order, and in none of the cases did the Court openly reject the secret evidence.
In one-third of the cases, the detainee would drop his appeal after a deal was struck with the state attorney. But such deals were inherently one-sided since the State controlled virtually the entire process and made an offer the defense couldn’t afford to refuse: the defense knew the Court would never reverse the security services and had to accept the crumbs it was offered.
When the Court does render its decisions in these cases, the justices themselves rarely get to see the evidence the State used to detain the suspect. They rarely know much, if anything about the detainee or his case. They rarely conduct an adversarial inquiry into the charges. Their decisions often run only a few lines, if that. A long one might extend three pages.
This dynamic is at work in virtually all security cases, even ones not involving administrative detention. Detainee-victims like Ameer Makhoul and many others who face life sentences for their alleged crimes, know that if they don’t bargain away their freedom by accepting “reduced” sentences, they will spend their entire lives behind bars. They know there is virtually no chance the court will find in their favor. Another victim like Dirar Abu Sisi has refused a plea deal, but the State has kept him bottled up in prison for several years without trial. That is the price a prisoner pays for maintaining his pride and his innocence by not “taking the deal.”
In this sense, the “shadow of the Court” provided a threat that persuaded the State to plea down charges, but it was often a weak and toothless one. Even in cases where detainees had charges against them dropped it didn’t result in their immediately being freed.
The law journal article is fascinating because it offers an intimate portrait of the personal discomfort felt by Israeli justices in the face of these security cases. The moral queasiness they experience is embarrassing because it reveals their willingness to suspend their usual judicial demeanor in deference to the security powers of the State. Here are some of the personal statements Krebs records:
This is not ideal. [Administrative detentions] represent a certain devaluation of our system of values, but there is no other choice.
–Justice E, Israeli Supreme Court
I feel responsibility . . . . There is a war going on . . . the phrase that a democracy fights with one hand tied behind its back is a nice metaphor . . . is a nice phrase to frame on the wall, but it is not suited for real everyday life.
–Justice B, Israeli Supreme Court
You have a feeling of discomfort. I never enjoyed sitting in administrative detention cases. No one enjoys it. Judges don’t like these cases, because we are trained to criminal proceedings, with witnesses, cross-examination . . . It is not pleasant. You want to run away from it as fast as you can, but you know that it is necessary for the sake of your people and country.
–Justice B, Israeli Supreme Court
The judges cannot differ with the ISA story. How can I? I don’t have the defense lawyer jumping to say “it never happened,” “this is not true.” My ethos, as a judge, is that I have two parties. Of course, I can think by myself, but I need tools, which are missing . . . to the most I have very limited tools
–Justice D, Supreme Court
The state attorneys should also come to the hearing nervous and tense—but they are always very relaxed. They know that no matter what they say or do, they will always win…
There is no judicial discretion here, since the Justices do not know the facts. They don’t have the tools to decide what the level of dangerousness is . . . in one of the cases in which I served as defense lawyer, it took the ISA two years to tell him [the detainee S.K.] what the allegations against him were. Then, when I asked my client about it, it turned out that it was a murder case that happened near his house, in which he had no involvement with whatsoever. When I brought this to Court and asked the ISA representatives about it––I could tell that the Justices knew nothing about it. I could see their surprise. It then took two more detention orders until he was finally released.
–Defense lawyer C
“In some cases even I felt that it was too easy,”
–State Attorney A
With all the good will on the part of everybody, there is no way to conduct a fair ex parte hearing. The human nature and the dynamic of the process prevent fair hearing of the case.
–State Attorney B
The negotiation with the ISA [Israeli state attorney] is bad, because it is blind on the detainee’s part. If the ISA agrees, in the negotiation with the detainee’s lawyer, to issue only one more detention order, or even to release him at the end of the current detention order, it means that the case is weak, and therefore the detainee should have been released immediately.
–Defense attorney D
The more reasoned judicial decisions are no more than a bunch of clichés, since they are not implemented . . . the Justices talk highly about being the “detainee’s mouth,” but they can’t. How can they be his mouth, when they know nothing at all about his side of the story?
–Defense lawyer B
In her conclusion, Krebs draws the following lessons:
The Court systematically avoids issuing release orders, and demonstrates minimal intervention with regard to the assessment of the secret evidence. As both the case law analysis and the interviews demonstrate, the Court refrains from openly and blatantly opposing the ISA assessment of the secret evidence…
…The research findings [reveal]…the vulnerability of democracies under stress to intolerant and illiberal mechanisms. The research reveals the weaknesses of judicial protections against prolonged and arbitrary detentions, and highlights the unique challenges posed by secret evidence to fair judicial proceedings. Unfortunately, detention proceedings become an “assembly line” in which “enemies”, “terrorists” or just “others” are constantly losing one of their most basic and valued human assets: their freedom.
