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.

Martyr in Waiting







The Palestinian Islamic Jihad operative Khader Adnan, currently under administrative detention in Israel, has announced the end of his 66-day hunger strike in exchange for a commitment by Israeli authorities to set him free on April 17. His pending release raises this moral dilemma: If Adnan is a significant figure in PIJ's West Bank infrastructure and was detained because he posed an imminent danger to Israeli citizens, was it ethical for Israeli authorities to capitulate to his demands?

Roughly 300 Palestinian Arab security prisoners are currently held in Israel without trial. Other democracies, the United States and the United Kingdom among them, also employ this stopgap measure. Apparently no democracy has been able to combat terrorism without such an expedient.

Unless one is privy to the intelligence reports, one cannot know whether Adnan is, as his defenders claim, merely a PIJ spokesman or, as the authorities believe, far more lethal. Even if he is not one of PIJ's ticking bombs, Adnan certainly runs with those who are. Yet he will go free because authorities feared that his self-inflicted martyrdom would trigger paroxysms of rioting and bring international opprobrium from the Palestinian amen corner and others insulated from, or indifferent to, the potentially fatal consequences of his release.

Perhaps living in a Palestinian polity that incubates fanaticism stokes a propensity toward self-punishment. In January, Palestinian Women's Affairs Ministry staffers undertook a hunger strike to protest corruption within the Palestinian Authority. Political prisoners in Mahmoud Abbas's West Bank statelet have also waged hunger strikes. Or perhaps the phenomenon is more universal: Those who equate compromise with betrayal and see only their own Truth may lean to self-destruction. Think of the deadly hunger strike undertaken in the late 1970s by fanatics in the Baader-Meinhof Gang or the ten IRA militants, led by Bobby Sands, who starved themselves to death in 1981.

Whatever the cause, other jihadist prisoners have used Adnan's tactic. The most recent was Hana Shalabi, who was released in the Gilad Shalit exchange after an earlier stint in administrative detention but—like the Palestinian who stabbed a soldier in Hebron on Purim—returned to terrorism. Because Adnan's hunger strike was not unique, the ethical dilemma it poses is especially pressing.


Administrative detention leaves civil libertarians, liberal and conservative, deeply uneasy. I posed the following hypothetical to Tel Aviv University philosophy professor Joseph Agassi, who describes himself as a liberal nationalist: Imagine that during the Weimar period a young monster was arrested and sentenced to five years in Landsberg Prison. The historical fact is that he received friendly treatment there and spent his time co-authoring a screed that outlined his nefarious worldview. But what if the inmate had been treated harshly, become depressed, and commenced a hunger strike? Would it have been immoral to let him die?

Agassi rejected my scenario. "Wouldn't it be better," he asked, if Israelis considered "whether it is not easier and wiser to change the situation rather than torment ourselves with the impossibility it imposes on us?" Of course, it was wrong to let Germany slide into the hands of a criminal sadist (though another misfit might "quite possibly" have taken his place). But the "real question," said Agassi, "is, how come a civilized country like Israel has overflowing jails?"

A leftist Israeli academic went farther, saying my pre-World War II analogy was flawed because Adnan, compared with Europe's Jews, "is also a victim, as a Palestinian, of morally dubious policies, and of a violent occupation and dispossession."

In other words, there are those on Israel's ideological left who oppose Adnan's incarceration altogether. Convinced that Israel has "lost its soul" (or never had one), loathing the "occupation," and holding Benjamin Netanyahu wholly culpable for the deadlock in the "peace process," some post-Zionists would release all Palestinian "political" prisoners. And, indeed, if you maintain that Israel has no right to any presence beyond the 1949 armistice lines, disregard the refusal of Palestinian "moderates" to negotiate with Netanyahu unless he accepts those indefensible boundaries, and ignore what Hamas and the PIJ intend for Israelis, it follows that you would want prisoners like Adnan lionized, not caged.

But what if you believe that imperfect Israel remains a moral enterprise? What if you shy away from promiscuous moral relativism and hold that PIJ's goals are downright evil? Then, like Abraham Feder, a Conservative rabbi and theologian in Jerusalem, you come to a different conclusion.

Feder believes Israeli society is under no moral obligation to save Adnan if he chooses to "martyr himself for his announced cause of destroying Israeli society." Nor would Feder compel Israeli doctors to save him. Feder explains his opponents' case this way:

In Genesis 21:17, Hagar and Ishmael are in the wilderness on the brink of death. An angel shows Hagar water. She and the boy are saved. The Midrash presents a dialogue in which the angels in heaven plead with God to let Ishmael die, since in the future he will cause the children of Israel suffering and death. God sees this future but refuses to let the boy die. The biblical phrase underlying God's judgment is "ba'asher hu sham." This means, the Midrash says, that the boy must be judged as he is now—and now he is innocent.

This is interesting, says Feder, but it does not apply to Khader Adnan. First, Adnan is not an innocent boy but a member of a murderous organization. Second, it is not Israeli authorities who are killing him.

There is no way to know whether Israel's capitulation to Adnan will save more lives than letting him die. If he had died, perhaps Palestinians would have gone on a binge of rioting. When he is set free, he will kill or enable those who do. Only this is certain: The cause for which Adnan was prepared to die is Israel's destruction. In this circumstance, perhaps one way to judge a person's moral compass is to ask whether he or she is gratified by the prospect of Adnan's release or, at the very least, anguished.

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