5. The Filter of Security

The drift away from the civic model, analyzed in the previous chapter, also threatened to erode civilian control over the military. The potential for such a development existed in the system: just as the “interpenetration” of army and society involved civilianization of military life, it also opened the door to military influence on political decisions. The end of Labor dominance, in 1977, opened the door further. The loss of consensus and the polarization of opinions gave top commanders greater room to maneuver; the political orientation of the chief of staff acquired an importance it had not previously had. In addition, the big jump in defense budgets after the 1973 war also increased the importance of the military establishment and enlarged the infrastructure from which it drew support (Israel now had a “military-industrial complex” worth mentioning on an international scale).^[1]

To many it appeared that this threat materialized in the 1980s. In his second government, formed in August 1981, Menachem Begin appointed Ariel Sharon, a reserve army general, as minister of defense. Though Sharon was not the first former military commander to serve in this civilian post—he was preceded by Moshe Dayan and Ezer Weizman—his appointment provoked apprehension because of the widespread perception that he had little regard for legal and political constraints (unconfirmed reports claimed that Begin himself worried aloud that Sharon’s first act would be to surround the Knesset with tanks).^[2] In carrying out the invasion of Lebanon in 1982, Sharon went far beyond the official aim of expelling Palestine Liberation Organization (PLO) forces from southern Lebanon, in effect carrying out his own undeclared agenda of driving both the PLO and Syria out of Lebanon entirely, overseeing the emergence of a Lebanese government friendly to Israel, and creating a situation in which Palestinians would have to pursue their political aspirations in Jordan rather than the West Bank.^[3]

In order to pursue this design, Sharon misled the Israeli cabinet at various stages of the campaign, which eventually brought him into direct conflict with Begin. Ultimately the design failed of its own impracticality, but only the massacre of Palestinian civilians at Sabra and Shatila by Lebanese Christian forces, leading to the government inquiry under the Kahan Commission, brought about Sharon’s resignation as minister of defense.^[4] It might be pointed out, however, that some of the stiffest opposition to Sharon’s moves came from within the army itself, where dovish military commanders spoke up both within and outside of channels—indicating that the close intertwining of civilian and military can work in both directions.

Ironically, the state founded to solve the perennial problem of Jewish security has itself been plagued by constant insecurity. Israelis cite security—“the refuge and protection which Israel gives each Jew”—more often than any other reason as a basis for Jewish rights in Israel.^[5] As insecure as life in Israel might appear, its role as a means for Jews to provide for their own security, rather than being subject to what the fates decreed, was basic to Zionism’s very purpose.

But viewed coldly and objectively, the realities of the threat to Israel’s existence were overwhelming. The State of Israel was closed off by a wall of hostile Arab states committed to reversing the results of the 1948 war. Until 1967 the bulk of the population was within artillery range of hostile armies, and through the 1991 Persian Gulf War the Israeli public was never more than about five years from either the last conflict or the next one. The six neighboring Arab states enjoyed a population advantage over Israel that varied between 50 to 1 and 20 to 1. Egypt, Syria, Jordan, and Iraq together still have an advantage of about 8 to 1 in regular armed forces, 5 to 1 with all reserves mobilized, and 3 to 1 in major battle tanks and in combat aircraft.^[6] Israel also faced a number of active terrorist organizations whose international support and sources of finance were without precedent. In addition, international isolation left the country increasingly dependent on a single major power for both vital military equipment and economic viability.

The economic pressures were enormous. Not only did Israel bear a crushing defense burden by any standard, but in the first years of statehood it also faced economic warfare (the Arab boycott) and a massive influx of new immigrants. In the first three and a half years under independence the population doubled, and by the end of the first decade it had tripled. In the 1970s defense spending as a proportion of GDP (gross domestic product) hovered in the 20 to 30 percent range, against the 3 to 6 percent common in Western countries or the peak figure of 12 to 17 percent in the former Soviet Union. But with the highest per capita national debt in the world, debt service topped even defense in the national budget, leading to an almost unbelievable level of total government spending: 60 to 80 percent of the GDP, depending on how it is measured.