Krebs’ analysis proves the justice of the wide-scale Palestinian protest against the administrative detention regime. You’ll recall that in spite of defense appeals to the Supreme Court to spare the lives of their hunger striking clients, the justices refused to intervene. They simply refused to provide adequate oversight or judicial review of the actions of the secret police in so-called terror/national security cases.
She notes that use of this tactic has declined over the years. Perhaps the protests will bring about an even greater drop in such charges. If so, it can’t happen too soon. This is not just a blemish, it’s a tumor on the Israeli judicial system. It brings the justices into a process of collusion with the security services, rather than a relationship of healthy skeptical review as should happen in a normal democracy. It cheapens the rule of law and undermines it severely.
Though I am neither a lawyer nor human rights specialist, I’ve often written here about violations of fairness and due process in the Israeli judicial process concerning national security cases. Supporters of this reprehensible system have argued here that I’ve exaggerated and asked for irrefutable proof for my claims. As far as I’m concerned, Krebs has offered this incontrovertible evidence in her quantitative analysis of the shortcomings of the Israeli legal system.
Fred Plester says
Do any Palestinians “substantially support” the Taliban?
If Ms. Krebs had been alive in 1939-1943 she would have willingly walked into the gas chambers singing and defending the rights of the Nazis.
Some of us have learned. Never Again.
Richard Silverstein says
When I read comments like this I wonder precisely how your genetic material was successfully passed down through the generations & why Darwin’s Law didn’t appear to work in your case.
But I guess even the inane & obtuse may be among the “fittest.”
Dave Terry says
Libertarian1 wrote; “Some of us have learned. Never Again.
No, what some of you have learned is that it is better to do it others than to have it done to you. In this respect YOU are the children of the Nazis.
And, PLEASE stop identifying yourself as a Libertarian. YOU
ARE NOT! Why are you afraid to use your real name?
Another really appropriate name for your group philosophy is “The Hemlock Society”. As the ostrich Jews said in the ’30s, we are good Germans, it can’t happen here. Well, it did.
Name one Arab country if given the chance to totally destroy Israel and wipe the country off the face of the map, wouldn’t push that button.
I gather that wouldn’t bother you as Israel is a police state and doesn’t deserve to exist.
No state anywhere is going to “push the button” because of consequences for all, if for no other reason. None. If Pakistan and India have held a balance on these weapons all these years, so will the rest of mankind.
Not that Israel is not deserving of some comeuppance, if any state is so deserving. Arab feelings are still raw after decades and decades because Israel was created by imigrants who stold the land and destroyed the indigenous people and culture. That sin will not be forgiven until it is recognized and repaired in some fashion, which I favor.
It is instructive sometimes to capture the Israeli apologia in its essence: Palestinians (Arabs) made Jews captured 78% of Palestine by resisting the colonialization of their land. Arabs made the Jewish State go to war and expand into the WB. Arabs forced Israel to occupy and settle the WB and annex the Golan. And someday, these same Arab entities will force Israel to annex the WB completely.
I would say that Arabs are the best friends Israel ever had, forcing the nascent state into militarism and expansion and the policy of extinguishing Palestinian life and culture completely.
Criminals always say that the victim is the cause of their criminal behavior.
Richard Silverstein says
You no doubt believe virtually the same thing , that Israel couldn’t possibly destroy itself. But it can esp with the “help” of rightist knuckleheads like you.
Libertarian1, there is not one Arab country that would destroy Israel if given the chance, at least not if the Arab people have anything to say about it. On the other hand, give Israel a chance and they would wipe out the Arabs in a heartbeat. From what I’ve seen, the animosity of the Jews towards the Arabs is easily 10 times greater than any negativity the Arabs feel toward the Jews. Most have, or have had, Jewish friends and neighbors. But on the other hand, Zionism is strongly condemned. The theft of Palestinian land and water, and the oppression of the Palestinian people, is rightly despised.
The fact is that some hundreds of Nazis were, in fact, tried in open court, providing them “due process”, and evidentiary hearings before the bench. This “libertarian1” is just being sloppy.
Dave Terry says
I READ, “What about supporting Bradley Manning or Wikileaks? You say no and I say no, but neither of us will be interpreting the law. The Justice Department, just like the Israeli state prosecutor, will be.”
IS THIS A TYPO? I can’t believe that you actually think
that Bradley Manning should be punished or Wikileaks shut down.
YOU, who prides himself on exposing the mechanizations of the Israeli police state, NOW defends the US police state?
I’m STILL in a state of shock! Please tell me, I misread it.
Richard Silverstein says
You misinterpreted the context. What came before was something like “who’s to interpret what’s contributing substantial aid to Al Qaeda? Do Bradley Manning or Wikileaks. You & I say No…”
Sorry for the confusion.
