Civil Liberties under Pressure

Even the most democratic and civic-minded of countries has found that the conflict between war and human liberties is profound. Writing in 1917, J. A. Hobson recounted the vast invasions of liberty that took place during World War I in Great Britain and warned his fellow citizens that the termination of actual hostilities would not bring about a quick restoration of previous norms.^[21] In Israel there are even fewer safeguards than in other democratic nations: there is no written constitution and no bill of rights, and in the prevailing conception civil liberties “are granted to the individual by authorities rather than assured the individual.” ^[22]

Despite all this Israel has been relatively free of restrictions on freedom of expression. As the annual human rights report of the U.S. Department of State summarizes the matter, “Israeli society is characterized by its openness and by the wide-ranging and lively public debate of all issues of popular concern.” ^[23] To take one striking example, during the 1973 Yom Kippur War an Arab member of the Israeli Knesset published a poem eulogizing the Egyptian soldiers who had launched an attack on Israeli forces across the Suez Canal. Clearly security concerns have not had the impact on human liberties that could have been projected from the general experience of democratic regimes in wartime.

If Israel’s record is generally good, especially in a comparative perspective, it clearly has its weak points. The major weaknesses in Israeli civil liberties are in the area of religious laws, many of which conflict with secular democratic standards, and in the role of emergency regulations in the country’s governance.^[24] The issue of religion and politics will be covered in chapter 8; here we will focus primarily on the tension between civil liberties and the use of “emergency” measures to protect national security.

On May 19, 1948, four days after the declaration of Israeli independence, the provisional government of the new state proclaimed a state of emergency. This state of emergency has been in force continuously ever since.

When the emergency was first declared, the 650,000 Jews of Mandatory Palestine had already been engaged for almost six months in a civil war with 1.5 million Palestinian Arabs, and they faced an invasion by the regular armies of five Arab states with a total population of about 30 million. The new state survived by an effort of total mobilization, but about 1 percent of the population was killed—almost fifty times the American casualty rate in Vietnam. After 1948 Israel remained on a permanent war footing. A protracted official state of emergency may be more understandable for Israel than for almost any other contemporary state. But it is difficult to maintain the same sense of urgency for such an extended period of time. The protraction of the crisis leads, inevitably, to a routinization of crisis procedures, to a normalization of what were originally extraordinary measures. The crisis becomes devalued over time.

The most drastic and controversial emergency provisions are the Defense (Emergency) Regulations promulgated by the British Mandatory government in 1945, which remain in effect except where explicitly annulled or superseded by either actions of the cabinet (under Section 9 of the Law and Administration Ordinance) or by Knesset legislation.^[25] The 1945 Defense (Emergency) Regulations were a compilation of old and new Mandatory orders issued in response to the double threat of internal rebellion and world war. Following the Arab “revolt” in Palestine in 1936, the Privy Council in London adopted the Palestine (Defense) Order in Council 1937, authorizing the British high commissioner in Palestine to enact such defense regulations “as appear to him in his unfettered discretion to be necessary or expedient for securing public safety, the defence of Palestine, the maintenance of public order and the suppression of mutiny, rebellion, and riot and for maintaining supplies and services essential to the life of the community.” ^[26] The subsequent regulations reflected the preoccupations of a colonial power facing widespread unrest and the threat of war; according to one British expert, they were “the type of regulations that came from the Boer War.” ^[27]

In September 1945, facing now the prospect of Jewish rebellion, the Mandate authorities published the collected set of regulations, including new measures on such subjects as illegal immigration.^[28] The 147 regulations, covering forty-one pages, establish a virtual regime of martial law. They include a military court system empowered to try all offenses against the regulations, with no writ of habeas corpus and no appeal. Broad powers of search and seizure were given to British soldiers. Other sections of the regulations severely circumscribe “unlawful” groups and permit long-term detention without trial—a provision under which thousands of Jews were held, some for up to five or six years. The regulations permit deportation of even native-born citizens and establish prior censorship requiring a permit for any material of “political significance.” Any area can be closed, with suspension of civil courts there, property can be requisitioned or destroyed, movement limited, mail opened, services suspended, or businesses closed—all by virtue of incontestable military orders. Furthermore, the military is not even required to publish orders that it intends to enforce.

