Can an ex-se­nior IDF lawyer trans­form ad­min­is­tra­tive de­ten­tion?

Liron Lib­man: Even a bit more jus­tice than now is bet­ter

The Jerusalem Post - The Jerusalem Post Magazine - - CONTENTS - • By YONAH JEREMY BOB

It was pitch black and late in the night around 2003-4 at the IDF ad­min­is­tra­tive de­ten­tion court hosted at Ket­ziot Prison, lo­cated in a bar­ren por­tion of the Negev around 70 kilo­me­ters south­west of Beer­sheba. No­body wanted to be at the hear­ing and every­one wanted it to end fast with­out a care­ful anal­y­sis. Then-IDF judge Liron Lib­man was the only one who seemed to be tak­ing the ev­i­dence and the hear­ing se­ri­ously. The Shin Bet (Is­rael Se­cu­rity Agency) and IDF pros­e­cu­tion viewed the case as a no-brainer – the Pales­tinian ter­ror­ist needed to be kept in ad­min­is­tra­tive de­ten­tion to save lives.

The Pales­tinian viewed the process as a kan­ga­roo court in which he had no chance to be freed, so he just wanted to go back to sleep.

Lib­man ex­plains that the hear­ing oc­curred shortly af­ter IDF judges were fi­nally start­ing to get the full clas­si­fied in­tel­li­gence pic­ture for ad­min­is­tra­tive de­ten­tion cases even as the Pales­tinian de­tainees and their lawyers still do not.

Mild-man­nered but firm, Lib­man says that deal­ing with such clas­si­fied ev­i­dence in a one-sided process “is not easy; for the judge to do every­thing alone is not sim­ple.” Though main­tain­ing that he tried to be fair and bal­anced in ad­min­is­tra­tive de­ten­tion hear­ings as an IDF judge, he says that the one-sid­ed­ness of the process al­ways made him un­easy. “The DNA of our le­gal sys­tem is ad­ver­sar­ial sys­tem-style DNA.”

Ad­min­is­tra­tive de­ten­tion hear­ings are ju­di­cial pro­ceed­ings, but the courts can or­der a per­son’s ex­tended de­ten­tion with­out that per­son view­ing all of the clas­si­fied ev­i­dence against them. Crit­ics say such pro­ceed­ings are kan­ga­roo courts, whereas Is­rael says keep­ing ev­i­dence clas­si­fied is crit­i­cal to pro­tect­ing in­tel­li­gence sources and say that judges still must rule on de­tainees’ be­half if the ev­i­dence is in their fa­vor.

Lib­man would go on to be­come the IDF in­ter­na­tional law di­vi­sion head and the IDF chief pros­e­cu­tor, with the high rank of colonel. In that ca­pac­ity, he was re­spon­si­ble for over­see­ing the IDF’s work with the Shin Bet to ob­tain as many ad­min­is­tra­tive de­ten­tion or­ders as needed to main­tain se­cu­rity. All of this makes him a some­what sur­pris­ing but also uniquely po­si­tioned ad­vo­cate for re­form­ing and open­ing up ad­min­is­tra­tive de­ten­tion pro­ceed­ings in his new­est ca­pac­ity as a fel­low at the Is­rael Democ­racy In­sti­tute.

In this push, Lib­man has pow­er­ful al­lies in the form of cur­rent IDF West Bank Courts Chief Jus­tice Col. Ne­tanel Ben­ishu, who wrote a jour­nal ar­ti­cle strongly sup­port­ing the re­form, and in a more pas­sive way, for­mer Supreme Court jus­tice and at­tor­ney-gen­eral Elyakim Ru­bin­stein. Ben­ishu also writes that four out of five Supreme Court jus­tices queried about the is­sue in the past said they sup­ported the idea.

THIS IS not the first time the re­form has been dis­cussed. An­other for­mer IDF se­nior pros­e­cu­tor and cur­rent IDI se­nior fel­low, Prof. Mordechai Krem­nitzer, sup­ported the idea at a Knes­set hear­ing a few years ago. But now, for the first time ever, the re­form also has more sup­port on both the Left and Right ends of the po­lit­i­cal spec­trum, even if still on the mar­gins. There have al­ways been harder-Left politi­cians who wanted to re­form or even do away with ad­min­is­tra­tive de­ten­tion.

