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The Dangerous Loophole that Expands Shin Bet’s Powers in Secret

The new outbreak of COVID-19 in Israel and the fear of a fourth wave of the pandemic raise the possibility that the Shin Bet security service will once more be enlisted to use its surveillance capabilities and tools for the purpose of epidemiological investigations intended to track confirmed cases of the disease and violators of quarantine.

When the Shin Bet entered the coronavirus scene a year ago, under circumstances that are still controversial, and revealed its advanced capacities – originally supposed to be used in the struggle against terrorism, espionage and other subversive activities – the Israeli public was told that it was a necessary, exceptional, one-time measure.

Lately, however, it has emerged that the pandemic was not the first occasion that the government had resorted to using the security service’s know-how for civilian purposes, which are not directly related to security.

The Association for Civil Rights in Israel has discovered that for some 15 years the Shin Bet has been invoking a clause in the Shin Bet Law of 2002 for mysterious purposes, about which the public was not informed.

ACRI is concerned that this constitutes an infringement of or is likely to infringe on human rights, and contravenes the law’s original purpose.

The story begins in November 2020.

At the time, ACRI attorney Gil Gan-Mor, citing the Freedom of Information Law, asked the Knesset’s research and information center how many times the government had authorized the security service to execute tasks that were not specified in the Shin Bet Law – such as those it performed later during the coronavirus pandemic.

To grasp the importance of ACRI’s request, it’s necessary to consider the wording of the 2002 law that defines the Shin Bet’s objectives and purview, which states that, “The Service is entrusted with safeguarding the security of the state, the arrangements of the democratic regime and its institutions, against threats of terrorism, sabotage, subversion, espionage and the exposure of state secrets; the Service will also work to preserve and promote other essential interests concerning the state’s national security, all according to what the government will decide and subject to the law of the land.”

Yet article 7(b)(6) of the Shin Bet Law also stipulates that the Shin Bet may carry out “activity in another area as decided by the government with the approval of the Knesset’s Committee on the Service [a reference to a subcommittee of the Foreign Affairs and Defense Committee] which is intended to preserve and promote national interests that are essential for the state’s national security.”

ACRI sees a dangerous loophole here for expanding the Shin Bet’s powers in a clandestine way, and without that being given specific expression in the legislation.

The Shin Bet Law was initially set in motion in 1989. The reason: vociferous public and judicial criticism, after it was revealed that the organization was continuing to torture Palestinian prisoners in interrogations, including cases that could not be defined as an exercise of “moderate physical pressure” or as a “ticking bomb.” This happened even after a 1987 judicial commission had issued very specific limitations on and guidelines for the interrogation powers of the Shin Bet.

In 1989 two Palestinians died as a result of being tortured during their interrogations by two Shin Bet interrogators. Eventually they were punished and served short prison terms. The goal was to enshrine in law the ban on torturing interrogates. The Shin Bet objected, citing the usual claim: It will harm the organization’s ability to combat terrorism. At the same time, it was clear to everyone involved that it was necessary to clarify the Shin Bet’s powers more generally – what it’s permitted and not permitted to do – and to establish the supremacy of the law and the organization’s subordination to the government and the Knesset.

Ami Ayalon, who was appointed Shin Bet chief after the assassination of Prime Minister Yitzhak Rabin in 1995, pressed for the law to be enacted, but that didn’t happen until six years later, during the tenure of Avi Dichter as the head of the organization.

Dichter told Haaretz this week that what especially interested him was to word the law such that the Shin Bet would be able to receive full powers and permission to get data from communications companies.

Indeed, Article 11, one of the most significant clauses, grants the Shin Bet the authority to collect and store communications data about the country’s citizens. That database was utilized by the Shin Bet to carry out the surveillance during the coronavirus crisis.

We return to problematic Article 7(b)(6), under which the government can authorize the Shin Bet to carry out additional functions not stipulated in the law. ACRI’s fears were realized as early as 2004, just two years after the law’s enactment:

According to the information received by attorney Gan-Mor, the government had indeed sought to invoke the article to carry out three additional tasks.

All three requests were approved by the government and Knesset.

Two were never made public and it’s not clear what their purpose or aim was – although it is known that one of the two mysterious tasks, originally approved as an emergency order supposedly lasting two years, became permanent afterward.

It can be assumed that the functions in question have to do with improving the Shin Bet’s technological know-how and capabilities in order to carry out its core activities as stipulated in the law.

The Shin Bet had no problem revealing the third task for which it received authorization under Article 7(b)(6), in 2004: “Maintaining reciprocal ties with public bodies and with intelligence and security bodies, including foreign bodies, including the receiving and transmitting of information.”

The phrasing suggests that the bodies referred to are, for example, the Communications Ministry, media companies, the Israel Defense Forces, the Mossad, the Defense Ministry, Malmab (Defense Ministry Security Authority), the Atomic Energy Commission, the Biological Institute in Nes Tziona, the defense industries and so on.

Authorizing the Shin Bet to maintain ties with foreign bodies, however, was highly significant: Until then all such connections and cooperative efforts had to be approved by Tevel, the foreign relations division of the Mossad, and by the relevant IDF military attachés abroad.

