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.

Phyllis Goldstein's A Convenient Hatred: A Short History of Antisemitism Reviewed

Impervious to Truth

With some one-thousand books currently in print on the subject, does the world desperately need another tome on anti-Semitism? Who will read it and what difference will it make? After all, in Europe prejudice against Jews persists in its historic ebb and flow with anti-Israelism joining the roster of "reasons" why Jews are held in contempt. Across the Atlantic, 35 million Americans reportedly hold deeply anti-Semitic views. And worldwide 90 percent of Muslims surveyed by the Pew Research Center hold negative attitudes toward Jews.

What makes the appearance of Phyllis Goldstein's A Convenient Hatred: A Short History of Antisemitism nevertheless timely is that she writes not primarily as a historian or polemicist but as a teacher of tolerance. It is left to Sir Harold Evans's foreword to acknowledge outright that anti-Semitism "is a mental condition conducive to paranoia and impervious to truth." Still, the hope seems to be that the book, published by the liberal-minded "Facing History And Ourselves" educational foundation, can inoculate against incipient anti-Semitism among high-school and college students. On the premise that human beings are capable of both good and evil there is every incentive to continue this battle no matter the odds of victory.

Writing in a lucid style that is accessible without being condescending, Goldstein synthesizes and contextualizes the history of the Jews as she describes the relentless hatred they have confronted. Did anti-Semitism begin because Jews stood apart refusing to embrace the same Gods that more powerful civilizations did? Or did it start when they lost their sovereignty and were scattered onside the boundaries of the Land of Israel in the Diaspora? Both possibilities are proffered.

This much the author makes clear: anti-Semitism is as ancient as the Jewish people. The first pogrom – or regime orchestrated rioting against Jews – dates to Greek-dominated ancient Alexandria which also has the distinction of spawning the first blood libel. Soon enough Greek and Roman stereotypes "dehumanized and demonized Jews as a group."

By 325 C.E. as Roman Christianity solidified its hegemony, Church fathers taught their flock to detest the Jews. St. Augustine initially preached they should not be destroyed completely so that they might serve as an example for Christians about the consequences of rejecting Jesus. With the birth of Islam in Arabia (circa. 570), Jews found themselves at the mercy of yet another imperial empire which mostly tolerated them so long as they accepted their place of dhimmi inferiority and paid tribute. Within 200 years of the religion's emergence, 90% of all Jews lived under Islamic rule. "How Jews were treated in a particular place always depended on who was king or caliph. A ruler who was tolerant of Jews …might be followed by one who was greedy, cruel, or just weak," writes Goldstein.

Later, when Christian crusaders sought to roll back Islamic advances Jews invariably paid the price. Between 1096-1149 scores of Jewish communities in Europe were decimated by Christians on their way to recapture the Holy Land from the Muslims. For Christian civilization subjugating the Jews wasn't enough. Over a 300-year period beginning in 1144, Christians in England, France and Germany promulgated the calumny that Jews needed the blood of Christians for ritual purposes. When in 1347 bubonic plague struck in Italy the Jews were blamed for poisoning the wells. Without a country of their own, a perpetual defenseless minority, thousands of Jews were scapegoated and murdered. Take the French Christians who marked St. Valentine's Day in 1349 by burning Jews alive. Barred from owning land and with many professions prohibited to them all Jews were demonized because a minority turned to the "sin" of money lending. All the while, fanatical Dominican, Franciscan and Jesuit orders competed in their cruelty against the Jews.

In the rogues gallery of haters, Spain's King Ferdinand and Queen Isabella go down in history as having ordered the forced deportation in 1492 of the Jews from an Iberian Peninsula newly liberated from Muslim control. Yet, as Goldstein shows, this expulsion was by no means unique; Jews were repeatedly expelled from France, Germany, Hungary and Lithuania and once from England. They headed for the Muslim countries or toward Eastern Europe. Neither offered safe haven for long.

In Europe, by 1537 the founder of Protestantism, Martin Luther only deepened Christianity's teaching of contempt against the Jews. Paradoxically, there were interludes when the Catholic Church found it expedient to protect Jews under its domination. And yet when Polish rulers in 1200 invited Jews to settle in their towns hoping their presence would bring economic prosperity, it was the Church that preached against granting them even limited rights. Jews who settled further east in rural areas of the Ukraine faced a no less malicious and violence-prone Orthodox Church.

