Administrative detention: For the good of many?

A focal point in the tenuous balance between human rights and protecting national security.

CIA prison 88 (photo credit: )
CIA prison 88
(photo credit: )
Mahmoud Masalmeh was arrested on February 5, 2004. His detention has been renewed 22 times as he is still deemed too dangerous to release. All he and his lawyer know is that he is an alleged member of Hamas. The rest is classified. Still, Masalmeh, unlike detainees in Guantanamo Bay, does not exist in a legal black hole. While his ability to properly defend himself is severely limited, administrative detention is overseen by a built-in judicial review mechanism that, defenders of the system claim, guards against abuse and its improper application. Today, there are 748 other detainees like Masalmeh, including 13 minors, arrested for preventive reasons and held without charge. During times of violent conflict, the number of detainees can reach into the thousands. Today's 649 is considered relatively low. Still, the practice is very controversial as it negates a fundamental judicial principle - the right of an accused to know and meet the case against him or her. For a democracy like Israel, administrative detention is a type of last resort in the fight against terror, necessary but problematic. It sparks a conversation emblematic of the overall debate on the interplay between human rights and protecting national security. On the one hand lies the state's duty to take measures to protect itself. On the other, is the recognition that free, democratic societies value and safeguard the rights of individual liberty and cannot disregard them. Both claims are valid. Administrative detention is the compromise. In the territories, where Israel most frequently employs administrative detention, Military Order 1229 of 1988 permits individuals to be detained for renewable six-month periods, if a military commander finds "reasonable grounds to presume that the security of the area or public security require the detention." The intelligence that leads to detention comes from the Shin Bet. By its very nature administrative detention is a preventive tool. The state asserts that it is not a means by which to change people's views or to turn a terrorist into a non-violent activist. Instead, it is used to detain someone only as long as deemed necessary to prevent him from carrying out dangerous acts for which concrete intelligence is available. In a conference call, attorneys from the State Attorney's Office emphasized that there is a constant attempt to revisit intelligence to ensure detention is for as short a period as possible. "The basic assumption is that you detain someone only for as long as you absolutely have to, and you're checking your information all this time. As soon as the balance tips in favor of releasing him, he's released, but the army is still taking a risk by allowing him to be free," one of the attorneys said. "YOU CAN'T say the detainee doesn't have his day in court," notes Daniel Reisner, formerly head of the International Law Department of the IDF and currently a partner at Herzog, Fox and Neeman. He is referring to the fact that after the detention order is issued in consultation with a military legal adviser, military judges examine the file within eight days and have the ability to question the Shin Bet over the allegations. Also, detainees may appeal their detentions all the way to the Supreme Court. Furthermore, at the conclusion of each detention period, the state once again must make its case to the military judge as to why the individual in question should still be detained. Again, the judge freely examines the evidence and makes his decision. But Sahar Frances, a human-rights attorney and director of Addameer, a Ramallah-based prisoner-rights group, who has represented numerous Palestinian administrative detainees, says the process is an affront to fundamental legal principles. "It's so depressing from a legal point of view. Sometimes you don't have any evidence to lead you in what you're supposed to do to defend the client." The feeling crosses political lines. Naftali Wertzberger, who has represented right-wing settlers detained under the law, notes the futility of being able to contest the allegations when you cannot see any of the material. "You have no tools to fight against it." They argue, therefore, that given the one-sided nature of the proceedings, not only is the right of the client to make a full defense completely impaired, but the quality of judicial review is also compromised to an unacceptable degree. Frances points out one recent shift that has served to undermine the state's assertion that the judicial review is as fair as possible. She says that after the second intifada, Shin Bet representatives, whose intelligence is the cause for detention, no longer attend the initial review. She notes that before the second intifada the officers would come to the hearings and could be questioned by the judges and attorneys. Instead the Shin Bet now sends summaries of the file to a military prosecutor who shows this to the judge. Depending on what is in the summary, the judge decides if he needs to see more or summon a Shin Bet officer. Lila Margalit, an attorney with the Association for Civil Rights in Israel who specializes in administrative detention, calls the new process "hearsay based on hearsay." She argues given the nature of the system, even the best judges cannot come to a truly fair decision. "It's based on secret evidence, no witnesses, no questioning of witnesses or the detainee on the allegations or challenges from the detainee to the state. In such circumstances even judges with the best abilities can't function as an effective check on the system." HOWEVER, THE judges disagree. In his 2002 judgment, Marab vs IDF Commander in Judea and Samaria, regarding the detention of detainees from Operation Defensive Shield, then Supreme Court