Fundamentally Freund: Israel needs a ‘Posse Comitatus Act’

In a country that cherishes freedom, a way can and must be found to keep the military from being used for law enforcement purposes.

April 21, 2014 22:19
3 minute read.
Border Police in Yitzhar [file]

Border Police in Yitzhar 370. (photo credit: REUTERS)


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Earlier this month, IDF soldiers carried out a furtive and well-planned operation that should raise the ire of every Israeli citizen who values individual rights and personal liberty.

After a spate of incidents involving some of the residents of the Jewish community of Yitzhar, near Shechem (Nablus), which included slashing the tires of army vehicles and the destruction of a military outpost, security forces raided the Od Yosef Chai yeshiva on April 11.

A battalion of Border Police commandeered the structure, erected barbed wire around the perimeter, and transformed it into a makeshift base.

According to the IDF spokesman, the building was seized “in light of the violent actions against security forces in recent days and to meet security needs.”

“The yeshiva building,” the spokesman laconically insisted, “was chosen out of operational considerations and will serve as a frontal base from which to combat violent attacks against Palestinian villages in the area and against security forces.”

This is absolute hogwash. There is no moral or principled justification for the military to take over a privately- run yeshiva and treat its faculty and students like medieval serfs who belong to the lord of the manor. It is an unprecedented assault on civil liberties, and a frightening display of contempt for the rule of law and human dignity.

To be sure, the recent attacks carried out by some of Yitzhar’s residents against IDF soldiers and state property are absolutely despicable. The perpetrators of these acts of hooliganism should be brought to justice and punished to the full extent of the law. There is no excuse whatsoever for their behavior, which is illegal, senseless and sinful.

But is it fair to penalize the entire yeshiva because of the actions of a few? Since when do the authorities have the right to impose collective punishment on an entire subset of Israeli citizens? In the unlikely event that every single administrator, teacher and student at the yeshiva proves to have been involved in the anti-IDF assaults, that still does not warrant a military operation in response. After all, that is the job of the police and the legal system.

The Israel Defense Forces, as its name implies, is supposed to defend Israel from its enemies, not be unleashed against its citizens.

Let the police haul in suspects, interrogate them, follow leads, seek out witnesses, and build cases against the perpetrators. Let the state prosecutor file charges and prosecute the defendants in open court.

That is how a democracy is supposed to function.

But sending in the army? Leave law enforcement duties to the police, where they belong.

IT IS precisely for this reason that way back in 1878, the US Congress passed the Posse Comitatus Act with the aim of restricting the military from engaging in conventional law enforcement duties.

After the American Civil War, during the decade-long period known as Reconstruction, the federal army occupied the formerly rebellious southern states, generating a great deal of tension and resentment.

After all, soldiers are trained to be combatants, not constables. Utilizing them in domestic police situations can degrade their military readiness as well as harm the army’s reputation among the civilian population.

Recognizing the deleterious effects of deploying the army domestically, Congress passed the law, which remains in effect today.

The time has come for Israel to do the same. The Jewish state needs its own Posse Comitatus Act to get the military out of the business of law enforcement so it can focus exclusively on its primary mission: defending the country from hostile foes.

The use of the IDF in situations such as the expulsion of the Jews from Gush Katif, or the demolition of Jewish outposts in Judea and Samaria, only serves to rupture the consensus that exists in Israeli society regarding the military.

This is an unhealthy situation and it needs to be addressed. To be sure, doing so will involve a lot of legal and political gymnastics, particularly since, by law, the IDF is the sovereign in Judea and Samaria.

But in a country that cherishes freedom, a way can and must be found to keep the military from being used for law enforcement purposes.

Let soldiers stick to soldiering, and leave it to the police to take care of the rest.

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