But af­ter ad­min­is­tra­tive de­ten­tion was used in 2015 against a group of ex­trem­ist set­tlers af­ter the ter­ror­ist at­tack on a Pales­tinian fam­ily in Duma, Bayit Ye­hudi MK Beza­lel Smotrich

started to sup­port re­form along with more cen­trist Likud MK and for­mer Shin Bet di­rec­tor Avi Dichter.

Lib­man iden­ti­fies two main prob­lems with the prac­tice of ad­min­is­tra­tive de­ten­tion. One is that it is “based on fu­ture con­sid­er­a­tions – not what you did, but what we think you will do. This is a prob­lem from the per­spec­tive of do­ing jus­tice: to harm a per­son [by de­tain­ing them] based on what they will do. This can be spec­u­la­tion. Some­times you catch peo­ple and after­wards learn” you caught the wrong per­son.

Sec­ond, he re­turns to the use of clas­si­fied ev­i­dence. This refers to the fact that “the in­tel­li­gence ev­i­dence on which [ad­min­is­tra­tive de­ten­tion is based] is not re­vealed to the de­fense.” This seems to “go against the idea of a fair hear­ing. The de­tainee and the de­fense only get a gen­eral para­phrase” of the in­tel­li­gence ev­i­dence that is the ba­sis for the de­ten­tion.

WHAT RE­FORMS is he push­ing for?

Es­sen­tially, he hopes to ad­dress the sec­ond is­sue and to make the process and ev­i­dence more open. But how is this pos­si­ble when the rea­son that Is­rael does not al­low de­fense lawyers and de­tainees to see the in­tel­li­gence ev­i­dence against them is usu­ally to pro­tect its in­tel­li­gence sources? Lib­man’s an­swer is to ap­point a spe­cial de­fense coun­sel, likely with a mil­i­tary ju­di­cial or other high-rank­ing ju­di­cial back­ground, who will be cleared to view all clas­si­fied ma­te­ri­als and act as an in­ter­me­di­ary ar­gu­ing for the de­tainee based on all of the ev­i­dence.

In this case, Is­rael could still avoid giv­ing the clas­si­fied in­tel­li­gence ev­i­dence to the de­tainee and the de­tainee’s per­sonal lawyer – per­sons whom it might not nec­es­sar­ily trust with the in­for­ma­tion. But at the same time, the spe­cial de­fense coun­sel could meet with the de­tainee to learn from him what kinds of le­gal is­sues he might be able to raise once he gets to view the clas­si­fied ev­i­dence.

Lib­man ex­plains that in some places where such a spe­cial de­fense coun­sel ex­ists, such as Eng­land and Canada, once the coun­sel “is given the clas­si­fied ma­te­rial, he can­not be in touch with the de­tainee any­more.” This is the flip side about what makes this coun­sel “spe­cial.” On one hand, the coun­sel can make ar­gu­ments on be­half of the de­tainee that the per­sonal lawyer can­not. On the other hand, the spe­cial de­fense coun­sel can never act as the de­tainee’s per­sonal lawyer, as a per­sonal lawyer “can­not limit his client’s ac­cess to in­for­ma­tion” in his pos­ses­sion.

The for­mer chief IDF pros­e­cu­tor pointed out that in Eng­land, the coun­sel can “send writ­ten ques­tions to the de­tainee, which en­sures that he will not re­veal any clas­si­fied in­for­ma­tion” as the ques­tions can be re­viewed by the rel­e­vant se­cu­rity au­thor­i­ties.

More specif­i­cally, Lib­man de­scribes mul­ti­ple pluses for the de­fense from the cre­ation of a spe­cial de­fense coun­sel. The coun­sel can not only make ar­gu­ments that the per­sonal lawyer can­not make based on view­ing the full clas­si­fied in­tel­li­gence, he can also press the court to de­clas­sify more of the off-lim­its ev­i­dence. As­pects of the coun­sel’s ar­gu­ments then would be made in the pres­ence of the de­tainee and his per­sonal lawyer, while as­pects would be solely with the court and the pros­e­cu­tor present.