Nor could Israel rely on international support to redress this imbalance. The circumstances that led to a convergence of U.S. and Soviet support for Israeli statehood in 1948 changed, and from the early 1950s the Soviet Union was increasingly the ally and armorer of Israel’s enemies. Most Western countries would not sell arms to Israel, though many sold arms to Arab states. The international climate became yet more hostile with the rise of the Third World, which tended to regard Israel as part of the colonial West and the Palestinian Arabs as victims of Western imperialism.

Consequently security considerations became the central constraint of Israeli politics, the filter through which all other issues and debates were forced to pass.^[7]

The Diktat of Defense

Analysts sometimes define Israel’s security as its ability to defeat any likely coalition of belligerents in all-out war. This would be difficult enough to guarantee under all circumstances. But Israelis, with their personal experiences as refugees, tend to interpret security more broadly as freedom from threat to their personal safety and the ability to live without fear of politically motivated violence. This is an infinitely more difficult level of security for any government to guarantee its citizens when daily existence is threatened by violence short of war: artillery bombardments, armed incursions, street violence, random terrorism, long-range missile strikes on civilian centers. We must distinguish between basic security (war-fighting capability) and current or personal security (control of lesser threats), and no account of the impact of security concerns on Israeli life can afford to focus exclusively on the former. In a 1993 survey, 85 percent of Israelis expressed fear of being attacked by an Arab during their daily activities.^[8]

Security cannot be measured simply by the objective threats that a nation faces. In the end, it is a matter of a subjective feeling of safety in the minds of individuals, which is more difficult to achieve among a Jewish generation that passed through successive waves of twentieth-century antisemitism culminating in the Holocaust. The Jewish worldview is in any event the product of twenty centuries of religious and ethnic persecution; no minority in history has been so unremittingly conditioned to regard the world as an essentially vicious place. The Holocaust was merely the latest and most brutal chapter in a long history. Nevertheless, Jews throughout the world were stunned by the world’s lack of response to Nazi genocide. They noted the lack of any international effort to save Jewish lives in Europe and the general closing of doors to would-be refugees. Even after the war, the Palestinian Jewish community, most of whom lost family and friends in the Holocaust, were not allowed to receive the survivors. In the words of a leading Israeli literary figure, the Holocaust left a “latent hysteria” in Israeli life.^[9]

A mood of despair and outrage, born of the Mandate experience and the Holocaust, intensified during the period of the Israeli War of Independence. Though the United Nations recommended establishment of a Jewish and an Arab state in Palestine, no effort was made to enforce this decision against Arab opposition. The Jewish community was left to face the regular armies of five Arab states, some of them armed by Western states while Israel contended with a general arms embargo (broken only, to some extent, by Soviet-bloc countries). Despite the widespread perception that another Holocaust was in the making, the world seemed as indifferent or as passive as it had the first time.

This sense of isolation in a hostile world was further strengthened by the events of 1956–1957 and 1967. In the first case, Israel faced universal condemnation for what most Israelis regarded as a necessary act of selfdefense to stop attacks along the Egyptian border and to end an illegal blocking of access to Israel’s southern port, Eilat. Israel was then forced to withdraw from Sinai in return for international assurances of free passage to Eilat that turned out to be valueless when tested ten years later. When these guarantees collapsed, in 1967, Israel again stood alone. Once more, as Israelis saw it, only the strength of their own armed forces prevented national destruction.

In some ways the constraints of security favored universalistic and civic ideas, and in other ways they reinforced particularistic and traditional leanings. In either case, security concerns meant greater pressure on democracy, encouraging either greater centralization of authority or greater clannishness in dealing with the outside.

The centrality of foreign affairs and defense ought to promote mamlachtiut (civic-mindedness), since the need for national unity under crisis conditions was obvious. Some maintain that it is only the external threat that has held Israel together. The army and the foreign service operated basically outside the “bargaining” framework and could be built along rational civic and statist lines. In foreign policy, there was little bargaining over a compromise policy; one approach was dominant before 1977 and from 1992 to 1996, and another has been dominant whenever the Likud was in a position to set or veto policy.

