HaMoked lodged a supplementary notice for the upcoming HCJ hearing of its petition to shut down the secret prison, Facility 1391: in the past the state admitted the secret prison exists and that it concealed it from the public, but claimed this to be legal. In its arguments, HaMoked stresses that Israel's demand to continue operating the secret prison blatantly contrasts the outright disavowal other states expressed in response to recent reports of secret prisons inside their territories and the calls to investigate any suspicion that such secret prisons exist. Israel thus puts itself on the fringes of the international community
HaMoked's supplementary notice supplies updates on current world events concerning secret prisons. HaMoked points out the harsh international response to the Washington Post's exposé of a CIA network of secret prisons across Eastern Europe and other countries elsewhere. Intelligence sources told the newspaper that the decision to set up secret prisons outside the USA stemmed from their illegality under American laws. The testimonies to the fact that secret prisons operate on European soil elicited serious responses by countries and the European Union, the latter threatening that countries where secret prisons operate could not participate in votes of EU institutions. The European Parliament established a special investigation committee, and criminal investigations were opened in a string of countries, among them Canada, Italy, France, Sweden, Spain, Norway, Switzerland and Holland.
The reports were received by blanket denials of all concerned, including the USA. The global response reflects the international consensus that this forms an utterly forbidden and reprehensible practice. Israel's conduct is particularly blatant against this background. It is the only western country that not only admits to operating a secret prison, but also claims it is legal and battles in court to keep it running. Thus, the state willfully relegates itself to the fringes of the international community.
HaMoked inadvertently uncovered the secret prison through two habeas corpus petitions it had lodged to trace missing detainees. Initially the state continued to deny the detainees were kept in a clandestine facility, but eventually, HaMoked's perseverance brought it to admit they were held in a secret facility, in a secret location inside a secret military base, which is named "Facility 1391". After the revelation, HaMoked was able to gather testimonies of former detainees in the facility, among them Palestinian residents of the Territories who had been suspected of terrorist activity. The testimonies reveal a grim reality of illicit interrogation methods, torture and abuse of detainees, inducing disorientation in interogees and holding them in isolation and inhuman conditions. The secret prison and the harsh holding conditions in it reverberated in the media. Aviv Lavie's article "Inside Israel's secret prison" (Ha’aretz magazine, August 22, 2003) described life on the inside: "Detainees are blindfolded and kept in blackened cells, never told where they are, brutally interrogated and allowed no visitors of any kind. Dubbed the "Israeli Guantanamo", it's no wonder facility 1391 officially does not exist."
On October 30, 2003, HaMoked petitioned to have the secret prison shut down, and on December 1 the same year, an order nisi was issued, concerning the secrecy of the prison's location. The state argued there were security grounds for keeping its location concealed, and it is not required by law to reveal it. The state also argued that although external inspections of the prison were not conducted, by the International Committee of the Red Cross or otherwise, torture was not practiced there. The state claimed the prison was principally intended for foreign nationals (it is known that Mustafa Dirani and Sheikh Obeid were held and interrogated there), yet it admits that for a period of 13 months it was widely used for interrogation of Palestinians from the Territories.
In advance of the hearing, HaMoked argued that a prison facility must be exposed and declared, including its physical-geographical location, asserting that the ban on secret prisons serves as a guarantee against torture and inhuman detention conditions. During the hearing, held on December 15, 2004, the court expressed disproval of the existence of a secret facility. President Barak stated that the very notion that in a democracy, there are detention sites that are “somewhere out there” and that and people from our midst have "disappeared", must affect the sensibility of every citizen. He further added that every person is entitled to know who he is, where he is and where he is held. Judge Turkel said that the state's interpretation of the term "place of detention" strips it of all meaning. He added that naming the location is of major importance in itself, and even a person held on "devil's island" may be taken by boat to meet his attorney. In the confidential hearing which followed, the state presented its classified security reasons. During this session, the court requested the state to consider several solutions and deliver its response, and both agreed that in the interim, no one would be held in the secret facility without informing the justice panel.
On August 15, 2005, the State Attorney's Office announced that with the assent of the Attorney General, a new arrangement had been decided upon, considerably limiting the scope of use of Facility 1391 for incarceration. Also that as a rule, Israeli citizens and residents of the Territories would not be held there. HaMoked objected to the arrangement, and requested, on August 24, 2005, to proceed with the case. HaMoked asserted that the actual location of Facility 1391, close to Kibbutz Barkai, had already been exposed in the media, and the petition is set to prohibit its existence as a secret, uninspected, facility, rather than expose its location. HaMoked contends that the facility's secrecy remains unlawful even if it is only in limited use or if, "as a rule," citizens or Palestinians would not be held there. HaMoked claims that the foreign nationals who would be held there, are precisely those most vulnerable to violation of their rights. In light of these arguments, a hearing of the petition was scheduled.
In anticipation of the next hearing, set for January 22, 2006, HaMoked completed its arguments against a secret prison; its existence stands against international law and is unsettling for the peace of mind of any person or citizen.