What about the first prob­lem Lib­man listed with ad­min­is­tra­tive de­ten­tion, in terms of de­tain­ing a per­son for some­thing they have not yet done? Lib­man says Is­rael must live with this dilemma and that there is no ob­vi­ous fix.

“Ad­min­is­tra­tive de­ten­tion is un­avoid­able in Is­rael. I have seen the in­tel­li­gence ma­te­rial in dozens of cases. I did not see a sin­gle case that was ridicu­lous. Even if you could say that some cases could have got­ten fewer months of de­ten­tion or could have been ad­dressed in some way be­sides ad­min­is­tra­tive de­ten­tion, there were no cases that did not have grounds.”

He cites sta­tis­tics prov­ing that the vol­ume of ad­min­is­tra­tive de­ten­tions can be di­rectly cor­re­lated to how hot the se­cu­rity sit­u­a­tion gets to prove that Is­rael does not abuse the prac­tice. He states that dur­ing the Sec­ond In­tifada, de­ten­tions went over 1,000. Dur­ing mid-level spikes in vi­o­lence, there are of­ten around 500. When things cool off, the num­bers of­ten drop to around 200. The Jerusalem Post sep­a­rately con­firmed that dur­ing the height of the Oslo process in the 1990s, the num­ber of ad­min­is­tra­tive de­ten­tions dropped to sin­gle dig­its.

“But it is very prob­lem­atic, so we should still try to limit and re­duce the prob­lems,” such as by us­ing a spe­cial coun­sel to make the ev­i­den­tiary process less se­cre­tive, he says.

WITH SUCH sub­stan­tial back­ers from the sys­tem it­self and some from the Right and the Left in pol­i­tics, is the re­form/com­pro­mise of sorts mov­ing for­ward? All signs to date are that de­spite the re­form’s strong sup­port­ers, it is cur­rently stuck, with op­po­si­tion mostly from the Shin Bet and from some within the Jus­tice Min­istry, while oth­ers in the min­istry sup­port the change. Lib­man has met “with the rel­e­vant of­fi­cials” and sug­gested to them as a for­mer chief IDF pros­e­cu­tor that more cases can be han­dled by crim­i­nal in­dict­ments, but ac­knowl­edges there is op­po­si­tion.

The Shin Bet de­clined to re­spond, other than to in­di­cate that it has pro­vided its po­si­tion to the gov­ern­ment of­fi­cials han­dling the is­sue. But the Post has learned that there are con­cerns that a spe­cial de­fense coun­sel would lead to fewer de­ten­tions even when nec­es­sary – cre­at­ing more dan­ger to civil­ian lives – and that there would also be some en­hanced risk of in­tel­li­gence sources be­ing ex­posed.

Re­spond­ing to the op­po­si­tion, Lib­man sug­gests that doubts could be ad­dressed by start­ing with a pi­lot pro­gram in se­lect cases with Pales­tini­ans in the IDF West Bank courts to see how it works in prac­tice. He says that legally and pro­ce­du­rally, the IDF can move for­ward with a pi­lot pro­gram in a more stream­lined fash­ion than the civil­ian sys­tem. Be­yond that, he said that the whole point of the spe­cial de­fense coun­sel be­ing re­quired to be some­one with top-se­cret se­cu­rity clear­ance and likely a for­mer IDF judge is that they are ex­tremely trust­wor­thy and leak-proof. Also, he says that the coun­sel would only be able to view clas­si­fied in­tel­li­gence “in spe­cific se­cure ar­eas. It can­not be taken just any­where.”

Re­gard­ing the con­cern of ac­ci­den­tal reve­la­tions be­tween the coun­sel and the de­tainee, Lib­man points out that once the coun­sel has viewed the clas­si­fied in­for­ma­tion, he no longer can be in con­tact with the de­tainee.