The need for unity translated into a strong tendency to defer to the existing leadership, despite the strong Jewish tradition of skepticism toward authority. The question then became: is there too much deference to authority? Whatever happened to the traditional Jewish opposition to the concentration of power? The truth is that obsession with security actually meshes very well with proclivities rooted in the Jewish past. The threat of danger from the outside was to a great extent what made consensus and voluntarism work in the kahal and in the yishuv. Increased threat usually forced Jews to bond more closely together, with tradition as the glue that held them together and ensured their survival. Finding themselves surrounded by enemies who swore to destroy them did not strike Israelis as a novel occurrence calling for new departures; to the contrary, it evoked a long collective memory of similar threats (or threats seen as similar) of which this was merely the latest instance. Four of the major holidays on the Jewish calendar (Passover, Purim, Hanukkah, and Tishah b’Av) commemorate a threat to Jewish existence in one form or another. The main difference this time was that Jews were organized to fight back.

Wars with Arab states were not seen as events in international politics rooted in a territorial dispute, but as acts of primordial hostility that evoked images of the Holocaust and other historical attempts simply to kill Jews. Acts of terror against Israeli civilians were seen not as political actions designed (however brutally) to achieve Palestinian national aims but as plain and simple acts of antisemitism. A deep sense of “familism” has always pervaded the Israeli reaction to these events; the death of a single Israeli “on a national background” (that is, by an Arab, for political reasons) is seen by most Israelis as an attack on a family member and as a personal threat, evoking a degree of horror and rage far beyond that triggered by an ordinary “nonpolitical” murder. Finally, traditional Jewish politics included a tendency to secrecy and closure to the outside, and a problematic approach to non-Jewish minorities. The first of these will be examined in the following section, and the second in chapter 9.

The consensus was that Arab threats should be taken seriously—that they were not just words—and that the security of Israel was always in jeopardy, since a single defeat would mean national destruction.^[10] Demonstrations of Arab moderation were regarded with suspicion, as they were likely to be tactical maneuvers rather than abandonment of the basic design of destroying Israel. This primordial “us–them” view of this conflict clings to the assumption of unyielding hostility as an explanation that makes sense of a threatening world and reinforces the Jewish self-image as the perpetual victim of unreasoning hatred, rather than simply as the party to a conflict.

In this view there was no choice but self-reliance. International support or guarantees could not be trusted as a reliable basis for national security. The only reliable outside allies were the Jewish communities of the world. Apart from other forms of support, the Jewish Diaspora was also important as a source of immigration, the raison d’etre of the state. Israel was concerned with the well-being of Jewish communities elsewhere, and its relations with other nations have often been affected by the interests of local Jewish communities.

Given perceived vulnerability and self-reliance, Israelis adopted an active defense. They stressed the need to anticipate, to seize the initiative, and to take the war to the other’s territory. The preemptive attacks of 1956 and 1967 are cases in point. In terms of concrete defense doctrines, this was expressed in the focus on mobility, forward deployment, and threats of punitive counterblows that in some ways resembled strategies of nuclear deterrence.^[11] But if Israel tended to active defense on a military level, it showed an aversion to risk taking in politics or diplomacy. Israeli diplomacy tended to be reactive, responding to events and shunning bold initiatives. There was a distinct distaste for diplomatic methods in general, given the meager resources that Israel possessed for playing the diplomatic game and natural suspicion of a process in which Jews had little experience and for which history had not taught them to have high regard.^[12]

Another element in the consensus was a pro-Western orientation. There were, in the beginning, neutralist tendencies in the Israeli leadership, given their East European ties, socialist sympathies, and hopes of continuing support from both sides of the Cold War. But the behavior of the Soviet Union from the early 1950s, toward Jews within its borders and Zionism generally, soon led to a revision of this attitude. Even before the Soviet Union adopted a pro-Arab stance and moved to arm Israel’s enemies, it had for ideological reasons tried to discredit the idea of Israel as a homeland for all Jews, especially Soviet Jews. In the Soviet version of socialism there was little room for recognition of Jewish nationality.

