Legal expert proposes state-named lawyer review secret evidence in administrative detention cases

Suggestion is a rare compromise idea which could ease official concerns by only letting a government-approved lawyer review all classified information.

October 13, 2015 01:46
2 minute read.


Criminal law expert Mordechai Kremnitzer suggested on Monday appointing a special defense counsel to review secret evidence in administrative detention proceedings, a step that would amount to a revolutionary change in the state’s detention practices.

Kremnitzer, one of Israel’s most respected academics in the field, told the Knesset Law, Constitution and Justice Committee in a hearing about proposed amendments to the Struggle Against Terror Law that the government “must permit a special defense counsel to review the classified evidence.”

In standard trial proceedings, each defendant hires his own defense lawyer who gets to personally review all evidence and cross-examine all witnesses.

However, administrative detention is an extreme and special judicial procedure in which only judges, not defense lawyers, review classified evidence against a detainee who could face years behind bars without a formal charge, if the classified evidence convinces the judge that the detainee poses a real danger to state security.

The government has always claimed it cannot share the secret evidence with defense lawyers because some might share the information and compromise intelligence sources or electronic spying methods.

Critics, both from the Palestinian side and from those supporting three recently detained Jewish settlers, have denounced the proceedings as a sham since the defense lawyer has to argue to the judge for his client’s freedom without knowing the evidence he is addressing.

Kremnitzer’s suggestion is a rare compromise idea which could ease official concerns by only letting a government-approved lawyer review all classified information (not the detainee), while improving defendants’ chances by permitting some review of secret evidence.

A Justice Ministry spokesman said that Kremnitzer is a major and respected figure and his suggestion would be seriously weighed along with other issues that arose at the hearing.

But the spokesman was far from committal regarding actually adopting the suggestion, or providing a timeline for responding to it more specifically.

Association for Civil Rights in Israel lawyer Lila Margalit criticized Kremnitzer’s idea as having the potential to “grant legitimacy to a process which is blemished in its essence.”

Margalit wrote that if the lawyer “cannot meet with the detainee to hear his response to the [classified] evidence, how can he defend him?” She quoted from a 2009 British report attacking a similar procedure in England as inadequate since the lawyer still could not cross-examine witnesses who appear in the report or view primary source intelligence documents mentioned in the report, so as to attack the allegations’ credibility.

A human rights expert said any lawyer given such a task might become too close to the government and too detached from individual clients, since he would not be hired by them as their advocate as is standard in the adversarial trial process.

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