27 August 2007 - The Shabak in international legal context

One of the legal issues that arises in counter-terror operations concerns the power of the authorities assigned to investigate and prevent terror attacks. In Israel, those authorities are the Shabak—the SHerut Bitachon Klali, otherwise known as the General Security Service (GSS) or Israel Security Service. The American equivalent is probably the (FBI). The Shabak report directly to the Prime Minister alone.

In recent years, the Shabak have become notorious, largely because of a highly-publicized Israeli High Court of Justice ruling in 1999 that prevented the Shabak from using physical pressure during interrogations. Previously, the use of such methods had been frequent. Rights groups allege that it carries on today, under the pretext of the “ticking bomb” scenario, which invokes the “necessity” defense.

There are other concerns about the Shabak, one of which is that a Shabak agent can apparently direct security forces to arrest or deny border passage to an individual without explanation or possibility of review. The Shabak is governed by a 2002 law passed by the Knesset, but much about its internal workings is unknown, and its agents are anonymous. The strand of accountability is very thin indeed.

Nonetheless, not all internal security organizations are the same. There are anti-civil secret police, which are used to sow fear among the citizenry and prevent any challenges to the government in power; and then there are pro-civil secret police, which aim to protect democracy by confronting external threats as well as domestic attempts to seize power. The Shabak, like the FBI, fall into the latter category.

The Shabak have two basic missions: to prevent Arab terror, and to prevent Jewish extremism. These are the two proven and potent threats to the security of Israel’s citizens and the endurance of its democracy. Yet – Qui custodiet ipsos custodes? – Who will guard the guards? This is a question every democracy around the world is facing in the aftermath of 9/11 and subsequent events in the “war on terror.”

In a recently-released book, Comparative Legal Approaches to Homeland Security and Anti-Terrorism, Professor James Beckman of the University of Tampa examines counter-terror laws throughout the democratic world, including Israel. He finds that all democracies have expanded the police powers of the state; the effects on civil liberties, however, vary. (169) Here is a general overview of his findings:

The United States

Since 9/11, the U.S. has passed the PATRIOT Act of 2001, which expands the intelligence-gathering powers of law enforcement agencies and permits broader authority to the state in investigation and detention of suspects. The U.S. also created the Department of Homeland Security, which combines several previously differentiated departments into a single, powerful but bureaucratic agency.

One of the problems that arises is the lack of accountability over local law enforcement; federal authorities will investigate civil rights violations in only a small minority of cases. Expanded surveillance, authorized in some cases by the President himself, has also created controversy. The “extraordinary renditions” abroad by the Central Intelligence Agency (CIA) have also created concern.

Perhaps the most widely-criticized practice has been the detention of so-called “unlawful enemy combatants” in facilities such as Camp X-Ray at Guantanamo Bay. After losing several cases in the U.S. Supreme Court, and facing intense public criticism, the Bush administration began introducing greater elements of due process for these prisoners and is moving towards closing the Guantanamo facility.

The United Kingdom

The U.K. is thought to have some of the most aggressive anti-terror laws in the world, and had extensive experience with counter-terror before 9/11, owing to the Northern Ireland conflict. Though civil rights are not protected by a constitution, and civil rights norms differ in some ways from those of the U.S., they are neither unimportant to the British public nor to Britain’s self-image as a democracy.

The British equivalent of the Shabak is the MI-5, which deals with “terrorism, espionage, and other serious crimes against the state.” MI-5 works with local law enforcement and other government agencies; like the Shabak, its staturory authority was only created long after the service itself. There is a process for reviewing complaints against it, but there is no judicial review of MI-5 activities.

The U.K. Terrorism Act of 2000, passed before 9/11, brings U.K. law into compliance with international human rights laws, but also broadened the scope of anti-terror laws in the U.K. Post-9/11 laws include the Anti-Terrorism Crime and Security Act of 2001 and the Prevention of Terrorism Act of 2005. Both were heavily criticized. After the London bombings of 7/7, the Terrorism Act of 2005/2006 was passed.

This last Act made “glorification” of terrorism a crime, among other controversial provisions. It also provided for the most extensive administrative detention period (90 days) of any country in Western Europe; however, the House of Commons defeated that provision. Surveillance via closed-circuit television (CCTV) remains one of the defining features of British counter-terror and law enforcement.