Israel thus found itself pushed into closer cooperation with those who opposed the Soviets. This was reinforced by a natural affinity of values with democratic Western countries, as well as the importance of Jewish communities in the West and especially in the United States. Economic realities also played a role, as the Israeli economy quickly developed close linkages with the West. Pro-Soviet views, which had once been frequently heard in Labor Zionist circles (especially in Mapam), practically disappeared from Israeli public debate within a decade.

On specific issues, there was a consensus that Arab refugees from the 1948 war should be dealt with only in the framework of final peace treaties with the Arab states, and that most of them would have to be resettled in Arab countries, as Jewish refugees from Arab countries had been resettled in Israel. There was also general acceptance of the 1949 armistice lines as a basis for final borders; those who still sought the whole of Palestine were stymied by the seeming impossibility of the goal. By 1965 even Herut, in adopting a common electoral platform with the Liberals, had dropped specific territorial claims beyond the existing lines. The dominant view was that the key to an Israeli-Arab peace was negotiation with Jordan, which by annexing the West Bank held most of what was to have been the Arab state in Palestine. In fact, negotiations with Jordan’s King Abdallah were carried out immediately after the 1948 war and ended only when the king was assassinated in 1951.

Events seemed to support the traditional Labor attitude that a compact but clearly Jewish state in part of Palestine was preferable to the assertion of sovereignty over all of Palestine, which would always have a large Arab population even if Jews did come to constitute a majority. In the 1950s and 1960s Ben-Gurion was the key representative of this “low territorial profile” that combined minimal rule over Arabs with an active defense.^[13] The molding of a consensus was furthered by Ben-Gurion’s strong personality and by the fact that many Israelis, especially new immigrants, tended to identify him with the state itself because of his historic role in Israel’s founding.

The tension between security demands and democracy was greatest precisely at those points where democracy was weakest in tradition. The dictates of security fit in only too well with the passion for secrecy and the lack of provision for the collective rights of non-Jewish minorities. There were other manifestations of security mania that may be linked to the past. The penchant for activism can be seen as overcompensation for the passivity and weakness of the past, leading to such heady gestures as the challenging of Soviet anti-aircraft crews, and even Soviet pilots, during the 1969–1970 war of attrition on the Suez Canal. Many observers noted a “cult of toughness” among Israeli youth, symbolized by popular figures such as Meir Har-Tsion, a soldier whose exploits became legendary.^[14]

None of this is very surprising; mobilization against external threats is generally thought to be inimical to democracy. In 1941 the noted social scientist Harold Lasswell projected as “probable” a state of the future in which the specialists in violence would dominate and in which the entire population would be mobilized on behalf of the national military effort. This “garrison state,” as he later elaborated, would be characterized by constant increases in defense spending, the expansion and centralization of government, the withholding of information, the weakening of political parties and the legislature, loss of civil liberties, and the decline of courts as limits on the government.^[15] Such a course of development seemed quite possible in the Israel of the 1950s, and indeed some of these developments (such as higher defense spending and weaker political parties) came to pass. Yet overall Israel did not become a garrison state by Lasswell’s definition.

Why has Israel not behaved like a society under siege? Why hasn’t the army become the dominant institution in the country?

One answer to this question, often overlooked, is that a crisis that extends for half a century is no longer a crisis but a normal state of affairs. The high state of tension and the high degree of mobilization become routinized; it is impossible to keep an entire society forever living at the highest pitch of anxiety. Normality sets in; ordinary patterns of life develop even under the most unpropitious conditions. As will be seen, the “emergency regulations” under which Israelis live become less emergency-like, and more regularized and routinized, as time passes. A better image for the cycle of war and normality in Israel may be the concept of the “interrupted society” as developed by Baruch Kimmerling. Israelis pull together in time of genuine crisis (wartime), but revert to more disorderly and individualistic behavior when tensions are “merely” normal.^[16] This, also, is hardly a new pattern in Jewish life, but reflects in a general way the rhythm of intermittent threat and quiescence that characterized much of Diaspora life.

