There’s an officer in charge of freedom of information at the Coordinator of Government Activities in the Territories, but she’s not familiar with the Freedom of Information Law. About a month ago, she said so at a court hearing on a petition asking the Defense Ministry to clarify the criteria for revoking entry permits of relatives of assailants against Israelis.
The author of the petition, attorney Tamir Blank, asked the officer whether she had considered his request for information under the law’s provisions that temper the Shin Bet security service’s exemption regarding providing information. Her reply was: “I don’t know. I’m not familiar with the law.”
This strange revelation just makes worse the off-the-cuff order by then-Defense Minister Avigdor Lieberman in August 2016: to cancel the existing entry permits to Israel of relatives of Palestinian assailants. The petition under the Freedom of Information Law is the cherry on the top of a legal battle – which has not received publicity – that ultimately reduced the arbitrariness of Lieberman’s directive and its application on the ground.
The ones who implemented the directive in October 2016 were COGAT and the Liaison Administration subordinate to it. The soldiers of the liaison units initially called this kind of revocation of an entry permit “Operations Branch Prevention: Sanction.” In 2018 they changed “Sanction” to “Deterrence.” Operation Branch Prevention, administrative in nature, contrasts with the Shin Bet prevention, which clearly defines a person “a security risk.”
The bureaucracy revealed that it’s confused, in the absence of a legally-based order. During the first year of the implementation of Lieberman’s directive (until the end of 2017), workers who held permits and people with names identical to those of Palestinians who had attacked or were suspected of attacking Israelis indeed weren’t allowed to pass through the checkpoints.
But the permits they held – which are actually permits letting employers employ Palestinian workers – weren’t actually revoked. The workers discovered that if they found a way to cross other than at a checkpoint and its permits-reading devices, they could continue working in Israel without any problem. And when the employer’s permit to employ them expired, it was renewed without any problem.
This, however, was not the case for merchants, who receive their permits directly from the liaison offices. When they sought to apply to have the obstacle lifted, often with the help of the women from rights group Machsom Watch, it emerged that a suitable application form didn’t even exist. The soldier/bureaucrats evaded answering the volunteers’ queries. Eventually, the Machsom Watch women realized that at every liaison office the decree was implemented in a different way: There was no uniform procedure and the decree was interpreted differently in different places.
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At the end of 2017, it looked as if the bureaucracy had gotten its act together. On December 14 that year, a huge number of permits were revoked all at once. The circle of Palestinians affected thus expanded: up to hundreds of people from the same clans – whose familial connection with the perpetrator of the attack or attempted attack was very distant, or even nonexistent and only the surname was identical.
In March 2018, lawyers began submitting to the Jerusalem District Court (in its capacity as an administrative court) petitions of Palestinians who had been harmed by the directive and its implementation. Attorney Blank – who Machsom Watch volunteers hire when the cases of permits-denial they handle reach court – also filed a number of petitions.
The State Prosecutor’s Office revealed that it too was confused: In the law, nothing was stipulated for revoking a permit due to a “sanction” or “deterrence.” The prosecution repeatedly requested postponements of the hearings, explaining that the authorities’ position on the matter had not yet been formulated.
‘Prevention’ and ‘deterrence’
At first the judges acceded to the requests for postponement. When they didn’t accede, the state didn’t submit a statement in reply to the petitioners, and simply annulled the revocation of the petitioners’ entry permits and the petitioners went back to work. The dam was opened in July 2018 with the cancellation of the “Operations Branch Preventions” of petitioners from the northern West Bank represented by attorney Mor Soker. This was repeated in dozens of petitions, which therefore became superfluous. Again and again the courts ruled that the state had to pay the court costs.
The attorney general had no alternative but, in October 2018, to cancel Operations Branch Prevention: Deterrence against an entire extended family. It requested an additional consultation on implementation regarding an assailant’s first- and second-degree relatives.
Blank became aware of this in the state’s reply to one of the petitions he submitted. That is, two years after the military bureaucracy denied entry to Israel to thousands of Palestinian permit holders, in a sweeping and arbitrary manner, the attorney general annulled the justification for the revocation of many permits. This is a considerable achievement of the petitioners and the lawyers.
Then, after filing new petitions, Blank received the state’s reply: “The person in question is a relative of an attacker and therefore does not fulfill the criteria for entrance to Israel.” Blank did not find any such criterion in the “Status for Permitting Entry” that was posted on the COGAT website.
