The anti-terror law passed through Israel’s Knesset last week without one of its scariest pieces, the normalization of administrative detention, which remains dependent on the country’s 67-year-old self-declared state of emergency. That could have a bizarre consequence.
A new anti-terrorism bill passed by Israel’s Knesset last week may have actually perpetuated the single, looming problem its writers set out to solve — ending Israel’s 67-year state of emergency.
The bill is one of many pushed through the Knesset in recent years as part of an effort to eventually revoke the country’s declared state of emergency, initially declared by the British Mandate government in the 1940s and renewed every year since by Israel’s legislative body.
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The emergency regulations have been abused by Israeli state bodies to draw authorities outside the framework of the law for years, from the regulation of taxi meters to health care procedures to administrative detention, the practice of imprisoning somebody — indefinitely — without charge or trial.
In order to eventually end the permanent “state of emergency,” legislators intended to codify the regulations and authorities that were vested in temporary “emergency laws,” and those British Mandate Laws, like administrative detention, which are only valid as long as Israel is in a state of emergency.
To that end, earlier versions of the anti-terror bill that passed last week included a change that would have removed the “only valid in a state of emergency” clause from the law that authorizes administrative detention. The line that would have allowed administrative detention in peacetime, however, was removed in committee, and the final law does not include any normalization of the practice.
Why did legislators remove the administrative detention clause of the anti-terrorism law? Somebody smart (a Knesset committee legal advisor) probably warned them that permanently revoking habeas corpus (authorizing indefinite detention without charge or trial) for reasons not related to war-time and/or a state of emergency would make the country look very bad.
It was probably also feared that Israel’s own High Court of Justice might not uphold the law if it were removed from the framework of a temporary, emergency situation.
Domestic Israeli legal norms, like those in international law, hold that these types of draconian measures are supposed to be used in extraordinary cases in extraordinary times. They are supposed to be an exception to the rule, not the rule itself.
So if the Knesset were to have added the practice of administrative detention to the regular criminal law books, it would have been saying this is the new normal, as opposed to a 67-year state of emergency, is technically still an exception even though we’ve never known anything different
Lawyers, and legal advisors to executive branches of government have a special knack for convincing themselves of the legality of practices any layman can easily understands violate the most basic precepts of rule of law and constitutionality. For instance, that is how George Bush’s lawyers convinced themselves through legal word-play that torture and unlimited surveillance were legal, and it is how Obama’s lawyers convinced themselves that a U.S. president could order the execution of American citizens as long as the missile was fired from a pilot-less plane in some far-off land.
It is the same way that for 67 years Israel’s government legal advisors, and its Supreme Court justices, have convinced themselves that as long the Knesset votes to declare a state of emergency, then habeas corpus and most other civil rights can be “temporarily” thrown out the window.
The ironic thing is that this terror law, which is problematic for far more reasons than I could possibly list here, was supposed to be a part of the process of ending Israel’s state of emergency. But as the most draconian security measures are kept out of it, the government is all but ensuring that the state of emergency remains. If it were to end it now, the security services would lose their favorite tools.
Then again, nothing ever happens that easily. The clause that authorizes administrative detention is expected to be brought back to committee for further discussion in the coming weeks, which means it could very well become law after all. I’ll update here if anything changes.