Wednesday, March 28, 2012
The Shin Bet Law - 10 Years On
The Unseen Shield
The news report hardly makes much of an impression on most Israelis: a checkpoint search in the West Bank, this one in the Jenin area, another discovery of explosives and weapons and the familiar finale "the suspect was taken in for questioning by the Shin Bet."
The Shin Bet (also known as the Israel Security Agency, the General Security Service and "Shabak") is tasked with protecting Israeli officials and containing Jewish extremists. Its main responsibility, however, is defending Israel in the Arabs' long war against the Zionist enterprise. As "moderate" Palestinian leaders urge their followers to deny the Jewish people their right to sovereignty anywhere in the Middle East and "militant" leaders preach "resistance" and "armed struggle," Shin Bet commanders need to constantly calibrate strategies and perfect operational tactics. No less taxing, they must operate within the rule of law and cognizant of the moral imperatives embodied in Jewish tradition and Western civilization.
One might expect an agency charged with staving off murderous fanatics to bristle under such constraints. Not so. The Shin Bet's institutional commitment to law and morality was on display earlier in the month when members of the Israeli intelligence community, academics and students gathered at the law school of the College of Management in Rishon Lezion to mark the tenth anniversary of the Knesset's passage of the "Shin Bet Law."
With this legislation that clarified its function and jurisdiction, Israel's domestic security agency came in from the cold. The prime minister was confirmed as its ultimate authority, the tenure of its chief (whose name is no longer a state secret) was set at five years, and procedures were put in place for intra-agency, governmental, and ministerial oversight. The law further required the agency's internal auditor to submit an annual report to officials charged with monitoring its classified work. The law codified the Shin Bet's authority to routinely collect information and question suspects. No longer did the Shin Bet need to operate in a legal twilight zone with the scope of its work was left vague.
Even today no one would claim that the Shabak offers tea and biscuits to those it suspects of enabling the murder of Israelis. The Shin Bet Law has emphatically not addressed every legal and ethical question; and as Yoram Rabin, the College of Management's law dean acknowledged, it has not erased the inherent tensions between the need to gather domestic intelligence and the protection of civil liberties. In parts, the legislation is purposely vague. It mandates that the Shin Bet preserve national security though it fails to define what constitutes "essential state interests," Prof. Suzie Navot noted.
Its deficiencies notwithstanding, former Shin Bet chief Avi Dichter (2000–2005) believes the legislation advances both security and the rule of law. He traced the law's impetus to questionable conduct by some Shin Bet agents during the 1980s. In 1984 for example, agents summarily executed two terrorists from the Popular Front for the Liberation of Palestine who had hijacked passengers on route from Tel Aviv to Ashkelon in what came to be known as the Bus Number 300 Affair. Most egregiously, the Shin Bet sought to cover-up its actions. In 1987, the Supreme Court ordered the release – after seven years of wrongful imprisonment – of IDF Lt. Izzat Nafsu, a member of the Circassian minority, who had been tortured into confessing to espionage he did not commit. Israel's president at the time, Chaim Herzog, declared that he was "ashamed" that such a thing could happen. In November 1987, a commission headed by former Supreme Court justice Moshe Landau offered classified guidelines, adopted by the Cabinet, for the use of a "moderate measure of physical pressure" during interrogations.
During the first intifada, after Islamic Jihad had carried out its first suicide bombing, exploding the Number 405 bus from Tel Aviv-Jerusalem and murdering 16 passengers, the Shin Bet came under ever increasing pressure to keep Israelis safe. Dichter recalled a December 1989 incident in which Palestinian gunmen had ambushed and killed two IDF reservists in the Gaza Strip. A number of suspects were arrested including Khalid Sheikh Ali in whose home investigators found axes and masks. In a failed effort to discover the whereabouts of the cell's arsenal and its plans for further attacks, interrogators reportedly tortured him to death. It was hardly the only instance of its kind, but it left the institution traumatized and its leader's soul-searching.
In 1999, Landau's guidelines were muddled by Israel's Supreme Court under Aharon Barak which basically ruled that force could not be used during interrogations though agents dealing with a "ticking bomb" situation could use a "necessary defense" argument if criminally charged.
By the time Shin Bet chief Ami Ayalon (1996–2000) stepped down and Dichter took over the political climate was right to press for a law that would, in effect, inoculate agency operatives against charges of working "in the service of the state while operating outside its laws." If the price for a shield of legitimacy was oversight, the Shin Bet was ready to pay it. The agency's former general counsel, Aryeh Roter, who drafted the bill ultimately passed by the Knesset, told the College of Management audience that the 2002 law successfully demonstrated that terror could be combated within a legal and comparatively transparent framework.
As Barak recognized, the most difficult cases involve "ticking bombs" where investigators have little time to elicit from suspects details of an impending attack. During the deliberations over the Shin Bet Law, then Justice Minister Meir Sheetrit said he would not allow torture to be enshrined in legislation. The best that can be done, said Dichter is to rationalize the process of obtaining internal approvals so that agents can operate legally in real-world situations. Current procedures requiring multiple authorizations "at three o'clock in the morning" from a long checklist of officials, up and down the political and legal chain of command, are unworkable when confronted with a suspect "who refuses to reveal at which bus depot in the country a bomb has been set to explode later that morning during rush hour," said Dichter.
Ten years after the law's passage, the Shin Bet, whose motto is "the unseen shield" nowadays operates with comparative transparency providing its personnel with a deserved sense of legal propriety as they fulfill their grave 24/7 responsibilities of keeping Israelis out of harm's way. Israelis do not expect the Shabak to play by Marquis de Sade's rules, but many do take comfort that those at the frontlines of Israel's struggle for survival do not capriciously breach the very values that distinguish Jewish and Western civilizations from the darkness the Islamists would impose on us all.
Politico-Strategic Briefing... Enhance and deepen your understanding of Israel...Go beyond the 24/7 news cycle... Elliot Jager is a Jerusalem-based journalist, former NYU political science lecturer and a senior editor at The Jerusalem Report. He is a former editorial page editor at The Jerusalem Post and was founding managing editor of Jewish Ideas Daily (Mosaic). His 2017 book, The Balfour Declaration Sixty-Seven Words – 100 Years of Conflict told the story of what is, arguably, the most important political letter of the 20th century and why it still matters. Elliot will customize his briefings to suit your interests and schedule. He can meet you over breakfast before you start your day of touring or when you are back at your hotel.
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