Even Secret Security Organizations Can’t Take Human Rights Away
Over ACRI’s 50 years of operations, we have not shied away from keeping a close eye on one of the most powerful bodies in the country – the Israel Security Agency (ISA, also known as the General Security Services, Shin Bet, and the Shabak). The ISA was granted powerful tools to prevent harm to state security, tools that were not given to the police or any other body: wiretapping without a warrant, covert searches, unlimited access to communications databases in the country, and more. The tools, sweeping authority, and secrecy under which it operates, enable grave human rights violations.
Over the years we have co-submitted petitions against wrongful convictions regarding ISA investigations; one of our petitions led to a reduction in the instances in which activists were summoned for "cautionary conversations," and amid the COVID-19 pandemic in Israel, we worked to cease ISA involvement in contact tracing. Over the past two weeks, two more hearings were conducted on important petitions concerning the ISA’s authority and the tools at its disposal.
Last week, the High Court of Justice held a hearing on our petition against a section of the 2002 General Security Service Law, which permits the government to establish additional ISA functions through a covert government decision – rather than by amending the General Security Service Law, wherein its functions and powers were determined. To try and explain the issue, I raised the following example during the hearing:
Say there’s been an exceptional escalation in the scope and severity of crime in Israel over the course of several months. The number of victims is increasing, the public perceives the police as helpless, and public opinion places enormous pressure on the government to use all the tools at its disposal against crime. The Prime Minister decides to delegate the ISA to aid the police in the fight against crime, through using the powerful tools at its disposal against citizens suspected of committing crimes.
It’s quite clear that such a decision has enormous implications on human rights. May such a sensitive and dramatic expansion of the ISA’s role be covertly conducted, not only concealed from the public, but also from most Knesset members? Neither published anywhere, nor discussed democratically among the public, without even subjecting the decision to judicial review? The section of the law against which we petitioned allows for precisely that.
We are of the opinion that this situation is unacceptable. If there’s no choice but to make decisions that involve grave violations of human rights, they must be resolved through a democratic process in the Knesset, and not through decisions made in the dark. The court agreed that this was a question worth discussing, and issued a conditional order shortly after the hearing, asking the government to explain why it won’t restrict use of this authority to urgent cases alone, in which the law may not be amended due to operational necessity.
This week, we returned to the High Court of Justice for a hearing on another petition of ours regarding the ISA, which addresses the terrifying communications database in the organization's possession. The database is made up of a comprehensive and ongoing collection of communications data on all citizens, and the search was executed covertly without oversight or a judicial order.
Communications data is information that the ISA receives from cell phone companies, for example, and thanks to technological advancements, this data may reveal more sensitive personal information than ever before, such as each place we’ve visited and every person with whom we’ve spoken. This surveillance program was solely exposed amid the coronavirus crisis in Israel, following the government decision to use it for contact tracing of individuals who contracted the virus, and those with whom they came into contact.
Since the pandemic, we have learned that the surveillance program was approved through a faulty extreme procedure, in relation to other democracies, which lacks basic mechanisms capable of preventing misuse of information. As a result of our petition, an important achievement has already been reached – the government announced that it intends to submit a legal memorandum ahead of a broad amendment to the General Security Service Law – the first amendment to the law in over 20 years – which will also address the communications database. The government pledged that the memorandum would be distributed among the public, that part of the criticism we raised would be addressed in the legal amendment, and that the legislative process be made public.
Elections will be held next week. Regardless of the results, we at ACRI are committed to continuing to fight for human rights and democratic values in the face of the new government and Knesset.
I invite you to join us today and help us face the challenges that await us.
Attorney Gil Gan-Mor,
Civil and Social Rights Unit Director