In November 2018 he submitted to COGAT a request under the Freedom of Information Law: He asked where the criterion was published, what its exact formulation was, from when was it in effect, what was the procedure for submitting an appeal, and how long a ban on entry lasted and what were the criteria for it ending it. He received a reply that did not answer his questions.
In the meantime, at the beginning of February 2019, the Jerusalem District Prosector’s Office stated that the authorities were drawing up the criteria, and at the end of that month it announced that the work had been completed. That is, more than three years after the implementation of Lieberman’s directive began.
Blank sent COGAT an updated request for detailing the criteria that had been crafted. “When you want to deter someone, you issue a warning. A vague and behind-the-scenes warning isn’t suited to a state of law,” he told Haaretz. COGAT several times postponed a reply “in light of the complexity of the issue and the need to carry out various inquiries with defense officials.”
In August 2019 at the Tel Aviv District Court, Blank, acting on behalf of 18 Machsom Watch volunteers, filed a petition for the publication of the criteria. The respondents: the Defense Ministry/COGAT and the Shin Bet.
Only once the petition was filed did the COGAT officer in charge of freedom of information give a partial answer to the request for information on the criteria. And only on the eve of the court session on the petition, which was held on January 19, a month ago, did the prosecutor’s office’s reply include the procedure for “Entering/Deleting Operations Branch Prevention: Deterrence for Families of Terrorists.” It does not yet appear on COGAT’S website.
Afflicting the entire family
Still, this is a very general procedure, Blank says. “I see criteria take into account the severity of the case. I see criteria that distinguish between a cousin who lives near the attacker and someone who lives in another town and has no connection with him and wants to know how all these variables affect the period of preventing the relative’s entry,” Blank said.
He added that ordinary Operations Branch entry-preventions are valid for six months. “From a humane perspective,” he said of the vague procedure, “it’s like putting a person in the pitch dark, in an unlighted room, and he’s getting socked and doesn’t know from where. In the many cases we know about, people who worked for 10 or 20 years in Israel were harmed. They had never previously been in this circle of security issues, and all of a sudden there’s a procedure that puts an entire family into the conflict.”
The Tel Aviv District Prosecutor’s Office has rejected allegations that it disparaged the Freedom of Information Law by delaying the filing of a reply. “An authority is not obligated to create new information at the request of an applicant, or to adapt existing information to his needs,” the office wrote in a summary submitted to the court this week. It added that praise is due to the respondents who made “great efforts to produce an updated and unclassified version of the relevant [classified] procedure.”
The office added that the definition of an assailant “accords with the designation by the Operations Division of the relevant incident as a terror attack and recognition of the terrorist as such.” Any information that wasn’t supplied – including the period of the prevention, as stated in the summary, “is produced by the General Security Service [the Shin Bet] and is assimilated into the working procedure of the Coordinator of Government Activities in the Territories.”
The Freedom of Information Law, the prosecutor’s office noted, exempts all information the Shin Bet has gathered, produced or holds, thus in accordance with the law the petition must be rejected. Regarding the testimony of the COGAT officer responsible for the law, it was stated that she was a partner to all the meetings held recently on the respondents’ policy. “She is not a lawyer and the fact she did not recall the numbers of the provisions in the law does not mean she is not proficient at her job.”
Already before the publication of the summary from the prosecutor’s office, Haaretz asked COGAT how it explains that “the person you appointed as responsible for the Freedom of Information Law is not familiar with the law?”
In reply to this single sentence it answered: “Contrary to what has been claimed, the officer in question performs her duties faithfully around the clock and with the requisite professionalism in the framework of her area of responsibility. This is done in the same way as the values of the Israel Defense Forces constitute a beacon for all the officers of the Coordinator of Government Activities in the Territories who see their military service as a mission and act for the preservation of the security of the State of Israel and its citizens.
“Even though we do not view favorably the attempt to depict the incident with derision and a lack of clarity, while ignoring the full picture and the pressure under which she was at that time, the matter of the minutes of the meeting will be thoroughly examined by the professionals concerned. Also, we note that the fact that the law’s provisions were not present before the officer’s eyes during the testimony in court explains the difficulty in providing a precise answer as was required of her. This specific incident does not attest even in the slightest to the officer’s deep familiarity with the Freedom of Information Law since her first day on the job.
“We regret the choice to besmirch the reputation of an officer in the unit who does everything in her power to advance the public’s right to know and strictly enforces the law, and we emphasize that the Public Inquiries Department at the Coordinator of Government Activities in the Territories will persevere in the sacred task.”