president Aharon Barak wrote, "Judicial involvement is a safeguard against arbitrariness... It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be upheld." And therein lies the divide - those who believe in the ability of judicial review to function effectively, and those who do not. Without a modicum of transparency, the process becomes a matter of trust. Reisner believes this trust is crucial. Making the process more transparent, by revealing information and intelligence sources, is too great a risk. "What's your alternative? You can have intelligence agents killed, the sources of information could run dry and you would keep yourself open to terror attacks." The alternative, argue rights defenders, is to charge these individuals and try them within the criminal process - making the charges against them public. Donatella Rovera, who works on Israel and the Palestinian territories with Amnesty International in London, argues, "Ultimately if people have done something, they should be charged, tried and given a chance to defend themselves." Asked about the risks involved with publicizing evidence, she points out that the criminal process has mechanisms in place to protect sensitive material such as in-camera hearings and keeping the identities of witnesses secret. Brig.-Gen. (res.) and former judge advocate-general Amnon Straschnov says unfortunately this is not always possible. He believes rights advocates need to be more sympathetic to the fact that there is a concerted effort to be as transparent as possible with evidence, but the nature of the intelligence does not always permit. "Basically, if we have admissible evidence, the authorities will bring the individual before a court of law." ON MAY 23, 2005, Ziyad Hmeidan, a field worker with the Palestinian human rights group Al Haq, was arrested with five others. Neither he nor Frances, his attorney, was told why or shown any evidence. But from discussions with another lawyer and looking at files of testimony from other detainees, Frances discovered that during a Shin Bet interrogation another detainee had named Hmeidan and the five others as people related to the Popular Front for the Liberation of Palestine and said they were planning military activities. Frances believes the fact that this evidence was able to be labeled secret and not have it scrutinized in a court of law is what allowed Hmeidan to stay in detention for so long before being released. "They never gave me a chance to bring this man who talked about Ziyad and question him in the court. The judge never asked to cross-examine this man. And we're not talking about protecting a collaborator; we're talking about a detainee." In the end, the Supreme Court upheld the detention order, citing the powerful nature of the secret evidence. Then, on March 17, 2007, Hmeidan was dropped off at the Meitar checkpoint south of Hebron. After nearly two years in detention, upheld by the Supreme Court, without being told why, he was informed he was free. He has since returned to Al Haq. Instances like Hmeidan's, which on the surface might not present clear justifications for detention, reinforce the state's contention that administrative detention requires trust from the public. Those privy to the information contend detention is always and only for valid reasons. "I've never seen a case where I have not understood the justifications for the detention," remarked an attorney in the State Attorney's Office. "It's a matter of your belief in the system." But lawyer Wertzberger does not buy it. He insists that in the few instances he has managed to see the files on his clients, always a number of years after they have been released, it becomes evident that they were detained based on erroneous information that once properly verified prompted their release. He believes that administrative detention, against the Israeli Right and Palestinians, is used for political, not preventive, purposes. "The authorities want to show to the public that they take steps against Israelis in the right-wing movements. Even against Palestinians, many times it's not justified." Former IDF lawyer Reisner dismisses that accusation. "The political purposes charge is one of those sound bites people throw out there." THE PROBLEM is that rights advocates are reluctant to trust an opaque process when a fundamental safeguard of judicial systems is supposed to be their transparency. To them, the state has yet to give any reason that it is acting out of necessity except for its assertion that it is. Yet, it appears this will continue to be the norm. On June 11, the Supreme Court handed down its decision in the case A and B vs The State of Israel. President Dorit Beinisch acknowledged that withholding evidence from parties "has many deficiencies." But she went on to add, "The security position in which we find ourselves, in view of the persistent hostilities against the security of the State of Israel, requires the use of tools of this kind." Thus, the IDF - which declined requests to be interviewed - is unlikely to change its practice any time soon. That leaves Israel with one option, according to Reisner. "[Administrative detention] has to be used with caution and clarity." Yet, rights advocates say they are still waiting to see proof of caution or clarity. While approximately half of the 3,059 detention orders given in 2007, which includes extensions of existing orders, were shortened by military judges, only 137 were canceled by judges, with 28 more either canceled or shortened by military commanders. This extremely high rate of confirming detention orders, they say, indicates that there is reluctance on the part of the military judges to challenge the evidence presented to them to the full extent that would be possible in a court of law. However, while that may or may not be so, the figures also reveal that Israel is not enacting a rubber-stamp process that takes Shin Bet assertions at face value.