The government has submitted legislation that would expand the defense minister’s powers to detain Israeli citizens without trial or issue other administrative orders restricting their freedom.
The bill would authorize the minister to restrict the professions a person could work in, forbid them to enter or leave a given locale, forbid them to leave the country or have contact with certain people, and impose “any other order or restriction necessitated by considerations of national security or the public safety.” It is slated to apply solely within Israel; administrative orders in the West Bank are governed by military regulations.
The bill would limit the duration of an administrative detention order to six months and that of other administrative orders to one year. But it would allow the defense minister to renew such orders indefinitely if he obtains authorization from the courts.
All administrative orders would have to be countersigned by the interior minister. But in urgent cases, the defense minister could issue and implement the order on his own; he would then have 48 hours to obtain the interior minister’s signature. All administrative orders would also need judicial approval within 48 hours after they are issued.
The person against whom the order is issued would normally be allowed to present his arguments against it to the defense minister beforehand. But if the minister believes holding the hearing beforehand would thwart the purpose of the order, he can postpone the hearing for up to 30 days after he issues it.
Next week, the Knesset Constitution Committee will start discussing the bill, which was originally part of the sweeping counterterrorism law the Knesset approved a few months ago, but was split off for further consideration. A legal opinion prepared by the committee’s legal advisors, however, argues that the bill as it stands is highly problematic.
“The authority to restrict a person’s freedom of movement and freedom of occupation, and to intervene in every detail of his life, is far-reaching,” it warned. “Even though a restrictive order is more ‘proportionate’ than a detention order, since restricting a man’s freedom through detention does him the greatest injury, the harm done by imposing a restrictive order is liable to be extremely grave. Consideration should also be given to the fact that restrictive orders won’t be imposed as an alternative to detention orders, but will expand the circle of people supervised by the security services.”
Committee Chairman Nissan Slomiansky (Habayit Hayehudi) said he won’t accept all the government’s proposals unless he is convinced that they are genuinely justified. “This bill is very explosive, very laden,” he told Haaretz. “We must seriously consider how we balance protecting national security and the public against the severe injury to human rights.”
Existing law permits administrative detention and other restrictive orders only during a “state of emergency.” That provision was meant to limit the use of such orders, but because a state of emergency has officially been in effect ever since Israel was established in 1948, their use has become routine. Now, perhaps because the Knesset has grown increasingly reluctant to keep extending the state of emergency, the government is seeking to erase the link between such orders and the state of emergency and instead make them normal parts of the security services’ “toolkit,” available even if the state of emergency is someday repealed.
The Constitution Committee’s legal advisors argued that if the requirement of a state of emergency is abolished, the new law should include some other provision to limit the use of restrictive orders. They proposed that “the law state explicitly that administrative detention is a tool that should be used only in extreme cases.”
They also warned that should the law pass, it was likely to spark fierce international criticism. Until now, they noted, this criticism has been somewhat muted by Israel’s stated position that restrictive orders were only used in a state of emergency or extreme cases.
The existing law on administrative detentions, last updated in 1979, also allows the defense minister to issue administrative detention orders for up to six months and to renew the orders indefinitely if the courts permit. It requires the initial order to be approved by a district court president within 48 hours after it is issued, and the court must reconsider the order’s validity every three months.
The existing law provides sweeping grounds for administrative detention: The minister may detain anyone as long as he has “reasonable grounds for assuming that considerations of national security or the public safety obligate a given person to be held in detention.” That sweeping justification is preserved in the new bill.
Other restrictive orders are currently governed by the Emergency Defense Regulations, which were enacted by the British Mandatory government but adopted into Israeli law when the state was founded. These regulations allow the minister to impose restrictive orders to ensure the public’s safety, defend the country, keep the peace or put down a rebellion or a riot.