Analysis A Catch 22 of Rights

Elhanan Tennenbaum is being questioned with the consent of his attorneys as an individual released under restrictive conditions. This status is allowed for under the criminal code on the decision of a police officer, and does not require a judge to issue an arrest warrant. Tennenbaum may withdraw his consent any time and take the issue of his arrest to the courts.

His interrogation is being conducted by three authorities - the police, the Shin Bet security service and the Israel Defense Forces.

Shin Bet investigators are especially empowered by the justice minister, under the criminal procedure order (testimony), to conduct inquiries into suspicions about criminal offenses and the violation of anti-terror orders.

"For the purposes of investigations, the legal authority of Shin Bet investigators is the same as the legal power of the police," the High Court of Justice ruled in 1999. The High Court also determined that in lieu of special legal authority to pressure subjects during questioning, Shin Bet investigators are not allowed to do so. Laws pertaining to regular interrogations forbid pressuring subjects, and this applies to Shin Bet investigators.

As noted in an article a year ago by State Attorney Edna Arbel, a police investigation is essentially different from a Shin Bet investigation because "the Shin Bet's main task is to gather intelligence by exploiting the subject's latent information potential, primarily for the purpose of thwarting future activities.

This, in contrast to police investigations, whose main purpose is to collect evidence against an individual suspected of committing a past offense."

Tennenbaum's interrogation is problematic from the point of view of his rights because it appears it is not a regular "prisoner debriefing." His questioning could lead to an indictment on serious criminal charges if "sufficient evidence" is found. Thus he should not be questioned without the mandatory legal warning that he does not have to say anything that might incriminate him.

The authorities could waive indicting Tennenbaum on criminal charges, but this can only be done with the approval of the attorney general. In this case, Tennenbaum would be likely to provide comprehensive information on all he went through, without fear of it being used against him.

Without a promise of not being indicted, he must be warned and allowed to exercise his right to remain silent.