The moment Prime Minister Benjamin Netanyahu announced his plan to use “technological methods from the war on terror” to track coronavirus patients, it was clear that it would be impossible to take this candy away from the government’s eager hands. The term “dangerous precedent” was coined for just such situations, in which a tool created for extreme situations slowly makes its way into daily life.
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In its stubborn battle against the people who petitioned the High Court of Justice against cellphone location tracking by the Shin Bet security service of COVID-19 patients, the cabinet has come up with a trick that let it eat its cake and have it too: It asked the Knesset Subcommittee for Intelligence, Secret Services, Captives and Missing Soldiers to vote Tuesday morning to approve extending the emergency regulations that permit the tracking for six weeks (until June 16) or until permanent legislation is enacted, whichever comes first.
In other words, it will continue this gross violation of the privacy of law-abiding citizens for at least another six weeks, while at the same time seeking to enshrine it in ordinary legislation. All this is being done in the hope that it won’t be needed in any case, because the pandemic will subside by the time summer comes. But if it returns this winter, as the Health Ministry has warned, then it will be possible to once again pull out what was already approved and worked in the past.
This doesn’t seem to be exactly what the High Court of Justice was hoping for when it ruled last week that if the cabinet wants to continue the Shin Bet tracking, it must promptly introduce ordinary legislation to replace the emergency regulations, and only then will it be possible to extend those regulations for an interim period of “a few weeks.” Now, both the government’s attorneys and the petitioners will doubtlessly engage in hairsplitting over the precise definition of “a few weeks.” Are six weeks “a few”?
But either way, and even if this period is shortened, the end result to which the High Court’s ruling is pushing us is that this tracking will be enshrined in regular legislation – “the high road,” as jurists call it. Instead of focusing on the substance of this tactic, that is, the use of extremely invasive tracking technology against Israeli citizens, the justices have once again chosen to focus on procedure – the process by which the regulations were adopted, without the checks and balances that ostensibly exist in the standard legislative process.
This approach may have been correct when the whole affair began, since the cabinet crudely bypassed the Knesset in the dead of night at a time when there were still no functioning parliamentary committees. But since then, not only has a functioning subcommittee been formed, but a few other things have also happened in the political world. Consequently, the subcommittee is no longer headed by Gabi Ashkenazi, critic from the opposition, but by Gabi Ashkenazi, member of the ruling coalition.
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This development should have reshuffled the deck. How can Ashkenazi be consider a suitable parliamentary overseer of draconian regulations by a government to which he is connected, and in whose cabinet he will be sitting in another six weeks? Obviously, he isn’t. As evidence, he already extended the preliminary debate on the regulations for another few days so the cabinet could decide, in its great magnanimity, whether it wanted to proceed with legislation or not.
Instead of protecting the public against the continued invasion of its privacy by the secret service’s secretive technologies, the High Court justices and Ashkenazi are merely granting the government legitimacy to continue it. The only important thing is the process.