An interesting drama is unfolding in Israel as I write this. On July 9th, Amir Oren published a blockbuster story. In the findings of a judicial inquiry into the death of failed Mossad spy, Ben Zygier, the judge had referred to the case of another secret prisoner. One the Israeli public hadn’t previously known about.
But Prisoner X2, as reported by Oren, is an entirely different case. In a follow-up article, published few days later, Oren added more details about him and tried unsuccessfully to persuade his wife to speak publicly. This article was censored and removed from Haaretz’s website, but not before I managed to save a screenshot and translate it. In his story, Oren revealed this man had already been imprisoned for some years on charges no one knew. Not only do we not know his name or what he did, we don’t know precisely where he is except in a prison somewhere in Israel.
If this doesn’t frighten you, imagine here in the U.S. if the FBI could simply disappear security agents, soldiers, or even State Department officials who messed up or embarrassed the national security apparatus. Imagine Aldrich Ames, Jonathan Pollard, Daniel Ellsberg, or even Bradley Manning arrested in secret, hauled before cooperative judges, not able to see the evidence against them, imprisoned in secret. No average American citizen knowing a thing about it. For all the criticisms many Americans have of our current misdeeds, and I’ve expressed many, at least the government can’t (yet) get away with this. But they can in Israel.
That doesn’t mean that this sort of skulduggery can’t or won’t happen here. After all, American’s national security agencies get some of their best ideas from Israel’s. Israel pioneered drone warfare and targeted killings and showed us the way. Our NSA produced the first cyberwar weapons together with the IDF’s Unit 8200. We have much to learn from each other!
Here’s the next piece of the puzzle: on the same day (July 9th) as Oren’s first article was published, Israeli radio host, Nissim Mish’al aired an interview (Hebrew) with noted criminal defense attorney, Avigdor Feldman. You’ll recall that the latter was the last person to see Ben Zygier alive other than his wife. He visited him in order to determine whether he could help with his legal defense.
In this interview, Feldman spoke for the first time on Israeli radio of Prisoner X2. Not only that, but he said there were more than one or even two Prisoner Xs. In other words, that Israel has had a number of grave security breaches by Israeli security agents who were tried and imprisoned in secret. This will explain an important part of the post that will follow.
Oren had implied without stating it clearly, that Prisoner X2 was a former Mossad agent. In the radio interview, Feldman revealed that his “crime” was far more grave than anything Zygier did. While the latter’s crime was basically that of a well-intentioned individual who messed up badly, the new case was far more serious. It involved a grave breach of national security which, when Feldman first heard of it, caused him to be struck dumb. Coming from a criminal defense attorney who’s represented some of the gravest security cases in Israel’s history including Marcus Klingberg and Mordechai Vanunu, you know it’s BIG.
In fact, while he was speaking to Mish’al, Feldman told him (it wasn’t entirely clear that he was joking) that he was looking in his rear view mirror as two men were following him. In other words, the lawyer knew that he was breaching security protocol in exposing this secret. Given the entirely opaque manner in which the Israeli justice system deals with security cases, it takes balls to do what he did. This is a man who makes his living from representing those charged with criminal or security offenses. To go up against the very system that allows you to earn a living is a very big deal. Especially in a national security state like Israel.
The third piece of the puzzle is an article just published in Haaretz (Hebrew) by Uri Misgav. He recounts a strange tale of an Israeli lawyer (unnamed) who one day finds in his office an individual bearing a secret letter from the state prosecutor. The letter accuses him of “violating customary norms” involving security cases. Though in most democracies even security officials have to refer to case law and criminal codes, in Israel the secret police can get you for breaching what they call “customary norms.”
The article never makes clear what this attorney did to violate these norms. But if we assume the subject was Avigdor Feldman (and an independent Israeli source confirms that it is) , then we know what he did: he exposed the existence of not just Prisoner X2 but of others as well. What’s truly astonishing about the letter is that it threatens him with criminal prosecution for what he did. However, it notes that the state prosecutor decided not to prosecute for unspecified reasons. But the clear implication of the letter is that if you continue playing for the wrong side that there are things the State can do that will make your professional life a living hell.
The State threatened Feldman not for revealing Prisoner X2’s existence, because Oren had done that based on a publicly available report of a judicial inquiry. He was threatened because he pointed out that the Emperor, that is the security establishment, had no clothes. That they had spirited away not one, not two, but many Prisoner Xs. He didn’t say who they were or what they’d done. He merely broke the spell the secret police held over the Israeli body politic; that notion of perfection and invincibility it carried like a banner ever since the founding of the State. For that, he’d become an enemy of the State.