With modernity came the prospect of acceptance. If only Jews would acculturate, even assimilate, anti-Semitism might atrophy. Yet, to paraphrase Napoleon, even where Jews abjured claims of nationhood they were nevertheless not fully accepted as individuals. European Jews who converted to Christianity in hopes of blending in discovered that "the 'age of enlightenment' ended some of the isolation, discrimination, and humiliation Jews had experienced" even as new obstacles surfaced. Nationalisms emerged that viewed the Jews, conversions notwithstanding, as foreign within the body politic.

Goldstein paints on a broad historical canvas though with welcome vignettes of human interest. We meet Wilhelm Marr who invented the term "antisemitism" not to describe pathology, but to explain his hostility to the Jews. Economics, too, played its role then as now. The dislocation engendered by the industrial revolution made Jews the target of antagonism. And readers are reminded that Jews are hated for fomenting capitalism and communism; for being clannish and cosmopolitan.

Old lies never fade away they just metastasize. Though the Russian Czar's secret police fabricated The Protocols of the Elders of Zion in 1907 this nefarious conspiracy falsehood has thrived ever since first under the Nazis (and with a small push from Henry Ford in the United States) and today remains widely fashionable in the Muslim Mideast. John Mearsheimer and Stephen Walt hardly invented the insinuation that Jews are culpable of dual-loyalty. That falsehood was in vogue already by the end of World War I when German Jews were charged with helping the enemy and stabbing the Fatherland in the back.

Wisely, Goldstein does not dwell on the Final Solution beyond reporting what is necessary in the context of the overall narrative. While not overlooking the alliance between the Palestinian Arab mufti of Jerusalem and Hitler, she moves swiftly on to post-Holocaust anti-Semitism. Her capsule history of the Arabs' rejection of Israel is meticulously fair-minded reporting that in the course of the 1948 fighting Palestinian Arabs became refugees while noting that "less attention" has been paid to the 875,000 Jews in the Arab world who were forced from their homes. Nor does she gloss over the continuing Muslim penchant for anti-Semitism and anti-Jewish conspiracy theories including the cant that Jews carried out the 9/11 terrorist attacks. The torture murders of Wall Street Journal reporter Daniel Pearl in Pakistan and Ilan Halimi in a Paris suburb are given their due.

Goldstein also covers left-wing anti-Semitism born in Stalin's USSR at the start of the Cold War and now morphed into the "progressive" anti-Zionism most glaringly on display at the 2001 UN's Durban Conference. "Nearly every slander hurled at Jews over the centuries was expressed," at that forum she writes. Anti-globalization sentiment on the right is explained by its xenophobic opposition to "the opening of national borders to ideas, people, and investments." The author might have said more about the no less dangerous left-wing strain.

This is a remarkably concise work (360 pages) covering an extensive period so there is room to quibble. About, for instance, Goldstein's kumbayah description of the Soviet Jewry movement in the United States as a largely ecumenical affair; her view that the movement enjoyed the support of American officialdom is at variance with secretary of state Henry Kissinger's determination to put détente first. Goldstein's rather facile description of the five-year first intifada as "dominated by young Palestinians who threw stones at soldiers" underplays a violent frenzy that claimed 160 Israeli lives and over 1,000 Arab dead (many murdered as "collaborators" in internecine slaughter).

None of this detracts from Goldstein's central thesis: "Words have power, and the link between the language of extremism and actual violence remains as strong as ever." Ultimately, she argues, what has made anti-Semitism "a convenient hatred" is that it serves to mobilize and unite otherwise disparate haters behind a common cause diverting attention away from their own shortcomings.

Over the millennia, anti-Semitism has taken on a metaphysical character making it "impervious to truth." It may be hoisting hope over experience, but let A Convenient Hatred be read worldwide in schools committed to teaching broadmindedness and combating bigotry. Even the jaded have a right to wish that this worthy book will contribute to overcoming the terrible lies told about the Jews.

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How Jewish are Israelis?

Stick an average alumnus of the Israeli public school system into a synagogue during morning prayers and chances are they'd be bewildered. Even if they could, what good would it do them to recollect an arid Bible class they might have been required to sit through?

Israel's secular founders were on the whole Jewishly literate. But for all their practicality they supposed that somehow through osmosis their progeny would be equally versed in the Jewish canon. Few secular politicians pushed for teaching Judaism broadly defined in the public schools. As for the Orthodox political parties, they are happy to direct monies for Jewish education to the network of parochial schools their children attend.

The result has been that what many Israelis know about Judaism and specifically the Jewish religion is refracted through the prism of ignorance, folklore and the handiwork of the taxpayer funded obscurantist religious establishment. Yet despite these self-inflicted wounds, the findings of the latest "Portrait of Israeli Jews" report, produced jointly by the Avi Chai Israel Foundation and the Israel Democracy Institute, confirms that Israelis appreciate in overwhelming numbers that the religion of Israel is a cornerstone of Jewish statehood. Media coverage of the report has spotlighted the findings that 80 percent say they believe in God; 56% believe in an afterlife; 51% in the coming of the messiah and, more curiously, 24% have sought spiritual solace at the graves of righteous figures.

