“Sunlight is said to be the best of disinfectants”, said American Supreme Court Justice Louis Brandeis. Publicity is one of the main guarantees for good governance. This is one of the reasons why judicial hearings are held in open court. This is one of the reasons why democratic judicial systems detest secret detentions and secret prisons. Brandeis’ famous quote does not appear in the judgment of Supreme Court President Dorit Beinisch in the matter of the secret prison referred to as 1391. However, questions about revealing and concealing are woven into the judgment throughout.
secrecy compromises a long list of guarantees that are meant to protect the detainees’ rights, such as the possibility of outside supervision of the facility
The judgment relates to an incarceration facility which bears the military code “1391”. Information published about the facility – some officially and some unofficially – indicates that this is a military intelligence prison currently located in a fort dating back to the British Mandate, near Hadera. Over the years, the facility was mainly used for holding prisoners from foreign countries. Abductees from Lebanon, including Sheikh Obeid and Mustafa Dirani have been held there, as well as other nationals. For many years, the facility operated in complete secrecy. During the hearing of the petition, then Supreme Court President Aharon Barak admitted he did not know about the facility when he served as the attorney general. The clandestine routine was disrupted when, for a certain period of time beginning in 2002, the facility was also used for interrogating detainees from the Occupied Palestinian Territories (OPT).
Unlike prisoners from foreign countries, when an OPT resident is arrested, his family knows where to turn in order to find out where he is held and try to provide him with assistance. One of the major addresses to which to turn for help is HaMoked: Center for the Defence of the Individual, or HaMoked. It handles thousands of requests to locate detainees every year and files High Court of Justice (HCJ) petitions when the authorities do not provide information regarding the place of detention.
When HaMoked requested the location of detainees who, it later turned out, were held in the secret facility, it received false, partial or deceptive responses. In some cases, HaMoked was told that the detainee was in an ISA (Israel Security Agency) facility. In others, it was given the name of a contact person who would provide information about the detainee rather than a location. When HaMoked filed HCJ petitions in these cases, the existence of the facility was exposed.
The testimonies of detainees held in the facility could be collected after their interrogation there ended and they were transferred to other holding facilities. These testimonies uncovered the cruel holding conditions in the facility and paved the way for the HCJ petition filed in 2003 and ruled on in 2011.
The remedy HaMoked sought in its petition was the closure of the facility. HaMoked argued that a long list of express provisions, both in Israeli and international law, prohibit the operation of a secret prison. Secrecy per se injures the rights of the detainees who are thrown into an unknown place. Additionally, secrecy compromises a long list of guarantees that are meant to protect the detainees’ rights, such as the possibility of outside supervision of the facility. These guarantees are particularly necessary when subjects of enemy states are involved, as they are at an increased risk of harm and the guarantees for their protection are particularly weak. The UN Committee against Torture referred to Facility 1391 in its 2009 report.
The committee found that holding detainees in a secret facility was, of itself, a violation of the Convention against Torture. President Beinisch chose not to address this report in her judgment.
Along with HaMoked’s petition, the judgment ruled on and rejected a petition filed by then Member of Knesset Zehava Galon.
Galon requested, as an MK, to enter the facility in order to perform her duty and hold parliamentary supervision of the site. The state refused and the court dismissed her petition.
Along with HaMoked’s petition, the judgment ruled on and rejected a petition filed by then Member of Knesset Zehava Galon. Galon requested, as an MK, to enter the facility in order to perform her duty and hold parliamentary supervision of the site. The state refused and the court dismissed her petition.
Other petitions related to the secret prison, which were also dismissed, challenged the state's decision not to launch criminal investigations against ISA interrogators and soldiers who were on staff at the prison with respect to inhuman holding conditions and ill-treatment of inmates.
The inextricable link between secrecy and the ill-treatment of inmates was also in the background of this petition.
The judgment is directed at the reader. It tells the story of the matter, the proceeding, the ruling and its reasons. On many issues, the court chose to delve into minute detail. On others, it is so frugal with the details that it left huge gaps in the story. The judgment includes a lengthy description of the developments that occurred in the operation of Facility 1391 after the petition was submitted. In fact, this description is the focal point of the judgment. The court uses these developments to defend its decision to reject the petition. Given this, the court's choice not to describe the facts that preceded the petition stands out. The only details provided about the past are figures relating to the number of detainees in the facility and how long they were held. The court evades telling the readers what the detainees were told about their place of detention (for instance: that they are “on the moon”). It does not address the question of who, even within state authorities, knew about the facility. Maybe it was more convenient to defend the current state of affairs than to air out this dirty laundry in writing. “[W]e are not addressing the situation prior to the hearing of the petition”, states Supreme Court President Beinisch.
