High Court President Esther Hayut openly suggested a one-month extension to the government, which was noncommittal.
In addition to the broader question of whether the Knesset law empowering the Shin Bet to perform the surveillance could ever be constitutional, the High Court is in the odd position of having to decide whether to extend the law beyond its expiration date.
When the Knesset passed the law in July 2020, it declared January 20 as the expiration date of the special Shin Bet coronavirus surveillance power.
This expiration date was put in place given that throughout the country’s history the Shin Bet has been focused only on terror threats and almost always has been instructed to stay away from surveillance of citizens.
Given the strong opposition to permitting the Shin Bet to carry out surveillance on regular citizens, the Knesset believed it was important to make it clear that the power was temporary and only for the corona crisis.
However, the Knesset recently dissolved and the timing caught the government by surprise, such that the legislative branch did not get to the issue of extending the expiring law.
A lawyer from the Attorney-General’s Office, Shosh Shmueli, argued before the court on Sunday that the old law could be automatically extended until July 2021.
This would be based on a general principle that extends Knesset laws, which are necessary for continuing to run the state on an ongoing basis, until a new government arrives which can address issues in a more permanent fashion.
From the outset, the justices seemed nonplussed by this idea.
Hayut as well as Justices Hanan Melcer and Neal Hendel, all suggested that such a thoughtless automatic extension of an extreme and unusual law would double the time it applied for.
They added this was not what the Knesset or the courts intended when addressing the issue in the past. Back in July 2020 no one had expected that two million Israelis would already be vaccinated by now.
When Shmueli said that there was nothing about the High Court’s prior orders or decisions which prevented an automatic extension to July 2021, Melcer interjected, “then maybe you did not understand them correctly.”
Hayut also repeatedly asked, “is there really so much utility in this very very extreme tool to justify the harm,” to citizens’ privacy rights?
Justices Daphna Barak Erez and Anat Baron expressed frustration that Shmueli seemed to be using procedural technical arguments to avoid their substantive questions about the law’s legality and whether the Shin Bet was actually still helping.
Justice Yitzhak Amit pointed out that Shin Bet tracking had sent around 400,000 people into unnecessary quarantine.
While earlier on in the corona crisis, the justices accepted Health Ministry statistics about the Shin Bet’s effectiveness being beyond debate, on Sunday they continually harangued a health ministry official to defend various questionable assumptions which were the basis of the supposed statistics.
Hendel received no answer from the state about when – meaning if infections per day dropped below a certain number such as 1,000 per day – it would be willing to limit the use of Shin Bet tracking.
On December 16, the government’s ministerial intelligence committee had committed to reducing use of the Shin Bet tracking to only those citizens who did not cooperate with epidemiological probes.
It was unclear when the High Court would rule, but there was a high likelihood that it would decide by Wednesday.