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.