Court leans toward permitting Shin Bet surveillance if Knesset endorses

Justices seen in corona masks in first live aired hearing

A screen capture of the live stream feed from a hearing at the High Court of Justice (photo credit: screenshot)
A screen capture of the live stream feed from a hearing at the High Court of Justice
(photo credit: screenshot)
The High Court of Justice on Thursday appeared to lean toward permitting the Shin Bet surveillance program of coronavirus infected citizens to continue presuming the full Knesset passes a new law on the issue in the near future.
High Court President Esther Hayut, Vice President Hanan Melcer and Justice Noam Sohlberg, all of who donned corona masks for portion of the hearing, hinted this was their leaning in a number of ways over the course of the first live-aired hearing in a new transparency project.
Some years ago, the High Court aired a few hearings in a pilot program, but for reasons which were not clarified, did not follow through with a longer-term version of the program.
However, a new push by The Jerusalem Post, Globes and other media outlets on March 18, in light of coronavirus restrictions, appeared to help expedite the process.
At the hearing, all three justices seemed anxious about intervening, while also noting that there were heavy citizens’ privacy and other constitutional rights at issue.
On one hand, the justices did not want to block the state from using a tool which could save lives from corona and reduce the lethal viruses’ spread.
On the other hand, they recognized that the Shin Bet has never been used before to track regular citizens’ movements and communications, usually being held in reserve to deal with foreign Hamas, Hezbollah or ISIS terrorists.
Repeatedly, the High Court focused the petitioners – the Association for Civil Rights in Israel, Adalah, the Joint List and activists’ lawyer Shahar Meir – on the fact that the Knesset was due to hold a first vote later Thursday on passing a new law to regulate the spy agency’s surveillance.
Responding, the petitioners highlighted that the government moved forward with the surveillance program in mid-May with zero Knesset oversight and then moved at a snail’s pace regarding oversight.
Originally, the Knesset Intelligence Subcommittee was not given enough time to hold hearings, which meant that it did not get to approve the surveillance program until March 31.
ACRI lawyer Dan Yakir said that Attorney-General Avichai Mandelblit himself had notified the state that the Knesset as a whole should pass a new law to manage such an important issue and could not suffice long-term with a mere subcommittee approval.
In addition, they said that Mandelblit’s proposed law has sat for three weeks and was only being brought to a first vote today because of the High Court hearing, and that a final vote could still be dragged out for an extended period.
Finally, Joint List lawyer Hassan Jabareen said that he did not think the Shin bet surveillance of sick citizens could be made constitutional even by a Knesset law since it infringed on Basic Law freedoms and rights.
He said that at most the Knesset could pass a special emergency law which explicitly limited the Shin Bet authority to this pandemic and which would still need to further restrict what information the Shin bet can collect about sick citizens.
Further, the petitioners said that a pandemic is not necessarily within the definition of a national security crisis which the Shin Bet should be restricted to.
The High Court responded that arguing over how the past few weeks had gone was not productive and that all that mattered was that the subcommittee had already approved the surveillance program and the full Knesset was on track to do so.
Moreover, the justices over and over again asked the petitioners if they knew of any other public or private entity that could track and protect the state against the corona spread as well as the Shin bet.
The petitioners responded that no other democracy in the world was using an intelligence agency to battle corona, and that most were just asking cellphone companies for specific records.
Responding, the justices said this was not an answer and that the state had checked other options and found that the Shin Bet’s abilities would save lives.
If the Shin Bet could save lives, the justices implied that it did not matter if other democracies were tracking their citizens in some other way.
Also, the justices said that it was a slight of the hand to pretend that the coronavirus crisis, which is killing large numbers of people, “disrupting national economies and changing our way of life,” was not a national security issue simply because there was no hostile actor who had started it.
It was unclear how soon the High Court would rule, with one possibility that they would wait for the Knesset to pass the new law and then declare the issue closed.