Why did the High Court do a 180° turn on the Shin Bet in only 10 days?

What on earth changed the High Court justices’ view so radically in less than two weeks?

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)
Rarely has the High Court of Justice done such a complete about face in only 10 days.
On April 16, the High Court held a hearing in which the justices made it clear that they supported surveillance of coronavirus infected citizens by the Shin Bet (Israel Security Agency).
Yes, it’s true that the justices also seemed to want the Knesset to pass a law to regulate the issue.
But typically when the court supports a program as vital – or even if it is against a program – it gives the Knesset three months or sometimes up to a year to fix its objections so that there is sufficient time to give the issue careful attention.
Three months to a year, however, also avoids leaving the government with no program to address the issue.
The High Court prefers to say fix this soonish, but not to risk the program being scrapped and the court being blamed.
This was the clear tone on April 16.
Suddenly, only 10 days later, the High Court was up in arms about democracy and privacy rights, and gave the government an unprecedented deadline of a mere few weeks to pass legislation to maintain the Shin Bet surveillance.
What on earth changed the High Court justices’ view so radically in less than two weeks?
First, we need to return to the feel and context of the April 16 hearing.
When the petitioners accused the executive branch of dragging its feet on allowing oversight or getting Knesset approval, the High Court responded that arguing over how the past few weeks had gone was not productive.
The justices said all that mattered was that the subcommittee had already approved the surveillance program, and the full Knesset was on track to do so – though there was no sense of an impending deadline and no one promised one.
“On track” in the Knesset can easily mean three months or more.
The justices also repeatedly asked the petitioners if they knew of any other public or private entity that could track and protect the state against the coronavirus as well as the Shin Bet.
The petitioners responded that no other democracy in the world was using an intelligence agency to battle coronavirus.
Strikingly, this did not bother the justice, who said that the state had checked other options and found that the Shin Bet’s abilities would save lives.
They added that if the agency could save lives, it did not matter if other democracies were tracking their citizens in some other less invasive way.
At this point the justices had already lost Adalah, who did not merely want the Knesset to authorize the Shin Bet’s surveillance program to provide proper oversight, but they wanted it nixed altogether.
The High Court never took this position seriously without really explaining why Israel is more threatened than other countries or why its citizens privacy rights are less important.
Instead, the justices almost accused the petitioners of pretending that the coronavirus crisis, which is killing large numbers of people – and “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.
SO WHAT changed to have the High Court light a fire under the government with a deadline which very well might be too short and lead to ending Shin Bet surveillance?
The applicable laws and legal principles did not change, but the state of the country did.
April 16 was the day after the Passover holiday ended, a time period in which it seemed normal to be under complete national lockdown because otherwise thousands or even tens of thousand might die and hundreds of thousands might be infected.
But then something unexpected and shocking happened – very little.
10 days later, “only” 200 people have died (while every life is a universe, compared to what was expected the numbers are shockingly low) and only 15,000 have been infected with the number of infected persons dropping daily.
In the days before Sunday’s decision, between a third to half of the economy was on the way to opening up, dates were being set to reopen schools up until third grade, prayer services were allowed again in small groups and a long list of sports teams were on deck to be reactivated.
In short, the country decided that it had dodged the main bullet, it is on the way to recovery and people are craving normalcy.
It is one thing to let the Shin Bet invade citizens’ cell phones with limited oversight when looking into the black abyss of national chaos.
It is another thing for the branch of government most invested with defending human rights to look the other way and show unlimited patience on Shin Bet surveillance when the whole country is dashing to return to its routine.
It is true that the High Court is sometime sociologically or intellectually distinct from the average citizen.
But anyone who thinks social trends and public opinion do not impact the High Court need only look at this radical shift of 10 days to see how attuned the court is when it believes there is a massive shift in consensus.
In this case, the face of the country changed – and the court simply followed.