Volume 4, Spring 2004, IN THE NAME OF SECURITY 2 Introduction: In the Name of Security Samera Esmeir 11 Al-Mutafaqim The Pessoptimist, State Security and the Exception-Rule in Legal Practice Farid Ghanem 23 Political Control and Crime The Use of Defense (Emergency) Regulations during the Military Government Alina Korn 33 Men Under the Military Regime Areen Hawari 45 The Archive Law, the GSS Law and Public Discourse in Israel Hillel Cohen 57 In the Name of Insecurity Arab Soldiers in the Israeli Military Rhoda Kanaaneh 67 Wars of Public Safety and the Policing of History Allen Feldman 82 Special Inquiry: Security Practices and Legal Challenges Rina Rosenberg 91 Elections Disqualifications Cases Excerpts from Legal Arguments Submitted by Adalah to the Central Elections Committee and the Supreme Court Adalah 101 Ban on Family Unification Excerpts from Supreme Court Petition: H.C. 7052/03, Adalah, et. al. v. The Minister of Interior and the Attorney General Hassan Jabareen and Orna Kohn 112 State of Emergency Information Sheet No. 1 - Submitted by Adalah to the United Nations Human Rights Committee Adalah 128 Concluding Observations: UN Human Rights Committee - Israel, 2003 International Covenant on Civil and Political Rights United Nations Human Rights Committee On the Collective Criminalization of Introduction: In the Name of SecurityIn the Name of Security PoliticalSamera Esmeir Protestors Probing Legal Doctrine individual or a group against the need for public order and/or national security. In a recent It is difficult to devote an issue of a critical academic article, Supreme Court Chief Justice journal published by a human rights Aharon Barak summarizes the position of the organization to the theme of “security.” For in Supreme Court on this matter.4 In the section such a case, the work of critique is expected to in which he discusses the question of national juxtapose security considerations with human security and individual liberties, he writes:5 rights, and to reveal the violations of the latter On the one hand we must consider the values and carried out “in the name of security.” The principles relating to the security of the state and attempt to challenge the legality of rights its citizens. Human rights are not a stage for violations based on security considerations often national destruction; they cannot justify relies on several main arguments: exposing the undermining national security in every case in all fallacy of security-centered reasoning in a given circumstances… But, on the other hand, we must situation, asserting the superiority of other consider the values and principles relating to human important democratic values, or alerting against dignity. National security cannot justify the disproportionate restriction on rights. undermining human rights in every case and under Human rights lawyers are expected to master all circumstances. National security does not grant these legal doctrinal arguments and to vigorously an unlimited license to harm individuals. employ them in the juridical field. Democratic nations must find a balance between Each of these doctrinal arguments conceives these conflicting values and principles. Neither side of security as an objective state: in the first can rule alone… argument, as a matter of empirical proof, and in the second and third arguments, as a matter to Chief Justice Barak probes the question of the be exposed or balanced against other rights or balancing formula in the context of discussing values. Notwithstanding their critical pretension, terrorism. In his text, security gains meaning these arguments fail to escape the meta-narrative through a discussion of war and violence, death of security-centric reasoning that takes security and pain. The text operates to disregard other to be “the condition of being protected from or meanings of security and leaves us with a not exposed to danger.”1 Consequently, singular meaning: a state of peace, safety, 2 “security” continues to carry one shared protection, and well-being. The balancing Adalah’s Adalah’s meaning between both human rights and formula is, therefore, unthinkable without this security advocates: an objective and natural state objectivist and naturalist definition of of safety.2 security. Thus defined, the heavy toll of Review This objectivist and naturalist definition of restricting human rights and balancing them security is prevalent in Israeli Supreme Court against security considerations emerges, at rulings. It is constitutive of the balancing times, as a necessity. formula through which the Supreme Court Most legal scholars writing on the subject of responds to legal challenges against state security security have also adopted the balancing formula practices endangering peoples’ rights.3 Through in their (critical) analysis of questions of security this formula, the court weighs the rights of an and human rights. Despite the various Introduction: In the Name of Security approaches represented in this legal doctrinal A Black Hole scholarship, it is possible to generally argue that an objectivist naturalist definition underlines Demography, Arab-owned lands, Arab their analyses.6 Palestinians moving and crossing borders, Scholars writing from outside the juridical political dissent, certain forms of knowledge, field approach questions of security in a different speech, memory and the relationship to the past fashion. Hanna Herzog and Ronen Shamir, for – all of these, as the articles in this issue example, argue that “the concept [of security] elaborate, have been realized as security not only relates to basic notions of ‘law and concerns. All of these non-security issues have order,’ to personal protection against harm, or become part of the state security problematic. to concrete threats of violence and war. In its To understand the transformation of these deepest sense ‘security’ is associated with the non-security issues into security issues, one ability of the Jewish state to remain sovereign...”7 needs to historicize and contextualize the use of Despite the attempt to transcend the limited the term security and its socio-linguistic definition of security, it remains, in their operations. The term security in the current analysis, closely related to notions of threat. Israeli context is linguistically employable at any These, however, are not specific threats, as the given moment without a need to reference the conventional understanding of security would reasons for any of its particular operations. Take have it. Rather, these are threats jeopardizing the for example a recent article in the daily Hebrew very existence of the state as Jewish. newspaper Ma’ariv which reported that Israel’s Are there other ways to conceive of Israeli Prime Minister was presented with a report state security practices that do not reproduce the about a specific security threat: polygamy among legal argumentation used before the courts to Arabs in Israel, resulting in a higher birth rate.8 challenge these practices? Whereas these What is of importance in this example is the doctrinal legal arguments are instrumental for newspaper’s unquestioned acceptance of the human rights lawyers working “before the law,” categorization of polygamy as a security threat. they only offer one perspective on the workings The term security contains the reasons, the of security. Is it, therefore, possible to discuss means and the ends, and as such, it justifies its other logics of security without adopting the own deployment. It is a magical term able to 3 commonsensical logic that security is achieved absorb any and all content. It is like the Black Adalah’s Adalah’s by the elimination of threat? Can we talk about Hole in outer space into which energy, stars and the suppressed rights of the oppressed without other heavenly matter collapse and disappear. being forced into a discussion about the The recent criminal indictment of Sheikh Review empirical existence or non-existence of a threat? Ra’ed Salah, the head of the Islamic Movement More specifically, in the case of Israel, how is in Israel, is another case in point. In June 2003, it possible to critically address the practices the state prosecutor submitted an indictment carried out “in the name of security” against against Sheikh Ra’ed Salah and four other Palestinian citizens of Israel without recasting members of the Islamic Movement, as well as these citizens, or some of their practices, as a two Arab humanitarian organizations for threat? allegedly “supporting terror” by transferring OnIntroduction: the In the Collective Name of Security Criminalization of Political Protestors funds to charity organizations associated with Security and Securing Hamas in the 1967 Occupied Territories. While this case goes beyond our discussion, pointing Security can be defined as the negation of fear. out the operation of the emergency law against It can also be defined as “freedom from doubt; “supporting terror” on which the main charges confidence, assurance… well-founded in the indictment are based, is central for confidence, certainty,” and as “a means of illuminating the workings of security. This securing or fixing in position.” “To secure,” doctrine, similar to the doctrine of “material therefore, is not only an act aimed at the support” in the United States, constitutes a legal protection from danger. It also an act aimed at mechanism through which the black hole of fixing a certain position, solidifying and security operates. These doctrines, as David Cole objectifying it. To seek to secure