If I were a judge and a prosecutor refused to share evidence with me for a given case, then I would declare the prosecutor in contempt of court and throw the case out. But if I’m reading this correctly, it seems that most of these judges don’t even bother to ask for the evidence in the first place. Absolutely bizarre.
You know, this responsibility that these judges evidently feel, responsible to people and country, is just sentimentalism, a foible of human life. Abdicating to the security services on the basis of sentiment is unforgivable. If ever ever you need a judiciary to act responsibly, it is in the instance of security services which are all too prone to exaggerated self-interest and the expansion of the power allocated to it. It is the court itself that is in contempt.
the judge will see all the evidence in all proceedings except the supreme court where the proscess is being challenged not the evidence, or if there is a plea bargain and agreement in which case the judge might not necessarily feel the need to see the evidence as the defence attorney agees to the prosecution’s request
One gets the impression that the separation of powers in Israel is more slippery slope than it is in the US. Here the Supreme Court made an unpopular decision that public schools needed to be integrated in the name of “equality.” It took, however, the National Guard and the Executive branch to make it happen in Arkansas.
In Israel, however, the Supreme Court rules and the IDF and probably the security services do what they want, dragging their feet and, in some cases, I believe, not complying at all. Power is not segmented, it is centralized in the military (and its adjunct, the Executive.) It just seems like the judiciary does not challenge the state on these detentions because it hasn’t the power to do so. It is rather like the judiciary is negotiating with the security services for authority. If it risks intervention in these cases, it risks losing more power. Just a thought.
does anyone else wonders how come this blog is about “human rights” but there isnt a single word about the massacre in syria? well, i guess the “massacre” on the marmara was much more horrific.
Richard Silverstein says
Does anyone else wonder how a commenter can so fundamentally misunderstand what this blog is about? It is about human rights in the context of the Israeli-Arab conflict. Last I checked, the Syria’s massacre of its population wasn’t part of the I-P conflict. So keep your comments on topic, read the comment rules & you’ll do OK here. If you don’t, you won’t.
BTW folks, I think Hasbara Central has just parachuted in a new “consultant.”
Do you really think that folks like “vova” are paid agents of the government of Israel, what with their poor spelling, grammar and even poorer argumentation? Surely, if such an effort existed, the government could hire better English writers at least, and then provide them with appropriate talking points that they could crib from. There’s no shortage of such people in Israel. Anyhow, I hope you and your family are having a happy and meaningful Shavuot.
Yes. All the faults lend credibility. Pefect prose would be seen as perfected propaganda.
Pea LOL just what I was thinking,
Richard Silverstein says
I don’t know what ova’s motives are. But the MFA is spending tens of millions on hasbara online initiatives that could easily draw such ppl here.
The hasbara hires are just normal-seeming people given a set of “talking points.” They’re not highly educated, articulate and well informed unless the recruit is already that way when he or she is hired. They’re showing up on the blogs and on Facebook.
Davey makes a good point, but there are many commenters here whose English language skills are quite good. A not very persuasive argument coupled with badly written English seems “authentic” but what’s the point? Someone like vova is hardly going to sway anyone’s opinion.
If the MFA is spending tens of millions on Hasbara online initiatives that involve paid shills, I for one haven’t seen any evidence of such either online or here in Jerusalem. It’s a small city. I live a 5 minute bike ride from the MFA. So far I’ve met folks from the IDF spokesperson’s unit, the guy that tweets as @israel (and is employed by the government to do so) and maybe one or two others who dabble online as part of their government employment. Had there been a massive government effort to seed online forums and blogs with paid Hasbara agents, I doubt it would have gotten past me.
That having been said, Mary seems to have some inside information – if you can expand on that Mary, and maybe even identify a couple of these shills, I would find that both entertaining and edifying.
Richard Silverstein says
The articles are widely distributed in the Israeli media outlining these intiatives & how much they cost. I think I read $150 million but you can look it up. And all for online hasbara. You might want to more discreet about exposing the level of your intimacy with paid government hasbarists. It might tend to diminish whatever standing you do have (if any) as an independent observer.
BTW, Mary surely can do what you suggest because each of these hasbarists has a clearly identifiable nametag which identifies him & his specific government affiliation. Or perhaps Mary has a scorecard issued by the MFA which provides their nicknames, real names, addresses, e mails, etc.
Deïr Yassin says
Now you live in Jerusalem ? A couple of weeks ago you were living in the States or Canada, that’s maybe why you don’t know about the paid hasbara in The-Only-Ethnocracy.
Electronicintifada has some stuff for you to read, and the original text in Hebrew is there so you can verify for youself:
Deïr Yassin says
A couple of articles on the organized hasbara. Just let me know if you want more informations. You can even study Hasbara at TAU and at Haifa University, and they’ve Hasbarafellowships all year around for foreign Hasbaradim.