The justices’ choice of “not addressing the situation prior to the hearing of the petition”, is only the beginning of their apologetics. President Beinisch reiterates that Facility 1391 is not a black hole, like the facilities operated by the CIA around the world, the very existence of which has been denied. She emphasizes time and again that holding detainees in Facility 1391 does not fall under the definition of “enforced disappearances” which put people outside the protection of the law. This rhetoric is merely a straw man argument: HaMoked never claimed that holding detainees in the facility constitutes enforced disappearance. HaMoked claimed that the facility’s secrecy voids a number of guarantees that have been put in place in order to, inter alia, prevent the phenomenon of enforced disappearances. These guarantees are stipulated in express statutory provisions which are hard to interpret, either literally or purposefully, in a manner that allows holding a detainee in a secret facility.
What do the justices do with these express statutory provisions, such as the provisions which require officially declaring places of detention and telling detainees and their families where they are held? It is difficult to extract a clear answer to this question from the judgment. In some places, it seems that the justices accept the state’s position that a purposeful interpretation of these provisions is not at odds with the existence of a secret prison; that it is sufficient to declare a prison by a code name, the significance of which is known to very few individuals; and that the authorities fulfill their obligation to provide notification to the detainees' families by providing the telephone number of a contact person who can provide information about them. In other places, it seems that the justices do not accept this position, but appear to be allowing a deviation from the letter of the law in this specific case, due to military necessity and as long as a series of alternative guarantees for protecting the detainees is implemented, guarantees the make the harm done to the detainees “proportionate”.
These guarantees, which are meant to replace the guarantees that come from the publicity of the place of detention and from opening it to outside supervision, are the basis for the decision to dismiss the petition. The president of the Supreme Court presents some of these in her opinion: Thus, for example, it has been decided not to hold residents of Israel or the OPT in the facility, that individuals would not be held in the facility for longer than a “limited and extremely brief” period of time, and that holding a person in the facility would be subject to authorization by “high ranking officials” and a report to the attorney general. The court was also presented with procedures ostensibly designed to ensure that the rights of the detainees are upheld: the facility would be inspected by government bodies and members of the Secret Services Subcommittee of the Foreign Affairs and Defense Committee may visit it. According to the judgment, these procedures would not only reduce incarceration times and increase oversight of what goes on inside the facility, but would also reduce the number of individuals held in it. And indeed, according to the judgment, from 2006 and until the judgment was rendered, not a single detainee was held in the facility.
The pesky theoretician might ask: if the correct interpretation of the law does not preclude the existence of a secret prison to begin with, then why was the petition dismissed subject to the implementation of these special guarantees? And if the correct interpretation of the law forbids the existence of a secret facility, where in the law might one find the clause that empowers the state, with the approval of the court, to enact alternative norms applicable to secret prisons? As previously stated, the judgment provides no answer to these questions.
Thus, on course to endorsing the existence of a secret prison, the Supreme Court created secret legislation and secret case law
The pesky practical person would ask another question. He would want to know exactly which norms apply to Facility 1391. A lawyer representing a detainee held in the facility might, for example, like to know how many days a detainee may be held in the facility, so that if his client is held there for a longer period, he may petition to have him transferred. There is no answer to this question in the judgment either. The maximum time a detainee may be held is “a limited and extremely brief duration not exceeding the number of days noted by counsel for the state in the annex to the second supplementary response on behalf of the state attorney’s office, submitted for review by the court only (section 7 of the annex)”. The rest of the norms applicable to the facility are also mostly confidential: “Naturally, we are unable to expose the details of the arrangement brought for our review ex parte
One can only hope that the government officials who are in possession of these provisions are diligent in upholding them…
Thus, on course to endorsing the existence of a secret prison, the Supreme Court created secret legislation and secret case law. The detainees inside Facility 1391 will not be placed outside the protection of the law, but the law protecting them will remain secret, and as such, unenforceable, save for by the authorities themselves. At times, the judgment reads like a statement of defense for the state and the court itself, a statement of defense which seeks to convince us to count on the justices that the secret guarantees they sanctioned will indeed ensure the detainees’ rights. The harder this statement of defense tries, the more questions it raises. The dictum that sunlight is the best disinfected holds true not only for prisons but also for the content of court rulings.Att. Yossi Wolfson
The Author is an attorney and an activist for human and other animals’ rights, previously staff at HaMoked: Center for the Defence of the Individual. While working for HaMoked he wrote the petition and argued it in court on HaMoked's behalf.