Fundamentally Freund: Administrative detention and the assault on civil liberties

"With the stroke of the defense minister’s pen, three young Israelis were hauled away by police, denied due process and the right to a fair trial, and tossed into prison."

Police arrest Meir Ettinger (photo credit: TAZPIT)
Police arrest Meir Ettinger
(photo credit: TAZPIT)
Something alarming happened in Israel this past week, a development so disturbing that it should arouse indignation among all who cherish democracy in the Jewish state.
With the stroke of the defense minister’s pen, three young Israelis were hauled away by police, denied due process and the right to a fair trial, and tossed into prison for at least the next six months. No charges were filed against them, no evidence or witnesses were brought, and whatever fundamental freedoms they had were duly trampled upon and dispensed with.
The government’s decision to utilize what it innocuously refers to as “administrative detention” against suspected Jewish extremists constitutes an appalling assault on civil liberties that only serves to weaken our democratic institutions rather than protect them. Simply put, the need to combat extremism and terrorism does not justify wantonly disregarding the basic rights of Israeli citizens.
The move came in the wake of the horrific firebombing in Duma, which resulted in the deaths of an innocent Palestinian infant and his father. After a public outcry, the authorities decided to crack down, and issued detention orders against Meir Ettinger, Evyatar Slonim and Mordechai Mayer, although none of them are reportedly connected with the Duma attack.
In announcing the incarceration of Ettinger and Slonim, the defense minister cited “involvement in a Jewish extremist organization” as the ostensible reason for their imprisonment, while Meyer was accused of being connected with “recent terror attacks as part of a Jewish terror group.”
Sorry, but that’s not how democracy works. If there is evidence against these men, then they should be put on trial, convicted and sent to prison. Suspicion alone, or insufficient evidence, do not give the state the right to deny a citizen his basic, fundamental freedoms. Moreover, the government can renew the detention orders ad infinitum, without having to meet the burden of proving guilt at a trial. In other words, the detainees can theoretically be facing years in prison even though they have not been convicted of an offense.
This is simply scandalous and must not be allowed to stand.
By what right does the state imprison citizens without so much as a trial? How about the right to confront one’s accusers, or to counter the evidence presented by the prosecution? Is a person no longer presumed innocent until proven guilty? This is Civics 101: it is the job of the judiciary, and not the defense minister or anyone else in the executive branch, to deny a citizen his liberty and incarcerate him after he has been convicted in a court of law.
After all, a fundamental premise of democracy is that the government is under the law, not above it. As John Adams, one of America’s founding fathers once put it, democracy is, “a government of laws, not of men.”
Indeed, legal constraints are a safety mechanism, a check on the unbridled use or abuse of power. If the defense minister can wake up one morning and simply decide to toss a citizen into prison, then it puts us all at risk.
Don’t get me wrong: Ettinger, Slonim and Mayer may in fact be violent extremists who pose a threat to others and belong behind bars. If they have been involved in any type of violence or terror, then they need to pay a heavy price for their actions and for the damage caused to others and to society as a whole.
But the way to punish them is not to undermine the very same democratic system they are accused of subverting by denying them the rights to which every citizen is entitled.
It is one thing to selectively apply administrative orders against terrorists, but quite another to do so against citizens of the state.
Allowing the use of such measures runs the risk of opening a dangerous Pandora’s box that could easily descend into rampant injustice and inequity.
It is therefore time for the government to do away with the use of administrative orders against Israeli citizens. The right to sleep comfortably at night in the knowledge that one’s home is a haven is as basic as it is fundamental.
The very fact that the evidence against Ettinger, Slonim and Mayer has not been released and that the procedures invoked against them have been shrouded in secrecy should be enough to set off alarm bells.
Secrecy is the primary adversary of accountability and it is simply unconscionable that our legal system would tolerate such covert caprice.
As Winston Churchill once noted, “the power of the executive to cast a man into prison without formulating any charge known to the law, and particularly to deny him the judgment of his peers, is in the highest degree odious and is the foundation of all totalitarian government.”
In other words, it smacks of tyranny, of the unchecked use of power in contravention of what our democracy represents.
To be sure, we need to tackle the problem of extremism in Israeli society, be it on the Right or Left.
But if in the process we sabotage the very same values of freedom and democracy that we aim to uphold, that too is no less extreme.