More on the Israeli Model

[OJ ed. Note this post was submitted before comments to Mr. Guiora’s first post were received.]

In Monday’s post, I presented the fundamental principles of administrative detention. Today, I will discuss the process and considerations when to apply the measure as developed over the course of years in Israel with respect to a specific individual. The measure is applied in the West Bank by order of the military commander (Israel has never annexed the West Bank) and in Israel proper by the Minister of Defense. In both, the decision is subject to judicial review (in the West Bank by two military courts and the Israeli Supreme Court; in Israel by the Tel Aviv District Court and by the Israeli Supreme Court).

As to the process: when the security forces (Israel Security Agency, ISA; formerly known as General Security Services) receive intelligence information suggesting a specific individual’s involvement in terrorism the following options are ‘on the table’:

1) Arrest for purposes of initiating a criminal law process (detention-interrogation-trial)
2) Arrest for purposes of administrative detention (detention-hearings)
3) Not arrest (monitor/surveillance).

If the ISA chooses to recommend the commander impose administrative detention on the individual, then the military commander’s legal advisor is requested to review the intelligence information in order advise the commander whether to adopt the recommendation. In my postings as senior security advisor to the West Bank Legal Advisor (1990-1992) and Gaza Strip Legal Advisor (1994-1997), I was asked to review ISA recommendations to military commanders regarding Palestinian residents of the West Bank and Gaza Strip. My recommendations were either to:

1) Accept the ISA’s detention recommendation and if yes, whether to affirm the ISA’s recommendation regarding length of detention (up to six months); OR
2) Reject the ISA recommendation and recommend either not to detain the individual or to arrest for purposes of initiating a criminal law process.

My recommendations (to the commander) were based on the following considerations:

1) Quality of intelligence and source reliability/credibility (this required expert opinion by an ISA official);
2) Timeliness/staleness of the intelligence information (this required expert opinion by an ISA case agent);
3) Previous activities of the individual (this required review of the intelligence dossier prepared by the ISA);
4) Impact on the individual’s immediate community; this was of particular relevance if the individual was a highly regarded/respected leader (this required expert opinion by an ISA official);
5) NGO response (while Israeli and international human rights organizations were unanimous in their criticism of the measure, there was additional sensitivity with respect certain categories including women, ‘people of prominence’, and attorneys);
6) Severity of the danger posed by the individual (this required expert opinion by an ISA official);
7) Whether the intelligence information could be declassified and the individual interrogated thereby enabling initiation of the criminal law process;
8. Danger to the source/s were the information to be declassified (this required expert opinion by an ISA official);
9) Whether the Israel Supreme Court (sitting as the High Court of Justice) would intervene in the commander’s decision.

Were I to affirm the ISA’s recommendation then the intelligence dossier and my recommendations were brought before the commander; if the commander accepted my recommendation the individual would be detained in accordance with the signed order which included a short description of the order’s justification (largely a general statement regarding the individual’s activity).

As I shall discuss in subsequent postings, the orders are subject to judicial review (military court and Israel Supreme Court).