A Reexamination of Administrative Detention in a Jewish and Democratic State Elad Gil Supervised by Mordechai Kremnitzer A Reexamination of Administrative Detention in a Jewish and Democratic State Elad Gil Supervised by Mordechai Kremnitzer Policy Paper 7E Jerusalem, August 2011 Text Editor (Hebrew): Keren Gliklich English Translation: Michael Prawer Text Editor (English): Shulamit Berman Typesetting: Nadav Shtechman Cover Design: Yossi Arza Printed by Art Plus, Jerusalem ISBN 978-965-519-096-0 No portion of this book may be reproduced, copied, photographed, recorded, translated, stored in a database, broadcast, or transmitted in any form or by any means, electronic, optic, mechanical, or otherwise. Commercial use in any form of the material contained in this book without the express permission in writing of the publisher is strictly forbidden. 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The Israel Democracy Institute is the recipient of the 2009 Israel Prize for Lifetime Achievement – Special Contribution to Society and State. The statements published in the policy papers do not necessarily reflect the position of the Israel Democracy Institute. Table of Contents Introduction 9 Chapter One Definition 19 A. The Purpose of the Detention 22 B. The Authorized Official 25 C. Duration of Imprisonment 28 Chapter Two State of Emergency (Detention) Act – The Normative Framework 30 A. Historical Background of the Enactment 30 B. Provisions of The Emergency Powers (Detention) Act 35 C. Comparative Survey: Administrative Detention in the West Bank 116 D. “Only in a period in which a state of emergency exists in the state...” 127 Chapter Three International Law and Comparative Law 154 A. The International Law 154 B. The Struggle against International Terrorism in Domestic Law 159 C. The United Kingdom 161 D. The United States 177 E. Comparative Survey of Other States 194 F. Secret Evidence in International Criminal Courts 203 Chapter Four Interim Summary 207 A. The Tension between Administrative Detention and the Rule of Law 207 B. Proportionality 213 C. Implications of Repeal of the State of Emergency (Detention) Act 226 Chapter Five Conclusions 229 A. The State of Emergency Should Not be Extended Automatically 229 B. Legislative Establishment of Additional Legal Tools 230 C. Changes and Additions to the Legal Regime Governing Administrative Detention 231 D. Changes in the Laws of Evidence: Reinforcing the Right to Due Process 238 Epilogue 249 Administrative Detention – An Opportunity for Reevaluation Mordechai Kremnitzer 254 Appendix Proposed Emergency Powers (Protection of State and Public Security) Bill 269 Introduction On January 5, 1895, a Jewish captain in the French army was arrested in France for the offense of treason—spying for Germany. He was convicted, stripped of his rank in a humiliating ceremony in the presence of raging mobs, and condemned to life imprisonment on Devil’s Island, near the shores of French Guiana. The evidence upon which Alfred Dreyfus’s conviction was based was secret evidence that had been collected by the French intelligence agent, Marie Bastian. It consisted of one document, found in the office of the German military attaché in Paris. Dreyfus was not aware of the existence of this piece of evidence, and hence had no opportunity of challenging its authenticity or the reliability of its contents. It was only eleven years later that a Parisian court cleared his good name and restored his rank. The Dreyfus affair is a symbol of unjust legal proceedings. It demonstrates the latent dangers in reliance on privileged material for the denial of a person’s freedom, and vindicates the procedures and strict defenses of the rights of the accused that are insisted upon in modern criminal law. These safeguards are not available in the framework of administrative law, but the denial of liberty is definitely part of the proceeding. The Emergency Powers (Detention) Act – 1979 (hereinafter: the Detention Act) grants the minister of defense the authority to detain an individual without trial in order to protect state security and public safety. A detention order may be issued for periods of up to six months, and consecutive orders make it possible to incarcerate a person for many years (theoretically, for an indefinite period) without 9 Policy Paper 7E A Reexamination of Administrative Detention having been convicted of a criminal act. This authority is universally referred to as “administrative detention.” Administrative detention is not an Israeli invention, and Israel is not the only Western democracy that confers such far-reaching power upon the executive branch. Similar laws have been enacted, repealed and reenacted in a number of states, among them the United States and the United Kingdom. The question of the suitability of such powers to a democratic system of government has been discussed all over the world as part of the overall discourse concerning the legal boundaries of the struggle that a former president of the world’s most powerful country has called “the war against terrorism.” Despite its worthwhile objective, the Detention Act severely infringes the basic tenets of reasonable judicial process as it enables the state to deprive individuals of their freedom and dignity by removing all the guarantees of a fair trial that are recognized under criminal law. In its present form, the act does not allow prisoners to know the reasons that led to their detention. Moreover, it does not allow them to defend themselves properly. In most cases, the evidence that leads to detention orders is kept hidden from the suspects and from their lawyers, and the proceedings are far more reminiscent of Kafka than of a trial taking place in a Jewish and democratic state. The current legal arrangement in Israel is actually the legacy of security regulations that were established by the British authorities at the end of the Mandate period, which were directed, first and foremost, against the yishuv (the pre-state Jewish community). These provisions symbolized the arbitrary attitude of a cold, remote regime toward the residents of an occupied country and the glaring injustice inflicted on them, which only fanned the flames of Jewish resistance to Mandatory rule in the Land of Israel. The Detention Act was submitted to the Knesset in 1979 by then-Justice Minister Shmuel Tamir thirty- one years after he and forty-nine other underground fighters had been 10 Introduction exiled to Kenya under these same regulations. The act sought to temper the rigidity of the Mandatory security regulations and to dispel any doubts about the perversion of justice, which they had created. However, the act retained essential provisions that are unacceptable and that deviate from Israel’s obligations under international law. As a result, and without delving into this issue, for about thirty years, there has been a legal arrangement in the statute book that rends the fabric of the fundamental principles of law and society in Israel, and erodes our international standing as a democratic, law-abiding state. No one would dispute the fact that the State of Israel has been grappling for years with a tangible and plaguing threat of terrorism, which has taken the lives of numerous Israelis and has severely disrupted our way of life. Nonetheless, we must bear in mind that the best way to confront the gamut of terrorism offenses inside Israel’s borders—from membership in a terrorist organization to murder—is within the framework of criminal law. It is necessary to emphasize that the Detention Act applies only to the State of Israel proper, and is not a basis of authority for carrying out administrative detentions in Judea and Samaria. Administrative detention is a “stepchild” that is intended to prevent potential dangers to state security from materializing, only when it is impossible to do so under criminal law. This study seeks to examine the authority for administrative detention in Israeli law.1 It inquires into its purpose and whether that 1 This study is an examination of the Emergency Powers (Detention) Act that confers the authority for administrative detentions within the borders of the State of Israel. This arrangement is supplemented by a military order conferring the authority for administrative detention in the West Bank. A brief survey of the military arrangement is presented in Chapter Two, section C.