Analysis: How current violence fizzles debate over national security vs civil liberties

Knesset panel this week unanimously voted in favor of country’s controversial emergency law with its unusual limitations on detainee rights.

December 18, 2015 08:44
3 minute read.
Israeli policemen detain a Palestinian protester during clashes near the Jewish settlement of Beit E

Israeli policemen detain a Palestinian protester during clashes near the Jewish settlement of Beit El. (photo credit: REUTERS)


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It was a quieter time and that quiet made for some louder debates.

In April 2013, the Knesset Constitution, Law and Justice Committee extended the country’s controversial emergency law with its unusual limitations on detainee rights largely by a series of razor-thin 5-4 decisions, following a heated debate with many MKs wanting to end the law out of concern for civil liberties.

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The same law on Monday passed the same Knesset committee with a unanimous vote, including with votes from opposition MKs.

MK Revital Swid (Zionist Union) did ask some questions, but did not fight hard like Labor had in 2013 and the votes were much more one-sided with the attacks on the law for violating civil liberties more toned down.

What happened between April 2013 and December 2015? First, a few more specifics about the law itself.

One controversial provision permits interrogating a detainee for up to 96 hours without being brought before a judge to review the detainee’s detention.

Under standard Israeli law, a detainee must be brought before a judge within 24 hours, or within 48 hours in certain exceptional cases.

The emergency law also permits delaying the detainees first meeting with a lawyer up until 10 days with approval from a high-ranking Shin Bet interrogator and until 20 days with approval from a court.

Under standard Israeli law, a detainee must have access to a lawyer without delay, or within 48 hours in exceptional circumstances.

Like in 2013, government officials said the law struck the right balance between national security and civil liberties, urged extending the law as a necessity for protecting the country and strongly implied that if the law failed, the blood of future civilian victims of terrorist attacks, which became harder to stop, would be on their hands.

In 2013, several MKs pushed back on this point, saying the law was re-legalizing practices the High Court of Justice had annulled.

Also, they said it was inconceivable that a law that was supposed to be temporary could be indefinitely temporarily extended, as this one has been since 2006.

There was no comparable rebellion this time.

Why? As of Monday, the country was months into the “third intifada,” a situation that has transformed the view on the ground and most Israelis’ views.

When there were few attacks in 2013, warning of future attacks was abstract, which did not have a prayer of convincing skeptical opposition MKs.

But this time, any MKs voting against a law like this could fall under massive attack as too weak and undermining national security.

Swid’s stand for civil liberties was similarly half-hearted on Tuesday, being willing to support the state currently holding hundreds of administrative detentions of Palestinians as well as a few Jews, while meekly requesting that the detentions be for shorter periods.

She explained that though detention periods should be shorter, “especially in these days it is impossible to give up on this tool because we need to protect the state.”

The High Court itself has been legalizing a number of controversial new measures for combating the current wave of violence, often referencing the current spike as part of its justification.

Information presented by the state does indicate that quieter periods in recent years produced much smaller numbers of using controversial measures, whereas using the measures has spiked when violence has spiked.

This could help the state’s argument that it is judicious about when it uses these methods.

Another twist here is that even as the Palestinians represent the vast majority of administrative detainees, the state has recently and loudly detained some Jewish rightwing activists.

As some right-wing lawmakers join in some of the opposition to the use of tougher tactics on Jewish terrorist suspects, suddenly it also becomes paradoxically harder for critics on the Left to slam the tactics as biased against Palestinians.

The bottom line is that had this debate re-arisen over the summer, when violence was relatively down, the state would have had a much harder time maintaining many of its emergency investigation and law enforcement powers.

Once the debate was set in the current more violent context, the state’s continued powers in these areas, at least for another year, was virtually assured.

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