On closer examination, and as the study makes explicit, the data is replete with internal contradictions. For one, secular Israelis are probably not becoming more observant. Of course, even carefully crafted surveys – this one was done in 2009 and released only now after thorough analysis – are only snapshots frozen in time; surveys taken in 1991 and 1999 revealed slightly different attitudes. Moreover, this survey was conducted before the latest swell in tensions between the ultra-Orthodox and the rest of Israeli society. Its nomenclature is necessarily imperfect; insular haredim and those who are scrupulously observant are basically lopped together under the rubric of "ultra-Orthodox." Demographically, the ultra-Orthodox and haredi population is growing while the numbers of secular Israelis is declining.

That said the 121-page survey profitably illuminates Israeli attitudes on identity, religious affiliation, ritual behavior and attitudes toward peoplehood. Among the findings, about half of Israelis of all ethnic backgrounds says their Jewishness trumps any other identity. Though there are sectoral divisions with secular Israelis attributing greater value to their Israeliness and haredim attaching virtually none. Those who define themselves as traditional attach the most importance to their Jewish identity. Broadmindedly, 92% of Israelis agree that level of observance does not equal being a good Jew. Despite cultural differences and a clear sense that Jews in Israel are a different nation, 73% of Israelis express a sense of common destiny with Diaspora Jews.

Unsurprisingly in a country where only state certified Orthodox rabbis can conduct weddings, half of the respondents want to see a civil marriage alternative. A majority also want non-Orthodox streams to enjoy equal status under the law. Most appear able to live with the Orthodox Rabbinate's monopoly on conversions yet would not necessarily expect the converts to live Orthodox lifestyles – though this is precisely what is required by the conversion authorities. Some 48% would even accept Jews who convert through the liberal streams were this legal.

In terms of religious affiliation, 46% of Israelis including most immigrants from the former Soviet Union think of themselves as secular; though only 16% say tradition plays no role in their lives and a miniscule 3% are anti-religious. Seven percent said they were haredi; 15% Orthodox; and 32% broadly traditional. In practice, 14% assert they "meticulously" observe tradition; 26% say they do so "to a great extent" while 44% do so "to some extent."

Yet contradictions abound. Almost all Jewish Israelis attach value to religious life-cycle events from circumcision to Shiva. Similarly, 85% like that traditional Jewish festivals are observed even if they are selective in their own practice. For instance, Israelis cherish Shabbat as a day of rest though not necessarily in ways that are meaningful to the Orthodox. With school on Fridays and Sunday a regular workday, Shabbat is the weekend, so Israelis seem to favor a Golden Mean. Most watch television or listen to radio and dedicate the day to family; many have a special Friday night meal and light Sabbath candles. But they by and large don't want their cinemas and cafes shuttered on Shabbat or for public transportation to come to a halt, or have restrictions placed on cultural or sporting events.

Here's a further indication of Israelis' traditional bent: most eat only kosher food -- at home and outside -- and 72% never let pork cross their lips. This does not mean they approve of the rabbinate's policy of withholding kashrut certificates from technically "kosher" restaurants that are open on Shabbat.

What does all this add up to? It suggests that if we want Israelis to have a deeper appreciation for Judaism – as religion and as a civilization – greater investment is required. The Israeli advantage of Hebrew literacy does not offset a disturbing lack of Jewish learning. There is small comfort in knowing that most Israelis believe in God if they are woefully ignorant about the sacred history that should inform that belief. The good news is that most Israelis are Zionists and most want Israel to be both a Jewish and democratic state. One way to pull all these strands together and strengthen them is to rethink the way Israelis are exposed to Judaism. The survey found that Israelis are not fond of the country's either-or school systems of being forced to categorize their children as either "Orthodox" or "secular" from kindergarten. Many want the option of sending their children to integrated schools. The good news is that demand for pluralistic, traditional public education is real. Too bad, then, that such curricula receive precious little government backing.
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Links:


http://www.idi.org.il/sites/english/events/Other_Events/Documents/GuttmanAviChaiReport2012_EngFinal.pdf
A Portrait of Israeli Jews Asher Arian and Aayala Keissar-Sugerman, Avi Chai and Israel Democracy Institute.
Most Israeli Jews feel a sense of affinity to their country and the Jewish people.