Expanding the Authority of the Israel Security Agency
Photo by ACRI
On July 20, 2021, ACRI petitioned the High Court of Justice requesting the annulment of the government decisions that illegally expanded the roles of the Israel Security Agency (ISA, also known as the General Security Services, Shin Bet, and the Shabak) from six to ten. The petition presented data received by ACRI in response to a freedom of information request, according to which as of 2004, the government had authorized the ISA to perform four additional functions beyond the six presented in the General Security Services Law. This was achieved through government decisions approved by the Subcommittee for Intelligence and Secret Services, and not by amending the General Security Services Law. The expansion of authority was conducted covertly, unpublished, and out of the public eye. The petition claims that expansion of ISA authority carried out in the dark for obscure positions, threatens democracy and human rights, in violation of the law.
In expanding the ISA's authority, the government relied on a section of the General Security Services Law (Section 7(b)(6)), which permits it to authorize the ISA to perform additional functions. The last function assigned to the ISA by way of a basket clause, involved contact tracing of individuals who contracted COVID-19, and those with whom they came into contact. This decision was discussed in a ruling on the petition we filed. In April of 2020, it was ruled that the clause solely permits the government to authorize additional ISA roles in the face of circumstances that pose unforeseeable and immediate danger, for limited periods of time. The High Court of Justice then instructed the government that it may solely continue to authorize the ISA for contact tracing through a full legislative procedure, and may not do so on the basis of a government decision.
In the petition we claimed that section 7(b)(6) intends to grant the government relative operational flexibility to receive ISA aid in contending with unexpected threats for limited periods of time, yet it may not serve as a mechanism for permanently expanding the ISA’s role. We posited that permanent expansion of ISA functions requires explicit legal authorization, especially in light of the fact that it involves grave human rights violations, as each new function permits the exercise of power in fields where that wasn’t previously the case (authority such as wiretapping, online surveillance, investigations, etc.). We further claimed that the permanent expansion of ISA authority is a preliminary arrangement that requires legislation, and that its execution through a government decision violates the principle of separation of powers. We also argued that there’s a grave flaw in the mechanism that allows ISA authority to be permanently expanded in the dark, without public knowledge, and even in excluding the majority of Knesset members. Transparency regarding the bounds of ISA activity and its authority is essential. Last, we asserted that even if the government mistakenly believed that it had the authority to permanently expand ISA functions via the section, the discretion exercised in choosing an administrative authorization track is extremely unreasonable, and that it should have acted to amend the law.
On October 19, 2022, a hearing was held on the petition, following which the High Court of Justice issued a conditional order instructing the state to justify why it would not restrict use of section 7(b)(6), such that it may only be invoked in urgent circumstances.