The recent harassment of left-wing activists has brought back to relevance the High Court of Justice petition submitted by the Association of Human Rights in Israel against the Shin Bet security service on the summoning of left-wing activists by the police for “warning talks.” Those talks were initiated by the Shin Bet, seemingly because of the demonstrations and acts of protest the left-wing activists participated in.
These talks served to question the activists about their actions and their friends in their political activities, and to warn them against going down the slippery slope or crossing the line.
The High Court sought to clarify matters with the Shin Bet, mostly without the participation of the petitioners. In the end, the High Court instructed the Shin Bet a year and a half ago to consult with its legal adviser on using this authority, and also instructed the government bodies involved to inform those summoned to for questioning that they did not have to agree to show up.
But the High Court left in place the secret rules and directives according to which the Shin Bet acts to prevent subversion, which allow the Shin Bet to use such summonses and investigations, whether directly or through the police. The court made this ruling despite its fears that cases of subversion would be handled using the harsher tools applying to terrorism.
It is not clear why the High Court ended its handling of the petition without at least ensuring that the flaw that it feared – wrapping subversion together with terrorism – was dealt with. The High Court noted that the main part of the remedy for the problems in the summoning and investigations was in oversight. This statement is a reason for us citizens to worry. The Israeli governmental system is known for its great weakness in everything concerning oversight. Instead of the oversight preventing the abuse of governmental authority, and especially in a sensitive area, it can be assumed that it will be abused.
The truth is that the source of the problem from which this dubious government activity is derived is the cabinet decision made in the wake of the events of October 2000, which made the Shin Bet responsible for gathering information on public disorder with nationalist-subversive motives.
“Nationalist disturbances of the public order” were defined as “activities in the area of public order, which are carried out by a group or an individual for subversive ideological motives on a nationalistic basis, which could harm national security, the order of the democratic regime or its institutions.” In other words, there is no characterization whatsoever of the type of activity in the area of public order. It does not say it must be illegal and violent, or that the danger from it is to national security or the order of the democratic government – expressions that are broad and imprecise. It is not necessary for the danger to be a violation of the law against these interests. So the scope is very broad, almost unlimited.
Theoretically, it may be possible to describe an especially rare and extreme case in which demonstrations accompanied by riots reach such dimensions and a level of intensity that they create a real and concrete danger of the commission of crimes against national security or the democratic government. But this is not what the law’s author intended, and the evidence is that it includes even actions by an individual. Can an individual protester endanger national security or its government?
The intention was to authorize the Shin Bet to gather information for the purpose of preventing riots at nationalist demonstrations, in other words those of Arabs. This is where the idea of these preliminary summonses comes from, which include humiliating searches, whose unavoidable effect is to chill the willingness to demonstrate. What person, and especially a member of a minority, wants to get into trouble with the Shin Bet? While Jewish nationalism can celebrate in public, and the more the merrier, Arab nationalism expressed in protests and demonstrations needs to be suffocated. In demonstrations by Arabs, the right to demonstrate is replaced by a theoretical fear of harm to national security and the right of the country to prevent the fulfillment of the right to demonstrate.
The court may have used a more limited formula, in which it related to activities in the area of public order as illegal and violent. But in its wording too, the Shin Bet was afforded a role that is clearly in the area of public order, which should be in the hands of the police. Even as far as the court is concerned, it is clear that such activity on the basis of nationalist subversion, even if it is conducted within the framework of demonstrations only, could very well endanger national security. As stated earlier, except for clearly extreme cases, it is not at all clear. Similar to the manipulative use made of “national security,” the expression “subversion” or “subversives” is used similarly. Every acceptable definition of subversion includes an aspect of secrecy and there is no greater contradiction than that between a demonstration and covert activity. This is nothing but an artificial effort to load a weak phrase with unclear expressions, in an attempt to strengthen it.
The court also approved the Shin Bet’s definition of subversion even though it has a broad scope and is unclear. According to this definition, the expected result or goal of subversive activity, which in itself can be nonviolent and legal, could well be a danger to national security or damage the democratic government even if it does not represent a violation of the law.
The court in its analysis related to the additional alternative that appears in the Shin Bet’s definition too, which refers to the danger of the carrying out of a specific crime against national security. But the justices ruled out the broader aspect in the definition, even though it does not conform with the rule of law.
Except for the exceptional cases of the activities of Jews on the Temple Mount, where the fear is of acts that will bring to actual bloodshed, as has happened in the past, the Shin Bet’s actions to prevent subversion is directed toward Arabs and the left that opposes the occupation. In doing so, the Shin Bet has taken a side in the political dispute that splits Israeli society and harnesses itself to advancing partisan political interests, in complete opposition to the security service law.
Such a Shin Bet, operating in a partisan fashion, is itself destroying the public’s faith in it. Trust which it needs like a breath of fresh air. The cabinet decision in the wake of the events of October 2000, which is the rot of al this evil, needs to be revoked. It is also unreasonable for the police to be the long arm of the Shin Bet without it being granted this specific authority by law.
A place in which a person is not suspected of violating the law and there is no concrete information on his expected illegal activity as part of a demonstration or other protest, provides not justification to summon him for questioning. Such summons belong in the repertoire of dark regimes. The ability to refuse the summons is no more than a cosmetic fix that does not heal the disease. The source of the problem is not just in the Shin Bet. Its main source comes from the delegitimization by the government of the opponents of the occupation.
The result of this delegitimization is that government bodies and private bodies that act in this framework mark those who disagree with the government’s policies as enemies, and treat them appropriately, for now through the use of intimidation. Another result of this delegitimization is that opponents of the occupation have been prey for violence against them. Their real predator is not those who carry out the attacks but the government that by calling them traitors puts their lives at risk.
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