There is a clandestine detention facility in the State of Israel. The facility is situated on a secret army base and its operations are a mystery, distant from the eyes of the law. Nobody knows who is being held there, why they are being detained, what the conditions are in the facility, or how they are interrogated.
The existence of the secret facility was revealed gradually during the course of two habeas corpus petitions filed by HaMoked to learn the location of three Palestinian residents of the Occupied Territories who had disappeared. The state attempted to continue its policy of secrecy and to prevent judicial review in the matter, but ultimately was forced to admit that a secret facility, referred to as Facility 1391, indeed existed. According to unverified reports, the facility is located near Kibbutz Barkai. The state contends that Facility 1391 is the only secret facility, but refuses to state whether the “facility” is located on one site, or whether it comprises, for example, a collection of clandestine facilities that are given one code name.
During the hearing on these petitions, the High Court suggested to HaMoked that the organization withdraw its petitions – because the individual cases of the petitioners were no longer relevant – and file a new petition on the legality of a detention facility the location of which is kept secret by the state. On 30 October 2003, HaMoked filed the petition (HCJ 9733/03), and the High Court issued an Order Nisi in December 2003.
The petition argues that holding a person in an undisclosed location flagrantly breaches Israeli law, international human rights law, and international humanitarian law. The secrecy of the facility and the lack of meaningful external supervision (even the Red Cross is not allowed to enter the facility) expose the detainees to the threat of torture. The argument is especially relevant because of the kind of detainees held in the facility: foreign subjects who are interrogated on suspicion of having committed security offenses. These detainees are particularly vulnerable to harm in that the soldiers perceive them as “the other” and as “the enemy,” and they are detached from their homeland. Transparency, disclosure, and external supervision by independent persons are the most recognized and sure means to overcome the threat of torture.
In practice, under the guise of the facility’s secrecy, the facility is home to severe torture, including sexual abuse and degradation. Also, the detainees are held in shameful conditions: they suffer from sense deprivation, prolonged isolation, and denial of standard sanitary items. According to one report, the facility has also been used to make at least one foreign subject disappear for a prolonged period of time.
Even absent physical torture, keeping the location of a detention facility secret can be viewed as cruel and inhuman treatment of the detainees and their families. Concealing the location where a detainee is held denies him the one and only thing he needs to grasp on to, while every other possible source – defense officials or any other person or entity – leaves him in uncertainty about the detention. In support of its petition, HaMoked submitted a psychiatric opinion that indicates impairment of spatial orientation serves the interrogators’ goal: to break the detainee psychologically.
HaMoked is asking the High Court of Justice to restrict the governmental authorities to the means of secrecy granted them by law, to cease operation of the clandestine facility, and to hold detainees only in facilities that are declared and recognized in accordance with law.
In its brief to the HCJ, submitted on 12 December 2004, HaMoked argues that the state has failed to point to any statute that permits it to hold detainees in a secret facility in defined, exceptional situations. The state relies on statutory provisions that relate to every detention in the State of Israel, interprets them superficially, and contends that these statutes permit them to hold a detainee – every individual, in fact – in a secret military facility, whose location is not provided to the detainee or his family. The power to conceal the location of the place where a person is being held is inconsistent with a democratic regime, and constitutes a significant step on the slippery slope to the darkest of regimes.
The hearing in the High Court of Justice
The open part of the court hearing revolved about the state’s arguments. Chief Justice Barak observed that it was problematic for a liberty-loving democratic state to maintain detention facilities and conduct trials “out there somewhere,” giving every citizen the feeling that persons are being detained and kept in “the air". Even if it were possible to divide the issue and respond to each part, when we look at the whole, the difficulty remains. There is a general purpose whereby “it is forbidden that such a thing take place in a democratic state.” The question involves the added dimension of a value that is hard to break down into its particulars.
Chief Justice Barak also stated that individuals have the fundamental right to know who they are and where they are, in the same manner as persons who are adopted want to know who their biological parents are. The number “1391” tells them nothing from this perspective. Giving the number “1391” as a marker for the place of detention does not give me – the citizen, the detainee – anything.
Justice Tirkel discussed the interpretation given by the state, which claimed that providing an address to those who ask complied with its constitutional obligation to inform the family and attorney of the place where the detainee was being held. According to the justice, such an interpretation renders superfluous the word “place” that the legislator included in the statute. At the state’s request, the second part of the hearing was held ex parte, during which the court suggested a number of proposals to the state to resolve the matter. The state is studying the suggestions and will respond to the court within sixty days. In the interim period, the state must inform the court (ex parte) about any person who is held in the facility, and the court will render a decision on the particular case, as necessary.