The absence of a strictly military tradition also helps account for Israel’s relatively nonpolitical army. There was no history of a military role in politics, and in fact it was the political leadership (in the yishuv) that invented the military. The fighting forces—Hagana and Etsel—began as extensions of civilian organizations. Ben-Gurion made sure of civilian supremacy before and after statehood, while moving to professionalize the military force being created. To keep the army out of politics, he took over its direction personally, serving as minister of defense as well as prime minister. Ultimate control of the military was vested in the cabinet, through the minister of defense, with the chief of staff (the highest-ranking military professional) appointed by the cabinet on the recommendation of the minister of defense. These arrangements were formalized in the Basic Law: Israel Defense Forces, adopted in 1976.

There are imperfections in civilian control as the system actually operates. Much depends on the minister of defense, who is the link between military professionals and the civilian government. So long as the minister is a strong representative of the cabinet, and at the same time holds the respect of the top military leadership, the structure can work as designed. But this is a highly personalized arrangement, like so much in Israeli politics. In essence, civilian control is not really institutionalized in a civilianized Ministry of Defense but rests on one person. There is no assurance that the cabinet will control the minister of defense, and any outside oversight (by the Knesset, for example) is usually weak and after the fact.

So long as Ben-Gurion held both positions, until 1963, his personal stature was a guarantee that military officers would not exceed their role. But when the two positions were divided, and when former military professionals became ministers of defense, the lines of authority became murky and an avenue for military influence on policymaking was opened up. This peaked in the Lebanese War in 1982, when Minister of Defense Ariel Sharon conducted his own policy rather than that of the cabinet and (as a former commander himself) also took over some of the operational responsibility in the field.

However, when military officers did cross the line into political matters, their views were not uniform but ran the same gamut as their civilian counterparts. In fact, much of the dovish opposition to the Lebanese War came from within the army itself, as did many of the more moderate views on dealing with the Palestinian intifada (uprising) that began in 1987. The universality of military service and the ad hoc way in which the military was built limit the development of a military ethos and careerism separate from the society at large. Nearly all Israeli males, and a high proportion of young women as well, pass through a required period of service. But the regular army remains relatively small; most of the forces mobilized in wartime are reservists drawn from all walks of life. The small core of career army officers is also rotated out for early retirement by the time they are in their forties, thus limiting the development of a senior class of professional officers who might gain institutional status in the Israeli bargaining network. Given the scale of the country, there is little “garrison life”—most soldiers go home on weekends and some even commute on a daily basis. The social democracy in the Israeli army—its informality, lack of attention to rank, and absence of spit and polish—has long been notorious.^[17]

Thus no separate military caste has developed in Israel; the army reflects the society, with a spectrum of views that differs very little (the slight difference in voting patterns seems to be a function of age rather than military service). Left-wing positions are as well represented in the army as elsewhere; many dovish political parties and movements have featured former top military commanders in their leadership. Left-wing kibbutzim have traditionally supplied officers and men for the most prestigious elite fighting units.^[18] Where army and society are so intertwined and interpenetrated, civilianization of the army is as apparent as militarization of society. The blurring of lines between the two works in both directions. The leading military sociologists in Israel summarize the situation in these words: “Although Israel has been immersed in a prolonged violent conflict, it does not behave like a society under siege. Its democratic government and routine civilian life are a far cry from the type of ‘siege mentality’ bred by living under a constant state of emergency. Israel has not turned into a garrison state, a modern Sparta ruled by specialists in violence whose entire way of life is subordinated to meeting the challenge of an external threat.” ^[19]

The problem is not an institutionalized army against civilians, then, but rather the way in which the constant preoccupation with defense has affected attributes of the whole society. Militarism can exist in a political culture even when civilian supremacy in the government is secured.^[20] In the Israeli case, army and society share the view that military considerations have priority and that the conflict should be interpreted predominantly in military terms; military values penetrate areas of life from economic planning to gender relations. With security as the dominant standard and a high priority assigned to defense in the allocation of resources, the impact is felt everywhere. Decisions on industrial policy, on the transportation infrastructure, on educational priorities—on almost any policy issue—are run through the security filter. The bigger question is whether this has caused an erosion of humanitarian values of Western liberalism or of traditional Judaism. How has democracy survived these pressures, and what has been their impact on the tension between modernism and tradition?

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.

Notes