'Federman can return to family home'

Barak to appeal ruling to the Supreme Court; presiding judge: Evacuation wasn't constitutional.

By DAN IZENBERG
A Jerusalem District Court judge on Wednesday said the army's order declaring the land on which right-wing activist Noam Federman's house is located near Kiryat Arba a closed military zone was illegal and should have not been issued. Judge Moshe Drori's criticism of the conduct of the police and the army on the night Federman's house was demolished and his questioning of the legality of the entire procedure has no practical significance. His comments were only indirectly related to the issue confronting him, which was whether to grant the state's request to immediately bar Federman from entering the West Bank. He was not asked to rule, nor did he have the authority to rule, on the closure order or the demolition of Federman's house. If Federman wanted to challenge the government's action on the night of October 26, he would have to petition the High Court of Justice. On the basis of the military order, which was delivered to Federman at 1:30 a.m., the army and police demolished the home where he, his wife and their nine children lived. Drori referred to the military order and the demolition of Federman's home in the context of an appeal by the state against the refusal of the Jerusalem Magistrate's Court to immediately bar Federman from entering the West Bank while his trial was under way. Federman faces charges in Jerusalem Magistrate's Court of assaulting a policeman in aggravated circumstances on the night his house was demolished. The state based its request on the allegation that Federman was violent and posed a threat to public order. Federman claims he was the one who was attacked by the police that night. Drori rejected the state's request and called it disproportionate and a violation of Federman's constitutional rights. At the same time, he blasted police conduct on the night of the demolition and expressed doubt about the legality of the military order itself. "Even if there were some basis to the allegation that Federman was violent toward the police, we must first examine the constitutionality and legality of the closure order and the degree to which the order and the declaration that the area was closed was in keeping with the preface to the [closure] order" issued by OC Central Command Maj.-Gen. Gad Shamni. According to the preface of the order, which is the standard wording, "By virtue of my authority as military commander and since I believe that it is necessary for military needs, in view of the special security conditions prevailing today in Judea and Samaria, and the urgent and decisive need to protect the Israeli settlements from terrorist attack including terrorist incursions, I hereby declare... " Drori wrote that Federman was not suspected of trying to commit terrorist attacks against Jewish settlements and therefore the order could not be issued against him. In the meantime, Defense Minister Ehud Barak intends to ask the Supreme Court for permission to appeal Drori's decision to prevent the state from barring Federman from entering the West Bank immediately.