Job offer for Arabs and gays. I don’t know if being gay and Arab gives a little x-tra (maybe a week-end in Edelstein’s settlement) but I know that they love hijab-wearing women as the student they sent to South Africa recently.
Richard, like I said, Jerusalem is like a small town. Whatever “intimacy” I have with paid government hasbarists comes from networking events that are open to the public and take place here with some frequency. The focus at most of these things is more on socializing and tech rather than ideology, so you can meet people that work for the government as well as people who work for progressive NGOs. I don’t have to be discreet, just giving you a glimpse into life in Jerusalem. But I’ll look into this $150 million program and see what’s online about it. I mean if it exists. it seems to me to be a pretty miserable failure don’t you think?
And yes, if Mary has any specific links, I’d love to see them!
I’m glad you’re keeping track of me, albeit quite badly Deïr Yassin. I fully live in Jerusalem – been here 8 years already. This doesn’t prevent me from traveling on occasion and that’s where you may have been confused. I read about the $2000 scholarships in exchange for 5 hours a week of online Hasbara, I know about Giyus, the Hasbara Fellowships, Stand With US, The Israel Project etc. etc. I guess my point is that I am unaware of any coordinated and effective Israeli govt. program that hires full time shills or sock puppets to go on web sites and promote particular pro govt. agendas. I remember that gay activist pro-Israel video that was so transparent that it was laughable – if that’s what the $150 million is being spent on, then it’s being spent rather badly.
Finally, is there not the equivalent of the Hasbarah Brigades on the other side of the ideological spectrum? The way some people make it sound, anyone that advances a “pro-Israel” position online is a Hasbarist, while anyone being critical of Israel is just expressing an honest opinion.
Richard Silverstein says
A coordinated, well funded counter to Israel hasbara? Indeed, all of us are swimming in Saudi rials & Iranian (whatever their currency is). In fact, I’m amazed when I find out that anyone of us who do this receive any funding from anyone. I know I don’t. But for those who do (I know for example Electronic Intifada is funded by some EU member states & possibly foundations) I say kol hakavod. In fact, I’m a tad jealous.
Deïr Yassin says
“Is there not the equivalent of the Hasbarah Brigades on the other side of the ideological spectrum ?”
I don’t know what you mean by ‘the other side of the ideological spectrum’: like colonialist ideology vs anti-colonial ideology ?
The Palestinians don’t need hasbara aka propaganda to state their cause: honest historians, many Israelis included have confirmed the Palestinian narrative, they don’t have to send their ambassadors and diplomats to try to prevent documentaries from being broadcasted on 60 Minutes like Michael-There-S-A-First-Time-To-Everything-Bob-Oren.
How about this new book by Shlomo Sand: The concept of a Homeland.
The interview is very long, but I really recommend it:
Not only does Sand deconstruct the myth of Jews in the galut eternally longing for Eretz Israel as a physical place, he also reveals the generalized torture that he saw during his military service – a secret he’s kept for 40 years and that’s had him traumatized for life, he also dedicates the book to the Palestinian village of Sheikh Muwannis on whose ruins TAU, various museums and Sand’s own neighbourhood are standing today.
You see, history is enough: Palestine doesn’t need any cheap talking points, thruth and justice is on her side. Amîn.
I definitely met one of these people on Facebook. In one of the ‘peace and reconciliation’ groups I ran across a young Israeli man who was consistently rude, accusatory, and posting outright lies when he wasn’t posting propaganda and Islamophobic YouTube videos. I took a look at his profile and then looked at his comment history. The guy had a total of 8 friends, never posted anything on his Facebook wall, belonged to no other groups and spent all day on that one group page, which was created by a settler living in the West Bank. If he wasn’t a paid hasbarist, I’m Mother Teresa.
Dave Terry says
vova; I appreciate your concern over “human rights”, generally, however these issues have much less to do with US foreign policy and there are other venues on which to discuss those violations of human rights, as barbaric as they may be.
As Americans we must be primarily concerned with those
attrocities for which OUR government is partly or wholly responsible for.
If we are to be of any value to the cause of freedome, we MUST not use the shotgun approach, but FOCUS on one issue at a time
Deïr Yassin says
I don’t want to hijack the thread but I simply have to post this information. Orwell couldn’t have done it better.
This is breathtaking hypocrisy. I’ve often thought that the US’s destruction of Iraq and Afghanistan had the latent purpose of providing contracts for reconstruction but that Israeli devastation of Gaza was pure meanness, not economic. Wow.
Piotr Berman says
It is hard to tell if it still qualifies as hypocrisy, or as an example of the legendary Jewish sense of humor (or at least an attempt).
Grim black humor. Destroy everything and then make money rebuilding it. It is mind-boggling cynical.
I’m sure the Palestinians don’t think it’s a bit funny.