Rule of Law: Transforming the Shin Bet

Will security agency be transformed – or are the changes only symbolic?

Human rights activists demonstrate Shin Bet Banana 370 (photo credit: Reuters)
Human rights activists demonstrate Shin Bet Banana 370
(photo credit: Reuters)
Possibly the most powerful force in Israel up to this point, the Shin Bet (Israel Security Agency) last week may have undergone no less than a revolution, which could handcuff its power and completely transform its method of operation.
The state’s moves toward establishing a new department in the Justice Ministry solely dedicated to investigating complaints against the Shin Bet and its interrogators reached a major point with the appointment of former head prosecutor at the IDF’s Military Advocate-General’s Office, Col. (res.) Jana Modgavrishvili, to head the department.
One of the most respected and feared intelligence agencies in the world will now need to look over its shoulder regarding its interrogation tactics, and every interrogator will need to think twice about whether he will be as shielded from prosecution as he once might have been.
The current system for investigating complaints against Shin Bet interrogators was put in place in 1992 and at the time, was considered an improvement on the prior system.
That system will be replaced by the new Justice Ministry department headed by Modgavrishvili, by most accounts as a result of the February 2012 recommendations of the Turkel Commission’s report, which evaluated whether Israel’s internal apparatus for self-investigation met international law standards. (Although the Turkel Commission was initially set up to investigate allegations of violations of international lawsurrounding the 2010 Mavi Marmara flotilla incident, it also received a mandate to investigate the state’s entire self-investigation apparatus.) While most areas of Israeli investigations, such as the IDF’s, were declared up to par, the Shin Bet’s investigations were declared broken.
In its report, the commission appeared to endorse the Public Committee Against Torture in Israel’s estimates that since 1992, out of 700 complaints, there have been zero investigations – let alone indictments – of the Shin Bet.
According to the report, the Shin Bet’s response to this allegation was not that the statistics were untrue, but a broad attack on the complaints as being invalid and motivated by Palestinian detainees’ anxiety that if they do not file such complaints, they will be branded collaborators.
Apparently, neither the Justice Ministry nor the Turkel Commission found this explanation sufficient to explain a 100 percent rejection of the complaints, even if the explanation might apply to some.
In 2007, the Justice Ministry itself investigated the Shin Bet’s self-investigations and found that not only was the head of investigations likely to be biased to “cover-up” for his colleagues, but that he was not even qualified or trained to properly investigate the complaints.
The state’s report found that the top Shin Bet investigator lacked the legal training and comprehensive legal experience needed to be able to catch Shin Bet interrogators in contradictions, especially where the interrogators themselves were seasoned and excellent at covering their tracks.
Furthermore, the report said that the head of investigations was not given and did not demand sufficient documentation from the Shin Bet in order to even make an informed decision on the cases.
All of this not from a left-wing human rights group, but from the state itself.
As early as 2010, the state had recommended moving investigations of the Shin Bet into the Justice Ministry under the authority of the Internal Affairs Division, which investigates the police.
The recommendation was ignored according to the Turkel Commission.
How far the new appointment will go in transforming the functioning of the Shin Bet and in leading to new criminal investigations of agents accused of violating legal restraints on interrogation tactics will likely depend both on why this change has really been made and on Modgavrishvili herself.
Here are two possible narratives as to why this change is occurring.
On one end of the spectrum would be the notion that the state has finally internalized that in an age of battling delegitimization, it must proactively investigate itself, and Modgavrishvili will be filing actual criminal cases against the Shin Bet before we know it.
The argument here would be simply to take the state at face value – in that the change has been intended since 2010, and while it was delayed, this was due to the real complexities of making changes impacting multiple government branches. The delay and complexities were exacerbated, since the changes are inextricably tied to national security and the most classified information in existence.
Another argument for this narrative is that the change itself is so massive that the state would not agree to it in any fashion if it was not wholly committed to it.
On the opposite end of the spectrum would be the argument that it is a forced change to respond to the Turkel Commission, whose independent mandate finally cornered the state into public commitments to change – but that the change is in name only, and not in substance.
This argument could be seen as having a significant basis.
Although a top legal official assured The Jerusalem Post that the process of creating the new department was well underway long before the Turkel Commission issued its report, the commission itself did not seem to think so.
Also, if such a major change was independently underway, why had it taken so long, with no progress since 2010 on a state-run investigation that started in 2007? Wouldn’t the state want to announce such big changes as soon as they were even in process, to deflect already well-publicized criticism of Shin Bet investigations and to avoid any appearance of having its hand forced by an (even quasi) outside actor like the Turkel Commission? Instead, the state significantly downplayed the change – which could signal that it does not take it seriously, or could merely be a standard “saving face response” after making a major change, so as not antagonize the Shin Bet more than necessary.
While the state often says big institutional changes have “unavoidable” delays, where there is a political will, delays can often be overcome, as was the case when the IDF published its investigations of Operation Pillar of Defense substantially faster than it had regarding Operation Cast Lead.
Before the question of who was appointed, and how Modgavrishvili herself may impact the issue, it is important to note who was not appointed.
Almost immediately after the Turkel Commission announced its recommendations, leaks came out that the head of the new, “more independent” Ministry of Justice department would be, essentially, a “transferred” career Shin Bet agent. He would be almost identical to his predecessors, except that his office would physically be in the Justice Ministry.
While the ministry denied the specific rumor, it did not generally oppose career Shin Bet officers filling the new position.
What is more significant in determining the state’s commitment to change, that it may have seriously entertained appointing a career Shin Bet agent to head what is supposed to be a new “non-Shin Bet” division, or that ultimately the state picked an ex-IDF prosecutor and not a career Shin Bet agent? After all of these arguments, according to another former head prosecutor at the IDF’s Military Advocate-General’s Office, Col. (res.) Liron Libman, the choice of Modgavrishvili itself indicates that the state means business.
Libman, who was Modgavrishvili’s boss and predecessor as head IDF prosecutor, knew and worked with Modgavrishvili for years and said she was a “great choice personally, she has experience with security interrogations, the dilemmas and difficulties, and is not coming to this without knowing the issues.”
While very knowledgeable regarding the Shin Bet, he said she is also “not from the Shin Bet, very independent, stands up for her views and cannot be pushed around.”
In terms of choosing a career IDF legal division retiree as opposed to either a career Shin Bet or Justice Ministry candidate, Libman said it was definitely possible that the choice was “a compromise” between the institutions – someone not beholden to either institution, but highly familiar with both.
On the other hand, Libman said that the choice of Modgavrishvili might also just be a reflection of her being a “great candidate” and possibly “the best available at the right time.” While Libman questioned the wisdom of predicting exactly how many indictments she would file in the next six to 12 months, he admitted that for the Shin Bet to have opened zero investigations until now “raised questions,” and said that with Modgavrishvili at the wheel, “if there is a need to file indictments, there will be indictments.”
In the final analysis, the judgment on Modgavrishvili, how large of a revolution has occurred regarding investigating the Shin Bet and how much the Shin Bet’s power has been reduced, is likely to come from exactly that – how many investigations are opened over a particular period of time. If there are none, the reform will not be taken seriously.
If there are some, as one would expect, a new more nuanced debate will probably begin about the particular cases.