The Defense Regulations aroused a storm of protest from the Jewish population in Palestine. Richard Crossman, after hearing Jewish complaints as a visiting member of the Anglo-American Committee of Inquiry in early 1946, recorded in his diary that “I certainly had no idea of the severity of the Emergency Regulations.…there can be no doubt that Palestine today is a police state.” ^[29] This opinion was shared by Bernard (Dov) Joseph, later Israeli minister of justice, who in 1948 published a critique of British rule in Palestine that also used the term “police state” in describing the Defense Regulations.^[30]

The State of Israel inherited all Mandate legislation, unless explicitly annulled. The new government thus found itself effortlessly in possession of a formidable apparatus of emergency powers that could be attributed to the law-abiding British. Only the section restricting immigration was canceled; the rest, despite previous criticism, remained on the books.

There were some efforts to jettison this dubious colonial legacy, especially from Israeli leaders who had themselves been detained under the Defense Regulations. Opposition leader Menachem Begin, who with his comrades in Etsel had been a prime target of the regulations, declared during a 1951 debate: “The law that you used is Nazi, it is tyrannical, it is immoral; and an immoral law is also an illegal law.…If these laws, terror laws of a repressive regime, remain in the State of Israel—the day will come when no group will remain unharmed by them. . . .” ^[31]

But in time it became clear that there was no overwhelming impulse to revoke or replace the 1945 regulations. The continuing threat to national existence made retention of some extraordinary powers, beyond normal civil and judicial procedures, seem the better part of wisdom. And it was unlikely that any subsequent Knesset legislation would provide the full range of measures fortuitously made available by the British.

With such wide powers available, the use of the Defense Regulations has been relatively limited. Whole sections of the regulations have hardly been utilized. Such measures as the death penalty and corporal punishment have never been invoked. The major use—and most controversy—involve a small number of the regulations: Regulations 86–101 on censorship; Regulations 109–112 on restriction, detention, and deportation; and Regulation 125 on closed areas.

The most broadly applied have been the censorship provisions, which still form the legal basis for control of the media. The regulations require the licensing of all media and put the decision in the hands of Interior Ministry officials, who need not justify their refusal to grant a license. An earlier 1933 Press Ordinance also gives the minister of interior power to stop the publication of any newspaper for any period of time. The Defense Regulations permit the censorship of any material “prejudicial to the defence of Palestine [Israel] or to the public safety or to public order.”

For Israelis, control of the media is not just a question of genuine threats to security but also evokes the traditional sensitivity to how the community is seen on the outside. Amos Elon calls this “a provincial determination not to let the skeletons out,” reminiscent of the biblical injunction “to tell it not in Gath and publish it not on the streets of Ashkelon.” ^[32] A striking parallel to this verse was expressed by an Israeli chief of staff, Rafael Eytan, who declared that “nothing which might give satisfaction to an Arab, should be allowed to be published by the Israeli news media.” ^[33] This may be an extreme view, but in fact the “right to know” is not officially recognized in Israel. On the contrary, the Defense Regulations dealing with censorship have been backed up by other statutes designed to reinforce secrecy.

In practice, restrictions are usually limited to sensitive security information. In the case of the press, censorship is softened by a voluntary arrangement, renegotiated in 1996, under which newspapers submit military and political material for review, and excisions can be appealed to a committee representing the press, military, and the general public. The clubbiness of this system certainly suggests a pragmatic Jewish approach to keeping secrets within the family, while circumventing the harsh potential of the British regulations. However, the arrangement covers only the press; books are submitted directly to the censor for review if they “relate to state security,” and some have been withheld from publication or censored, usually because of revelation of secrets. Censorship of movies and theater has usually, though not always, been limited to material that is offensive to religious or social mores—such as pornography—and a narrow appeal process is available.^[34]