The Mossad, which naturally wanted to retain exclusive control of Israel’s liaisons with foreign intelligence bodies, opposed the wording. A good many conversations were needed between Dichter and Mossad chief Efraim Halevy and his successor Meir Dagan, as well as the intervention of two prime ministers, Ariel Sharon and Ehud Olmert, before understandings were reached in this regard. Along the way a division of labor ensued that resulted in a rather amusing state of affairs. It was decided in 2004 that the Shin Bet would be in charge of the ties with the preventive security branches of the Palestinian Authority, headed at the time by Jibril Rajoub in the West Bank and by Mohammed Dahlan in the Gaza Strip, but that the Mossad would be in charge of the ties with the PA’s military intelligence, then under the command of Amin al-Hindi.

At Halevy’s request, Dichter invited Yoram Hessel, then-head of Tevel, for a get-acquainted meeting with al-Hindi. At first Hessel was enthusiastic about his new role – especially in light of the fact that al-Hindi asked for his help in transferring musical instruments from Port Said to an orchestra in Nablus. Hessel thought that drums and trumpets were code words for weapons and explosives, only to discover that real musical instruments were indeed involved. His enthusiasm waned and the Mossad concluded that their involvement was superfluous.

The Shin Bet was then put in full charge of maintaining ties with Palestinian military intelligence as well. The extension of powers also enabled it, for example, to start sending representatives and attachés to Israeli missions abroad. Today most of Israel’s contacts with Jordan and Egypt relating to security issues, and certainly with regard to the PA and Hamas, are channeled through the Shin Bet.

See you in court?

But that was not the last time Article 7(b)(6) was invoked. According to information received from the Knesset, in 2007 the government sought to allow the Shin Bet to fulfill two more functions, both of which remain undefined and unknown. One was approved, the other was dropped.

All told, then, since 2002, the Shin Bet has involved this article five times, and during the pandemic it did so again, this time with the public’s knowledge. Overall, then, five tasks/missions were approved and one was removed from the agenda.

ACRI is concerned that the security service has assumed certain roles that the public, and apparently also most lawmakers, are not aware of, and that the organization’s tasks are formulated vaguely and expansively, enabling, theoretically, the transmission of sensitive information about Israeli citizens to foreign bodies, even if authority for this is not enshrined in the law.

In the wake of the discoveries, attorney Gan-Mor wrote to Attorney General Avichai Mendelblit, reminding him that within the framework of the court petitions filed last year against using the Shin Bet to track people who tested positive for COVID-19 or violated the quarantine, the High Court of Justice for the first time delivered its interpretation of Article 7(b)(6).

The court ruled that a decision to grant authorization is legitimate only in case of clear and present danger to the country’s citizens and residents or to the order of the regime, and that any such authorization is temporary.

Gan-Mor adds that he does not question the Shin Bet’s legal authority to use the problematic article also for “areas that do not relate to security in the narrow sense,” but notes that the High Court of Justice ruled that such authorization can be granted only in a situation of “grave and immediate danger that could not have been foreseen.” Because the Shin Bet does not specify what such a danger is – as the past cases revealed here show – ACRI believes that the organization is wrongly taking advantage of the vaguely worded article.

“The Shin Bet is not authorized to continue to operate in the four areas that were granted to it in government decisions, and it must cease to execute those tasks forthwith,” Gan-Mor says. “ACRI is not opposed to an extension of the Shin Bet’s tasks if there is a clear-cut security need for it, but insists that adding permanent functions would demand enactment of primary legislation and must be transparent following public discussion – not take the form of a government decision approved by a very small number of MKs at a secret meeting whose existence is not even made public.”

For his part, Ami Ayalon tells Haaretz that over and above the question of whether there were flaws in the approval to extend the Shin Bet’s powers in the past, the main issue is basically one of substance.

“The inner logic of the law was based on an assumption that in a democracy there is a separation of powers and Knesset committees review the government’s activity. On the basis of that assumption, it was decided that no additional tasks could be given to the Shin Bet without the approval of the Knesset committee for Shin Bet affairs,” he says.

“We thought that the committee would be a gatekeeper vis-a-vis the executive branch. But in recent years we found out that the government does what it wants in the Knesset. This is a situation that the law in its present format did not foresee.”

The Attorney General has rejected ACRI’s claims. About a week ago attorney Netta Kenigstein, representing the state prosecution, wrote to Gan-Mor on behalf of Mendelblit. All the functions that have been accorded to the Shin Bet over time, she noted, “are within the core areas of security in the narrow sense which the Service is in charge of,” and therefore “we find acceptable the position of the Service as it was presented to us.” She added, “The extension of the Service’s tasks by force of Article 7(b)(6) of the Shin Bet Law does not as such permit a disproportionate infringement of rights.”

In response, Gan-Mor says that ACRI does not accept the Attorney General’s position and adds that, “in a democracy there is no place for the permanent extension of the powers of the internal security organization by means of government decisions that are approved in secrecy.”

ACRI intends to petition the High Court of Justice on this issue soon.

Source: Yossi Melman – HAARETZ