Don’t Boost Defense Minister’s Power Over Terror Suspects, Knesset Lawyers Urge

Counsels oppose govt-sponsored bill allowing minister to imprison people without charges even during normal, non-emergency times

File photo: Current Defense Minister Avigdor Lieberman.
David Bachar

The legal counseling team at the Knesset is urging the parliamentarians to soften a bill, sponsored by the government, that would expand the defense minister’s powers under a 1979 law, which enables him to impose administrative detention – imprisonment without charges – and other sanctions on terrorism suspects during states of emergency. The new law simply removes that “state of emergency” constraint.

However, the counsels urge that the minister must not be given unfettered power to choose constraints on suspects involved with terrorism in order to prevent attacks.

The bill would give the minister the authority to impose restrictions, even when no state of emergency exists. The counsels’ comments, delivered to the Knesset’s Constitution committee, target a specific section of the bill, which had been written together with representatives of the Shin Bet security service and defense establishment. The section enables the defense minister to impose “any directive or other sanction” warranted by state security or public safety.

Under the bill, the interior minister has to cosign the defense minister’s orders, but in case of emergency the defense minister can issue an order on his own authority and obtain the interior minister’s signature within 48 hours.

Ahead of the discussion on the bill today (Monday), the counsels urge the Knesset members to delete the section in question entirely. The bill also lists specific restrictions, for instance regarding occupation; leaving the country; or contacting certain people; the counsels suggest replacing the section with a list of 10 restrictions from which the minister could choose.

They point out that as it is, the freedom granted to the minister is extreme and seriously impinges on citizens’ basic rights. “In our opinion, the legislator should set the boundaries of the minister’s powers through primary legislation, and in detail,” wrote the legal counsels, adding that the sanctions that would remain are very broad and give the security forces a great deal of flexibility.

The legal team also called on the parliamentarians to take away the minister’s exclusive right to impose sanctions, saying he should only do so at the behest of the head of the Shin Bet, or attorney-general.

They also urge that the reasons behind such sanctions should be significantly limited. The government wants the minister to be able to impose restrictions any time he “has reasonable foundation to assume that state security or the public’s safety require it.” The counsels feel the minister’s response should be confined to cases in which he is convinced that state security or the public’s safety are in imminent danger.

Any arrest warrant the minister issues would be limited to six months and a restraining order would be limited to a year. But the minister could extend either, subject to the court’s approval.

Again, the law would apply only within the Green Line.

Existing law confines arrests based on the minster’s orders to states of emergency in Israel. The whole idea had been to limit the minister’s powers.

The bill basically removes the “state of emergency” element and frees the minister to initiate administrative arrests routinely. In any case, since the law’s initial enactment, Israel has declared a state of emergency every year and the procedure has become routine anyway.

Israel has stated that it only resorts to administrative detention during states of emergency or extreme situations

The 1979 law empowers the defense minister to have a person arrested for up to six months, and to expand that warrant. Any person subjected to administrative arrest must be brought before a judge within 48 hours for confirmation of the arrest warrant, and if kept under arrest, must be brought before the court again every three months to discuss the detention.

Presently the permissible grounds for administrative detention are broad and vague, stating merely that the minister need only to reasonably suspect that the person constitute a possible danger to state or public security. This vagueness is not changed in the new bill, though it does add the limitation that the minister may not assign his powers to issue administrative detention warrants. Also, the minister must allow the suspect to state his claims to him personally before the warrant is issued, or within 30 days as of issuing the order in case granting the right to a hearing could frustrate the purpose for which the order was issued in the first place.