Germany

German history—both the decline of the Weimar Republic and the abuses by the Nazi regime—is an important background to an understanding of German counter-terror laws. In addition, because of its history, Germany is constrained to use law enforcement approaches to terror, as opposed to the defence-based approaches favored by Israel and sometimes used by the U.S. and the U.K.

Since 9/11, German law enforcement authorities have expanded the use of surveillance and other techniques. However, the central intelligence and counter-terror agencies are constitutionally separated from local law enforcement. The Federal Office for the Protection of the Constitution is in charge of protecting Germany against terror threats, and enjoys sweeping powers of investigation.

Other agencies, such as the Federal Criminal Investigation Office, have also become involved. Many German laws have been amended since 9/11, though no major structural changes to law enforcement were made. As in the U.K., various kinds of rhetorical support for terror were criminalized, and some of the protections previously enjoyed by religious groups were weakened considerably.

The powers of the Border Police were also strengthened: they can now, for instance, question anyone at the border without having to justify the interrogation in terms of border protection. As in the U.K., counter-terrorism and immigration laws have become more closely intertwined, with non-Germans required to provide identification data beyond the ordinary biometric data collected from Germans.

Spain

The “traditional” terror threat from Basque separatists has now been joined by threats from Al-Qaeda. The Spanish constitution actually allows for fundamental rights and liberties to be suspended during periods of national emergency and in cases of terrorism. The country’s law enforcement structure is controlled by the national government but involves several different, often competing, agencies.

Spanish legislative changes since 9/11 have been criticized by the Special Rapporteur on Torture for the UN Commission on Human Rights. Laws provide for the banning of political organizations and other measures. Interestingly, after the Madrid train bombings of 3/11 (2004), Spain did not make new amendments to its counter-terror laws; rather, it withdrew all of its remaining troops from Iraq.

Law enforcement officers have, however, been given sweeping powers of investigation, surveillance and detention. Detainees are held, often incommunicado, for at least 48 hours and for up to five days when suspected of terrorism charges. Spanish law also allows secret proceedings in certain cases, once approval from a magistrate has been granted; terrorism suspects are tried in special courts, as well.

Russia

The Russian constitution (like the Soviet constitution before it?) enshrines human rights and liberties. However, this is not generally thought to be adequate protection, especially amidst growing concerns about the erosion of the rule of law and checks on executive power. Many of the post-9/11 counter-terror laws passed in Russia are suspected of having been enacted for political, not security, reasons.

Many Russian responses to internal terror threats—as in Chechnya—are excessively brutal and disproportionate in their impact on innocent civilians. However, they enjoy wide popular support. Like Israel, Beckman writes, Russia uses its military in its counter-terrorism efforts. President Putin has also tripled the resources of the Federal Security Service (FSS), the successor to the notorious KGB.

Under Russian law, the state president has direct responsibility for counter-terror activities. Counter-terror authority is also given to state and local authorities. The FSS leads anti-terror operations, and enjoys vast powers; it can even negotiate with terrorists, but cannot make concessions. Restrictions on speech are among the severest in the democratic world, and may have little to do with counter-terror.

Japan

Japan does not have extensive experience with terror, but was the target of a nerve gas attack in 1995 by members of a home-grown religious cult. This incident prompted more expansive laws and reduced protections for religious groups. Like Germany, however, Japan is constitutionally barred from using certain military means to combat terror and must rely on ordinary criminal law enforcement.

Local law enforcement is stressed in Japan. However, the central government remains involved in surveillance and investigation of terrorist activity. Like Spain and Israel, Japan prosecutes terrorists not for the specific crime of “terrorism” but for the underlying criminal offenses. (In the other two cases, however, more than the criminal law enforcement structure is involved in counter-terror activity.)

Israel

Israel has been threatened by terror since its independence in 1948. It does not have a constitution, but does have Basic Laws and judicial traditions that are broadly protective of human rights. However, the Basic Law on Freedom of Occupation and the Basic Law on Human Dignity and Liberty contain a “limitation clause” that allows certain departures “in the name of collective security of society.”

