Legislation grants extensive powers to investigate security suspects; court debating legality of law.
By DAN IZENBERGGaza arrest 224.88(photo credit: AP)
The Knesset has begun to discuss extending temporary legislation granting the Shin Bet (Israel Security Agency) extensive powers to investigate security suspects at the same time the Supreme Court is holding hearings on whether this same legislation violates human rights and should be cancelled, The Jerusalem Post has learned.
The temporary security law will expire unless the Knesset renews it by December 28. It allows the state to hold security suspects in detention for up to 96 hours without being brought before a judge to extend their remand in custody, whereas "regular" criminal detainees must be brought before a judge after no more than 48 hours.
It also allows the state to ask for an extension of the remand for up to 16 more days without allowing the suspect to be present at the court hearing, whereas "regular" criminal suspects must always be present at remand hearings.
Furthermore, it allows the state to prevent security suspects from consulting a lawyer for 50 days, whereas "regular" criminal suspects must be allowed to consult a lawyer after a maximum of 21 days.
The temporary law went into effect June 29, 2006, for a period of 18 months. It was legislated under pressure from the government and the Israel Security Agency (ISA) after Israel withdrew from Gaza and Israeli military law no longer applied to Gaza residents.
The ISA felt that Israeli law regarding the detention of suspects would make it more difficult for interrogators to extract vital information from terrorists because of the "interruptions" in the interrogation process when suspects were taken to court for remand extensions and that state security could be threatened if they were allowed to see their lawyers after "only" 21 days.
But many critics charge that no other Western country coping with terrorism has put such an allegedly draconian law into its statute book, and that Israel should not do so, either.
During the debate prior to the original approval of the temporary law in 2006, Israeli legal experts and local and international human rights organizations protested against it. In one letter, a group of 25 jurists, including Haifa University professors Emmanuel Gross and Ali Saltzburger and Hebrew University professors Mordechai Kremnitzer and David Kretzmer, warned that the law was dangerous and "would cause serious damage to the most basic norms of our legal process and the fundamental principles of the criminal process in Israel."
Now, however, the Knesset Law Committee is discussing extending the legislation by another 18 months.
In a discussion on Monday, a senior ISA official told the committee that the security agency "could not get by without the law." He said it had helped, for example, to uncover a terrorist who participated in the kidnapping of Gilad Schalit. He also provided figures showing that despite its alleged effectiveness, the law had been used sparingly.
However, at the same time the Law Committee is considering the ISA's request to extend the law in its present form or with modification approved by the Knesset, the High Court of Justice is considering nullifying it, or at least some of its provisions, on the grounds that it violates the Basic Law: Human Dignity and Freedom.
On October 21, Attorneys David Halevi and Rashad Zoabi, of the Jerusalem branch of the Public Defender's Office, appealed to the Supreme Court to allow their client, a Palestinian security suspect from the Gaza Strip, to attend a court hearing scheduled to extend his remand in custody. The lower courts had already rejected the attorneys' request on the grounds that the temporary law permitted the hearing to take place without in the absence of the detainee.
In their appeal to the Supreme Court, Halevi and Zoabi specifically attacked Articles 5 (1) and 5 (2) of the provisional law, which allow the court to hold remand hearings without the detainee being present.
They asked the Supreme Court to overturn the lower court decisions and also to cancel the allegedly offending articles of the provisional law because they "deny the detainee's constitutional right to be present at court hearings, his right to a fair legal procedure and his right to dignity and freedom." The Supreme Court took the demand to cancel the provisions seriously.
Normally, appeals to the Supreme Court against detention procedures are heard by one justice. In this case, acting Supreme Court Justice Uzi Fogelman referred the appeal to a panel of three. On October 22, Justices Edna Arbel, Salim Joubran and Fogelman handed down a decision stating that "the constitutional questions raised [by Halevi and Zoabi]" would be heard separately from the portion dealing with the specific appeal of the detainee. The court also ordered the state and the public defenders to address the Knesset's deliberations to extend the provisional law.
It gave Halevi and Zoabi 30 days to present their arguments and another 30 days to the state to respond. It then gave Halevi and Zoabi 15 days to reply to the state's arguments.
A few days ago, the public defenders submitted their brief.
Nevertheless, it will take at least 45 more days before the court can rule on the constitutionality of the law. That means that the Knesset will be in the uncomfortable position of having to decide whether or not to extend the law knowing that its constitutionality is under examination by the court, but not knowing what ruling the court will hand down.