What can it do to harm someone like Feldman? Security cases all involve classified documents and information. All judges, prosecutors and defense attorneys must undergo a security screening process by the Shabak. Not only are they investigated by the agency, but they are given a course on the subject of these documents, how they are to be handled, and how the security services will conduct business with them. Once the lawyer receives his security clearance he or she is permitted to represent any security detainee. Theoretically.
But here’s how the system works in practice. When you are suspected of a security offense, whether you are Jew or Palestinian, you are brought in for interrogation. You may not consult your attorney, usually for days or even weeks. During that period, you are entirely at the mercy of the Shabak. Often, you can’t consult with or contact anyone, including your family. There comes a point in this process when the investigators will begin to discuss legal representation. They may ask who the detainee has in mind to represent him.
This is where the security services work the process to the hilt. There are multiple interests at work here: the detainee, possibly shamed by the charge against him, may not want his case to be known publicly. If the case is embarrassing enough to the Mossad or Shabak, they don’t want a trial either since it will place them in greater danger of the public and media finding out.
So when the suspect tells his interrogator he wants an Avigdor Feldman, the Shabak responds that while Feldman may be a good lawyer, they not only don’t trust him to keep secrets, they can’t work as well or closely as they might, and couldn’t offer him nearly as good a deal as they could if he hired a different lawyer with whom they have far better relations. The prisoner clearly understands that if he wants to cut a deal favorable to himself that a pesky attorney like Feldman isn’t the one he wants.
That’s the way the security services work the system without being seen to do so. Feldman supports his claim by noting that the circle of attorneys who do high level security cases is very small. Of those few who do them, a number of the lawyers have extremely close connections to the security apparatus. One of Feldman’s most famous clients was Marcus Klingberg, who was a high level Soviet spy in Israel. The latter was approached in prison by an attorney who suggested that if Klingberg chose him to represent him and agreed to a three-way deal that involved the missing Israeli airman Ron Arad, and another Soviet spy, Shabtai Kalmanovich, that the lawyer could cut an extremely good deal for him.
Another amazing element in Misgav’s post was the suggestion that there is a “parallel” system of justice in Israel for security cases that are extremely sensitive. These are cases like the ones I mentioned above, in which an Israeli Jewish suspect has betrayed the tribe and gravely damaged the system. He is arrested, interrogated, tried and imprisoned in secret. To conduct such a “discreet” judicial process, it requires a cadre of willing defense attorneys. Ones who will play ball with the Shabak. Who will advise their clients to accept a deal offered that might not really be in their best interest, but that will spare everyone, but most of all the State and its security minions, a lot of headaches.
Misgav/Feldman doesn’t just blame the lawyers. He includes the judges too as willing collaborators in the system. They allow the prosecutors extraordinary leeway in presenting their case. They review and approve plea bargains without even knowing the charges or evidence. They make rulings without seeing evidence or without allowing the defense to see it. They consult or collude with the prosecution in ways that would never be permissible in a truly democratic country.
In order to clean up messes made by security operatives who’ve gone bad, it requires this parallel judicial system. But being that it is a secret system with even less guarantees for the rights of the defendant than the normal judicial process, it’s prone to serious breaches. It’s also prone to grave errors like the ones that led to Ben Zygier’s suicide (he was one of these detainees sucked into the parallel judicial universe).
If someone could tell me that these processes needed to be conducted in camera because exposing them would endanger lives or even the security of the state, I might not be as dismissive as I am. But any reasonable observer knows the real reason for secrecy is to protect the security fiefdom. To protect it from embarrassment and even ridiculue. To preserve its enormous budget. To maintain it’s primacy in the official state pecking order. Unlike in the case of Louis XIV: L’etat ce n’est pas le Shabak. Security officials confuse themselves with the State. They believe their interests are interchangeable with those of the State. But that’s not quite true. Especially not when the security apparatus becomes a law unto itself.
In some senses, what Feldman and Misgav are describing is a legal Wonderland in which the suspects are sucked, like Alice, down a rabbit hole. The world they see once they land at the bottom looks like the normal judicial system. There are judges, lawyers, courtrooms, etc. But everything is distorted and nothing is quite as it seems. That’s how Marcus Klingberg could be kidnapped, tried and imprisoned in secret for years, while his family was forced to offer a cover story saying he’d been hospitalized in Europe for a nervous breakdown. It’s how something very similar happened to Ben Zygier. It’s how Prisoner X2 was spirited away.
Feldman is the canary in the coal mine. He’s warning Israelis that there are many more Prisoner Xs and that if they don’t do something, the system will only get worse. For that, the entire wrath of the State comes down upon his head. Thank God there are Avigdor Feldmans, Bradley Mannings and Edward Snowdens. Where would we be without them? And what if the State systematically destroys them? What then?
Thanks to Dena Shunra for research assistance with this post.