Israel’s counter-terror laws are of long standing and consistency, though they do not actually define “terrorism” as a crime. Counter-terror responsibility in parts of the occupied territories now falls to the Palestinian Authority, though the Israeli military is given considerable free reign to act against perceived threats there. Israel does prevent “terrorist speech” and membership in terror organizations.

Prior to 1980, civilians accused of violating these laws in Israel would face charges in a military court. A kind of martial law still prevails in the occupied territories (i.e. the West Bank), where defendants enjoy few protections and little due process. Israel has stepped up its military response to terrorism, moving from a strategy aimed at dealing with civil disturbance to one dealing with a near-war situation.

One method used is “targeted killings,” which the High Court of Justice refused to allow in all circumstances but refused to prohibit outright. The Court did, however, reject the category of “unlawful combatant.” Another is the security fence, which has been extremely effective at stopping terror attacks but has been challenged at the International Court of Justice (ICJ) and Israel’s High Court.

Israel’s Shabak is active in counterterror efforts. Like the other countries discussed, Israel uses extensive surveillance and grants its law enforcement authorities broad powers of investigation. Unlike some of the other examples, Israel uses its military in this policing effort, not just in monitoring suspected terrorist activities but in pre-empting and responding to specific threats, especially in the occupied territories.

The book’s analysis is compromised (slightly) by its acceptance, at face value, of partisan claims about Israeli policy, such as that of James Zogby of the Arab American Institute, who said Israel is “the last place on Earth I’d go for a model. They are notorious violators of human rights and have not solved the problem.” (xii) In fact, Israel’s experience hold many positive (as well as negative) lessons.

International Law

Beckman also considers the implications of European Union and international law for counter-terror law enforcement. There are, he points out, roughly thirteen multi-lateral treaties and protocols dealing with terrorism, included UN Security Council Resolution 1373, passed after 9/11. International courts such as the ICJ and the International Criminal Court have proved largely inadequate to the task, however.

The EU has also created new measures to deal with terror, including an EU arrest warrant that is valid throughout Europe, overcoming delays and jurisdiction problems. At the same time, the European Convention on Human Rights and the European Court of Human Rights play a restraining role. Interpol, and to a lesser extent Europol, have also played a small role in counter-terror operations thus far.

Conclusions

Beckman divides the countries studied into two groups: the U.S., U.K., Russia and Israel consider themselves to be fighting a “war against terror,” involving military as well as civilian forces; Japan, Germany and Spain have opted instead for a law enforcement approach, giving less power to the executive. However, Russia, Israel and Spain use the military in domestic counter-terror policing to some extent.

The U.K., Israel, Japan and Spain use a centralized police structure that makes intelligence-gathering easier; the U.S., Germany and Russia use a more decentralized structure, which is thought to minimize abuses of power. Most countries, except Spain, passed new terrorism laws after being attacked. Russia has the longest period of administrative detention—30 days—without trial.

Israel, meanwhile, has gone the furthest in criminalizing speech that is considered supportive of terrorism, even barring the use of symbols associated with terror groups. The U.K. has gone the furthest in amending its counter-terror laws, which were already fairly well-developed; it would have exceeded Russia in its allowed period of administrative detention if the relevant provision had not been defeated.

Relevance to Israel and the Shabak

Israel is not unique in having an internal security organization that is minimally accountable. The Shabak seem unique in its methods of investigation and interrogation; however, this may only be because of the legal challenges that the Shabak has faced through the Israeli court system. Israel goes further than other countries in some areas—such as speech restrictions—but less far in others.

Overall, it is difficult to assess whether Israel’s Shabak presents a special case, an “outlying” example in the democratic spectrum of counter-terror law enforcement. Given the fact that only Israel is occupying neighboring territory, this might create grounds for a political challenge to the legitimacy of Shabak’s activities. On the other hand, the unique dangers faced by Israel might mitigate this challenge.

The legal issues are far less clear—certainly to my non-expert eyes. If proven, the persistent use of physical pressure, in defiance of Israeli law and court decisions, could provide grounds for international litigation—especially given that there have been no criminal investigations of any of the 500 complaints submitted to since 2001. However, domestic legal remedies may have to be exhausted first.