Israel Supreme Court struck a grievous blow to the country’s democratic system this week, issuing a ruling that should have sparked immediate outrage among various civil liberties and human rights organizations.
Defying decency and common sense, Justice Salim Joubran rejected a request by two Israeli minors and an adult being held by the Shin Bet to meet with or even speak to their lawyers.
Despite this fragrant violation of basic democratic norms, virtually the only discernible sound emerging from Israel’s ordinarily vociferous left is that of crickets chirping peacefully at night.
The detainees have been held incommunicado for the past two weeks, denied the right to counsel and prevented from speaking to their families – and there is no end in sight to their detention.
While acknowledging in his ruling that, “there is no question that the balance between the suspect’s rights and the public interest to conclude an investigation changes when minors are involved,” Joubran nonetheless authorized the continued trampling of their fundamental freedoms.
Incredibly, he justified the move by asserting that, “I am convinced that due to the severity of the actions allegedly committed by the appellants, and the fear of interference in the investigation of other suspects involved in the case – the balance has yet to change, and that there is room to extend the meeting ban for the suspects.”
In other words, because the unproven allegations against them are serious, Joubran sees no problem in negating the cherished right to consult with an attorney.
This is an affront to everything that democracy stands for. Do we really want to entrust the government with the power to make its own citizens disappear for weeks on end, especially when children are involved? If there is sufficient evidence against the three detainees, then by all means try them, convict them and ship them off to jail. Whoever carried out the Duma attack committed an act of wanton murder and should pay for his or her crimes.
But you don’t toss aside the rights of the accused just to make the job of investigators a little easier.
Indeed, this is not even a case of a “ticking time bomb,” of temporarily denying a person their rights in order to prevent an imminent lethal act. The suspicions against those being held relate to something that already took place.
By contrast, an Israeli Arab in Nazareth was placed into administrative detention back in mid-October after she sent a text message to relatives and friends stating that, “I very much want to be a martyr. I want to struggle and fight in order to be a martyr in Jerusalem. I want to die for G-d.”
In that case, one can at least argue that the extraordinary measure of detaining her without trial was a matter of forestalling an imminent threat to public safety.
But to employ such a step against citizens after the incident in question has already occurred is dubious to say the least.
Just imagine if one of the three Israeli detainees now being held was your own teenage son, and you were not allowed to speak with him or see him, nor even be informed of the nature of the charges against him nor when he might be set free.
And yet, as of this writing, neither the Israel Democracy Institute, B’Tselem nor even the National Council for the Child appear to have uttered a single word of protest against the government’s actions.
Apparently, their ostensible concern for liberty doesn’t extend to those whose ideology might differ from their world view. Their selective indignation is at best hypocritical and at worst downright devious.
To its credit, the Association for Civil Rights in Israel (ACR I) did come out with a statement that was highly critical of the government’s recent use of administrative orders, noting that they “are made according to privileged material” and that the state is not even required to prove the suspect’s “actions or intent beyond a reasonable doubt.”
Nevertheless, ACR I lumped together cases where such orders were used to stop Palestinian terrorists from committing future acts along with those applied to Israeli citizens suspected of past crimes, which only muddies the waters and detracts from the overall argument.
The bottom line is that the government must cease using administrative orders and detention against Israeli citizens, unless there is an immediate and pressing need to prevent an impending terror attack.
You can’t protect democracy by undermining its very foundations. Either arrest a person outright, or build a case against him and then detain him.
In a celebrated speech to the English parliament in March 1775, Edmund Burke said, “It is not what a lawyer tells me I may do, but what humanity, reason and justice tell me I ought to do.”
And those values demand that Israel respect its citizens and their fundamental liberties regardless of their political beliefs.
Reprinted with author’s permission from The Jerusalem Post