An­other prob­lem the re­form has is that just as there is some sup­port for it from the Right and the Left, there is also bi­par­ti­san op­po­si­tion. Iron­i­cally, many Pales­tini­ans and their de­fense lawyers op­pose the re­form as stri­dently as the Shin Bet, though for very dif­fer­ent rea­sons.

Top de­fense lawyer for Pales­tini­ans Gaby Lasky and oth­ers op­pose the re­form be­cause they are only in­ter­ested in elim­i­nat­ing ad­min­is­tra­tive de­ten­tion en­tirely. In their view, any mid­dle-of-the-road “re­form” will only serve as a fig leaf which could con­fuse global crit­ics and help white­wash what would still be an il­le­gal prac­tice. Also, each lim­i­ta­tion on the coun­sel that Lib­man praises as safe-guard­ing leaks, Lasky and oth­ers view as turn­ing the coun­sel into just an­other agent of the “oc­cu­pa­tion” un­der the guise of help­ing Pales­tini­ans.

Lib­man re­sponds to this crit­i­cism say­ing, “ad­min­is­tra­tive de­ten­tion is le­git­i­mate in the bel­liger­ent-oc­cu­pa­tion le­gal con­text from an in­ter­na­tional law per­spec­tive.”

“Even if peo­ple are against ad­min­is­tra­tive de­ten­tion, I do not like it when peo­ple say re­forms are only be­ing done to white­wash things and look bet­ter. It re­minds me of [Soviet leader Vladimir] Lenin, who said that you need to be worse to be bet­ter. I do not be­lieve this. I am a prag­matic per­son. If you can get a bit more jus­tice than there was un­til now, then that is bet­ter,” he says stri­dently.

Lib­man’s an­swer is to ap­point a spe­cial de­fense coun­sel, likely with a mil­i­tary ju­di­cial or other high-rank­ing ju­di­cial back­ground, who will be cleared to view all clas­si­fied ma­te­ri­als and act as an in­ter­me­di­ary ar­gu­ing for the de­tainee based on all of the ev­i­dence.

HOW DID Lib­man cross over from be­ing a chief IDF pros­e­cu­tor who pushed for ad­min­is­tra­tive de­ten­tion to push­ing for re­form­ing the prac­tice? For one thing, he has been out of the sys­tem now for six years.

“When you are in dif­fer­ent places, you see things from dif­fer­ent per­spec­tives. The more dif­fer­ent an­gles you have had, the more things you see. You do not for­get, but you get a deeper and more bal­anced pic­ture. You can com­bine look­ing at things from afar to be­ing up close and to see­ing more gray and you have more ques­tions,” says Lib­man. “Even when I was in the sys­tem, I al­ways had ques­tions and never as­sumed every­thing was al­right. I al­ways thought about how we could do bet­ter.”

Lib­man also ex­plains that do­ing the right thing, not just con­vict­ing and de­tain­ing peo­ple at all costs, goes deep with him, re­call­ing a re­mark­able case from the 2005-8 pe­riod when he was the chief IDF pros­e­cu­tor.

He re­counts, “The Shin Bet got new in­for­ma­tion show­ing that a Pales­tinian whom it had helped con­vict was in­no­cent. By its own ini­tia­tive, it re­quested we [the IDF pros­e­cu­tion] seek a re­trial” in or­der to over­turn the con­vic­tion and free the Pales­tinian.

Re­call­ing this story “helps me re­ally think about peo­ple and it shows that the Shin Bet also cares about le­gal jus­tice” and not just pre­vent­ing ter­ror­ist attacks.

“I do not know if some­one had not cared, if we said he is just a Pales­tinian” he would have been freed. “The sys­tem does not need to be viewed as all bad. We said we needed to do some­thing. If there are cases like this, then there is hope.”

Lib­man’s ad­min­is­tra­tive de­ten­tion re­form is still very much up in the air, but it does not ap­pear that he will give up hope on it eas­ily.

(Marc Is­rael Sellem)

EX-SE­NIOR IDF lawyer Liron Lib­man has iden­ti­fied two main prob­lems with the prac­tice of ad­min­is­tra­tive de­ten­tion and hopes to make sev­eral re­forms.

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