Israel Seeks to Exclude Shin Bet Detainees From Minimum Cell Size Requirement

Government calls for hearing on request be held behind closed doors to explain to judges why it it needs to hold those being questioned by security service under more cramped conditions

An Israeli prison guard keeps watch from a tower at Ayalon prison in Ramle near Tel Aviv February 13, 2013
REUTERS

The Israeli government is seeking to exclude detainees who are questioned by the Shin Bet security service from a High Court of Justice ruling on prison conditions that requires prisoners to have at least three square meters (32 square feet) of cell space. Its reasoning is that applying therule would damage the Shin Bet's ability to collect intelligence and combat terrorism. 

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The government's position was presented at a High Court hearing on Tuesday on a request by the state for an extension of time to comply with the prison space requirement. It asked that the hearing on the request be held behind closed doors in the absence of the representatives of the prisoners to explain to the judges why it was necessary to hold those being questioned by the Shin Bet under more cramped conditions. Prosecutors representing the Shin Bet also took the position that the court ruling does not in any event apply to Shin Bet detainees.

In response, however, Justice Hanan Melcer said “the problem is worst” in Shin Bet custody, although he was also highly critical of prison conditions in general. He demanded an improvement in the general situation and claimed that the current standards are highly marginal even by comparison to some non-democratic countries. Melcer also took a prosecutor to task for saying that the state is working on the problem. “Don’t say ‘the state.’ Say ‘the government.’ We are the state too.”

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For his part, Justice Neal Hendel asked why the prosecutors were taking the position that the ruling does not apply to Shin Bet prisoners when the ruling makes reference to “each detainee and each prisoner.” In response, senior prosecutor Aner Helman said the ruling did not relate to interrogation wings of prisons.

Earlier in the hearing, the prosecutors addressed the court ruling as it applies to providing three square meters of space to the general prison population of 2,800, explaining that plans call for the requirement to be met in part by releasing prisoners and by having some of them housed in tents.

Lawyers for one of the petitioners on behalf of the prison population, the Association for Civil Rights in Israel, objected to the prosecutors’ request to present evidence to the court on an ex parte basis – meaning in the absence of the other side in the case. The justices rejected ACRI’s position, however.

“I am proud of the ruling but there are state security aspects here,” said Justice Udi Shoham. “The questioning of security detainees, sometimes a ticking bomb and sometimes not, creates special circumstances and they need to be heard. Your opposition is outrageous.” The petitioners then relented.

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In the course of the hearing, the Shin Bet presented information that was cleared for publication explaining its stance for excluding detainees being held for Shin Bet questioning from the ruling regarding minimum cell space. “Applying the ruling to detainees being questioned in the Shin Bet’s interrogation facilities could cause significant, across-the-board damage to the Shin Bet’s ability to collect intelligence and to foil terrorism,” the statement said.

“This will lead to a substantial and drastic decline of roughly hundreds of investigations a year to foil [terrorism]. This decline will directly result in a drastic decline in the Shin Bet’s capacity to collect intelligence in connection with the investigations, in putting [suspects] on trial and removing terrorism suspects [on the ground] and substantial harm to deterrence both in Israel and in Judea and Samaria [the West Bank].”

The Shin Bet added that changes to the “special character of Shin Bet facilities,” as the agency termed it, “could lead to longer interrogations and harm the intelligence results.” This Shin Bet’s position was being presented with the knowledge of the agency’s director, Nadav Argaman, it was noted.