Early attempts to censure extreme views in the press by suspending publication outright, through the emergency regulations, led to the Kol Ha’am case before the Israeli Supreme Court in 1953. In this case the high court struck down a government suspension of the Communist Party newspaper, invalidating censorship carried out on political rather than narrowly defined security grounds. But secrecy on security grounds has also been stripped away considerably by the general informal leakiness of the system. Cabinet meetings have often been leaked to the press, complete with direct quotations. The ubiquity of leaks may go some way to meet the public’s right or need to know: “the news media are in a position to circulate sufficient amounts of information to enable the Israeli political system to function according to the democratic model.” ^[35] Thus, in the end, the balance between security requirements and the need to know is shaped by the convergence of three traditional patterns: an urge to shield sensitive matters from outside scrutiny, an institutionalized bargaining relationship among the important players, and the usual informal flow of unvarnished opinion and information. Somehow the more sensitive information does not generally get out while the merely embarrassing facts usually do. But the arrangements governing this have little to do with formal rules, whether in emergency regulations or otherwise.

All of this applies, however, within the Jewish community and does not extend across the ethnic divide to the Arab minority in Israel. The Arabic-language press is concentrated in East Jerusalem, thus falling under Israeli law rather than the military occupation regime, though it serves the West Bank and Gaza population as well as Israeli Arabs. But permits to publish a newspaper have been denied because of suspicion of links to hostile organizations, and there is little chance for an appellant to disprove the “security risk” label.^[36] Before 1996 Arab newspapers did not benefit from the voluntary arrangement described above but were required to submit all material for review, with no appeal process. Consequently even translated articles from the Hebrew press were sometimes disallowed.

Even more than the censorship provisions, other Defense Regulations have been applied almost exclusively to the Arab minority. From 1948 to 1966, many border areas, not coincidentally corresponding to Arab-populated areas, were placed under a military government whose legal basis was the 1945 Defense Regulations. The de facto result was that Jews and Arabs lived under different sets of rules despite the formal civic equality. Though restrictions on movement were applied elsewhere as well, their main use was in the military government area. Under Regulation 125, these areas were declared “closed,” and all entrance and exit required a permit, though in practice this was seldom required of Jews passing through such areas. Under Regulations 109 and 110, persons under special suspicion could be further restricted in their movements, to a particular town or even house arrest.^[37]

Most serious, perhaps, was the way in which Regulation 125 could be used to create “uncultivated” or “abandoned” land that, in accord with Israeli legislation, became subject to expropriation by the state. Villagers who happened to be elsewhere could be kept there or prevented from entering their home village. In some cases—in at least eleven villages in the 1949–1950 period—Regulation 125 was used to evacuate entire villages of their existing populations, on security grounds. The courts interfered in these cases only on technical grounds, or when it seemed clear that the motivation was not security.^[38]

Most of the land expropriations occurred in the early 1950s, and the military government in Arab areas ended in 1966. From that point, at least formally, emergency measures under the British regulations applied equally to all areas of the country and all sectors of the population. The most serious continuing controversy regarding the use of the Defense Regulations has been the matter of administrative detention.

Regulation 111 empowered “a military commander” to detain any person in any place of the commander’s choosing, for renewable periods of one year. In essence, this authority could mean indefinite imprisonment without trial, with no restrictions on the discretion of the commander, loose rules of evidence, and no judicial review apart from an “advisory committee” to make recommendations to the officer. As noted, this measure was used extensively by the British in the 1945–1948 period. It is argued that preventive detention may be the lesser of evils in dealing with the kinds of threats presented by terrorist organizations. The evidence available in such cases often cannot be used in a court of law: it is based on hearsay, or on intelligence sources that cannot be revealed, or on the testimony of informers whose identification would put them in jeopardy. Rather than changing the rules of the courtroom in order to obtain criminal convictions, it is preferable to adopt lesser measures, still subject to some form of review, that make it possible to act when a reasonable certainty of danger to society exists.^[39]

