Analysis |

NSO Scandal Shows Israelis Are Fine With Human Rights Violations as Long as Judges Approve

Even if police use of spyware against Israeli citizens was legally approved, the NSO affair highlights how the judicial system is used as a rubber stamp for draconian tools

Noa Landau
Noa Landau
A logo adorns a wall on a branch of the Israeli NSO Group company, near the southern Israeli town of Sapir, last year.
A logo adorns a wall on a branch of the Israeli NSO Group company, near the southern Israeli town of Sapir, last year.Credit: Sebastian Scheiner / AP
Noa Landau
Noa Landau

A large part of the public discourse surrounding the revelation by Calcalist, according to which the police used spyware created by the NSO Group against Israeli citizens, is currently focusing on legal minutiae and arguments: were these draconian surveillance methods legally approved or supervised – and, if so, within what framework?

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The original report in Calcalist emphasized over and over, in the headline and throughout the text, that this surveillance was carried out “without supervision or inspection.” Or, in more detail: “Without a court order or the supervision of a judge.”

The police, too, who did not deny the main allegation that it planted the Pegasus malware on the cellphones of citizens, are clinging desperately to the legal aspects of the case. In its initial response, the police stated that “the Israel Police acts in accordance with the authority granted by law and according to court orders – and within the framework of rules and regulations.”

It also stated that its operations “are under continuous supervision and inspection by the attorney general and additional external legal officials.” Subsequently, the official police version changed somewhat, saying that “all of the police activity in this area is lawful, based on court orders and supervised working practices.”

In response to the police’s assertion that its operations are under judicial supervision,the spokesperson for the Israeli Judicial Authority said that “the judicial branch is unaware of any request or any granting of a court order that would permit the use of NSO’s Pegasus software as described in the article.”

The attorney general, for his part, also distanced himself from the police’s claim and demanded explanations from the police commissioner. If all of these bodies are being truthful and not merely trying to quiet the drama – which is far from certain – then there is another possibility that the police might have been alluding to: that they believe that their legal case rests on a clause in the law on wiretapping that allows the police chief, under certain circumstances, to approve wiretaps without a court order. However, that approval is only valid for 48 hours and in any case, the attorney general must be informed.

Either way – and without an external committee of inquiry we may never know the truth – the obsessive preoccupation with the almost metaphorical question of who gave the order proves, once again, how Israelis are far too blasé when their laws, their judges and their courts are nothing more than rubber stamps for violations of their fundamental rights. “If a judge approved it and issued a court order, then everything’s fine and dandy,” say those who are reassured by court orders, who allow themselves to be reassured by the establishment, and for whom the Israel legal system is holier than holy, infallible and incapable of clumsy blunders.

This is a factually distorted view of the Israeli legal system, according to which it supervises the country’s security bodies with total objectivity. And it starts, of course, with the legitimization of the injustices of the occupation. As so eloquently shown by Ra’anan Alexandrowicz’s 2011 documentary “The Law in these Parts,” which should be compulsory viewing for every Israeli citizen, the legal system has, over the years, given its seal of approval to the daily violation of human rights in the Palestinian territories – and it continues to do so today.

The Supreme Court has given the military regime a free hand to violate human rights in the territories. Some of its rulings have actively condoned violations of international law; and, of course, it also legitimized the greatest violation of all – the settlement enterprise. This is the kind of judicial supervision that everyone seems to be proud of and reassured by.

Because Israel is a liberal democracy that cares about human rights and the rule of law only when it comes to us, the Israelis, not when it’s in our Palestinian backyard. Indeed, when it was recently reported that Pegasus spyware had been deployed on the cellphones of activists working for the Palestinian organizations that Israel declared terrorist entities, none of the websites or newspapers splashed the headline across their front pages – as they are doing now that it’s Jewish cellphones that have been hacked.

As the Calcalist reporter wrote, for members of the military’s elite cyber unit, it’s right and proper to use these tools “as part of investigations and operations in which the civil rights of the suspects are less important – or not important at all.” What a staggering sentence.

But even if we forget about the occupation for a moment, and only talk about the democratic, proper Israel, it’s still undeniable that the legal system has always tended to grant blanket approval to every request brought before it by the defense establishment, ex parte and behind closed doors. Proof of this can be found in the hundreds and hundreds of gag orders issued by the courts, many of which have nothing to do with national security and are almost always automatically approved by judges in every branch and region of the judiciary.

These, too, are often issued ex parte; a representative of the security services will simply ask for an urgent court order. This is not my own allegation; retired High Court Justice Dalia Dorner and a former chief military censor have both admitted that judges act as rubber stamps for these requests and that they are approved in most cases without any discussion about their necessity.

It is entirely conceivable that, in the end, we’ll discover that some judge signed a late-night court order – in their pajamas, perhaps – without really knowing what they were signing. It’s also possible that the law is too broad and police used it as a legal argument to hack someone’s cellphone.

Or maybe the attorney general did know something after all. So what? That does not make use of a draconian tool, which has been vilified across the progressive world, any more legitimate. A court order does not make it okay. Laws, judges and court orders are not the be all and end all of democracy. It is for exactly this reason, for example, that we supposedly have the right of appeal. The problem is that when decisions are made in the shadows, there’s no one to lodge an appeal.

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