There is, inevitably, controversy about whether those detained are actually threats to society. One outside critic of preventive detention, who studied the cases of those detained in 1971, concluded “that virtually all of those detained had, in fact, been involved in terrorist activities; that the vast majority could not be tried under Israeli law; and that a considerable number would probably engage in future terrorism if released.” ^[40] In any event, the number of those detained has never been great, and the overall trend within Israel was to reduce the number. From the figures announced sporadically, it appears that 315 detention orders were issued in 1956–1957, but that the number fell to twenty-three in 1970 and fifteen in 1971 (not including the West Bank and Gaza, where the number was much higher; see chapter 10). By 1978 the total, including the occupied territories, was thirty; in 1979 (when Regulation 111 was replaced by regular legislation) there were eighteen; and by 1981 the number had dropped to twelve in the occupied territories and none in Israel.^[41] Since then the use of administrative detention has been limited almost entirely to the occupied territories.

In summary, the continuing existence of the 1945 British Defense (Emergency) Regulations raises serious problems from a civil liberties perspecive, and hard questions can also be raised regarding some of the ways they have been applied. But at the same time, usage of the regulations has generally been selective and limited and has been softened in implementation by internal guidelines and court review that provide some protection against abuse. Critics ask why these guidelines, which actually define practice, could not be converted into laws that would remove the specter of colonial police powers from the books. This has been done with administrative detention, perhaps the most controversial of the “emergency” measures; it would not be so revolutionary to apply the same treatment to the remaining regulations.

There are two channels for replacing the British Defense Regulations with more regularized and more accountable provisions. The first is emergency regulations issued by government ministers under Section 9 of the Law and Administration Ordinance of 1948; these are measures based on a grant of authority from the legislative branch and are not valid beyond three months unless extended by the Knesset. Finally, there is regular legislation whose period of validity is dependent on the existence of a state of emergency, or whose functioning is in some other way affected by the emergency. Such legislation may also give the government the right to carry out “emergency-type” measures, subject to review; this was the approach used in the Emergency Powers (Detention) Law, 1979, which replaced the detention provisions of the 1945 British regulations.

The Law and Administration Ordinance was the first law passed by the Provisional State Council of the new State of Israel, on May 19, 1948. It provides in Section 9 that, upon declaration of a state of emergency, the cabinet could authorize the prime minister or any other minister to issue emergency regulations “for the defense of the state, the public safety, and the maintenance of essential supplies and services.” The major use of Section 9 emergency regulations since the mid-1970s has been in authorizing return-to-work orders to employees providing “vital public services.” With the increase of such orders has also come a number of instances in which ministers have reissued emergency regulations, without Knesset action, in order to keep a particular group of employees working. In the 1977–1982 period, ten such renewed regulations were issued either before the end of the three-month period, or within three months after its expiration. In one of these cases, involving workers in the Ministry of Education, the reissue of the regulation without Knesset approval was successfully challenged in a district labor court.^[42] On the whole, the use of emergency regulations under Section 9 was relatively noncontroversial, despite the broad wording of the statute, and declined over time (apart from their use in labor disputes). They were used primarily in wartime, reflecting the need, even under conditions of permanent crisis, to reserve some measures for the most threatening occasions only. It is interesting to note that during the 1982 Lebanese War, for example, the government made use of Section 9 to authorize the detention of non-Israeli citizens, but in doing so proclaimed a “special” state of emergency whose legal provenance was uncertain.^[43]

The third channel for emergency measures, as noted, is directly through the Knesset. Since it is the act of a deliberative legislative body, Knesset “emergency” legislation represents the greatest degree of normalization in adjustment to permanent crisis. When a declared state of emergency is a permanent fixture, laws whose operation is dependent on its existence are difficult to distinguish from other laws. A number of Israeli laws fit this description, as do emergency regulations under Section 9 that were simply extended by the Knesset until the end of the state of emergency.^[44] Many of these laws are “emergency” measures in name only, since in scope, procedure, reviewability in court, and other respects, they do not differ from ordinary legislation. An example of delegated powers that are genuinely emergency-related is the authority given the minister of defense, in the Law of Military Service, to order a mobilization and take other appropriate military measures in the face of an imminent threat. As befits genuine emergencies, these powers are limited to fourteen days without Knesset approval.^[45]

All of the emergency regulations are subject to judicial review. Courts have generally applied two criteria: whether the procedural requirements of the law have been followed, and whether substantively the authority has acted in good faith and in accord with the stated purposes of the regulation. Regarding the merits of the case, however, the court has ordinarily declined to look at the content of orders under the Defense Regulations, beyond ascertaining that they were enacted in good faith and according to relevant considerations within the scope of the regulation (Alyubi v. Minister of Defense, H. C. 46/50, 4 P.D. 222).^[46]

The realistic possibility of reversing an order has also been limited by the refusal of authorities to divulge evidence or the reasons behind their actions. This can make it almost impossible to show that an authority has acted in bad faith. This problem was alleviated to some degree by changes in the Law of Evidence, in 1968, which abolished absolute state privilege on disclosure of evidence and authorized courts to hear evidence in camera when state security was involved. Subsequently, judges on appeal have examined secret evidence to see if it really needed to be withheld from the defendant.^[47]

Generally the judicial system has functioned as an independent guardian of civil liberties and the chief repository of the civic approach in Israeli life. Given the traditional strength of legal and judicial institutions in Jewish life, this is perhaps to be expected; the strongest resistance to the pressures of security come where Western liberal ideas and a deeply Jewish respect for the judiciary come together and reinforce each other. Other aspects of tradition that have worked to desanctify security fetishes are the habitual skepticism toward authority (the lese majesté of Jewish life), the tendency to practical bargaining rather than rigid hierarchies, the unstoppable flow of informal communication within the community, and the sheer lack of experience in carrying out the kind of controls associated with a garrison state. To this should be added the normal human tendency to normalize or routinize life during a protracted crisis, rather than to remain indefinitely fixated on the presumed threat.

On the other hand, where the dictates of security coincided with particular legacies of the Jewish experience, the challenge to democracy was greatest. The very ease with which the young and vulnerable state accepted the primacy of security concerns was testimony to the preoccupation—perhaps even the obsession—with security that is a part of the Jewish condition. And on issues like guarding secrets from the outside world, contracting civilly with an enemy minority, or dealing with acts of political violence, it was also too easy to slip into the particularist or communal frame of reference.

In summary, however, the overriding security constraints have not led to the sacrifices of civil liberties that has occurred in other democratic states during wartime or periods of protracted conflict:

1. Emergency powers have not challenged the normal functioning of government. The Knesset has operated undisturbed and has the formal power to change emergency measures as it sees fit (though the exercise of this right may depend on coalition politics); courts continue to function, and to review (within limits) the use of such powers. There is no general suspension of rights, even in wartime.
2. In practice, the use of emergency powers has fallen far short of what could be done, legally, under existing grants of authority. Many of the broad powers available have not been utilized, and others have been moderated in usage by self-imposed administrative guidelines. This reverses the common pattern among many nondemocratic governments, which stretch their emergency authority in various ways; while the law in such cases is better than the practice, in Israel the practice is better than the law.
3. Over time, there has been a trend to greater regularity in the use of emergency powers and greater reliance on legal and judicial procedures governing them. The role of judicial review, for example, has been expanded. In recent years there has been less automatic deference to security claims than in the early years of statehood.

In conclusion, the balance between the demands of security and the ideals of law and liberty is at least as problematic in Israel as in any other democratic state. Given the circumstances, Israel may even represent the extreme test case of such balancing. In the event, there are good arguments for criticizing the weight assigned to emergency powers and for wishing the balance moved somewhat in the opposite direction. But it is important to bear in mind that an act of balancing is taking place.

The picture up to the Six-Day War, therefore, was one of unusual continuity, despite (or because of) the extreme pressure under which the government operated. Israel had one of the few regimes—practically the only one in the region—that could claim such stability in leadership and policy over such a long period. But appearances were deceptive. Underneath the surface were forces for change that would eventually shatter the hold of the Labor Zionist establishment and call into question Israel’s commitment to the civic, liberal, universalist conception of state-building.