After seven years, the HCJ rejects HaMoked's petition against secret prison 1391: the court creates a secret ruling, based on a classified "arrangement" and avoids directly addressing the issue of the facility's legality
In 2003, HaMoked petitioned
the High Court of Justice (HCJ), demanding to shut down secret prison 1391. HaMoked argued, then as now, that both Israeli and international law include a series of explicit provisions that forbid operating a secret prison. The military intelligence detention facility at issue, operated in complete secrecy, and through the years was mainly used for holding and interrogating foreign nationals. When HaMoked attempted to trace detainees who were held in the secret facility, the military provided false, partial or deceptive replies. Following HaMoked's habeas corpus petitions, the facility's existence came to light, as well as the harsh detention conditions prevailing therein.
In a notice in the proceedings, the State Attorney's Office announced that an arrangement that would greatly reduce the facility's use for incarceration had been formulated. The court accepted the suggested arrangement. But what exactly is this "restrictive arrangement" which is cited 27 times (!) in the judgment and is ultimately its decisive factor? Highly irregularly, the arrangement was appended to the judgment as a classified annex, i.e. forms a classified part of the actual judgment, rather than classified material, substantiating it. In the process of legitimizing the secret prison, the HCJ introduced secret law, both judicial and statutory.
Details approved for publication show that residents of Israel or the Territories would not be held in the facility; that detainees would be kept there for "a limited and extremely brief duration"; and that holding a person therein requires approval by "high ranking" officials and informing the Attorney General. Furthermore, in an ex parte hearing, the state presented the court with procedures purported to guarantee detainees' rights: the facility is to undergo periodic inspections and may be visited by members of the Knesset's Secret Services Subcommittee of the Foreign Affairs and Defense Committee. The judgment
rejects HaMoked's petition, yet evades decision on the legality of the secret facility. The justices rule that "use of the detention facility – in its current form and noting the restrictive arrangement undertaken by the state – does not contravene the provisions of Israeli and international law". However, in the next passage they note: "should the state seek to hold detainees in the facility for a duration exceeding that which was determined in the restrictive arrangement, it shall be obliged to relay the physical location of the detention facility also". The justices found the maximal detention period, viewed confidentially, to be "extremely brief": but can it be that just a slightly longer detention period is what it takes to turn the concealment of the facility's location illegal?! Or instead, is the restrictive arrangement a fig leaf for legitimizing Israeli actions, actions which violate both Israeli and international law?
A careful reading of the judgment adds to the perplexities. First, President Beinisch states that HaMoked based its petition on a Ha'aretz newspaper article, when in fact the opposite is true - the newspaper based its article on HaMoked's findings. Second, the judgment describes in detail all that unfolded in the operation of the secret prison since the petition was filed, but completely ignores the state of affaires beforehand. The court eschewed the issue of the treatment of detainees in the facility, and completely evaded questions such as who knew the facility existed and about the detainees held therein. Recall, the petition was initiated in view of the military's nondisclosure of detainees' whereabouts, and it false replies. Third, the state notified that those detained in the secret facility would be allowed to meet with their attorneys in an outside location, which raises several questions: if the detainees are not under a "security preclusion" which prevents their going outside the facility, why are they detained there? And why not interrogated them in a known, supervised facility? Finally, why does the judgment omit all mention of the position taken by the UN Committee against Torture, that facility 1391 and any other secret detention facility, must be shut down immediately?
The president of the Supreme Court established that the scope of argument in HaMoked's petition had been circumscribed, with the only issue remaining being the secrecy of location. This clearly underscores the justices' preoccupation with the surface of the petition - despite the fact the secret facility's exact location, along with photos and satellite images, can be easily found on popular websites - all the while, circumventing the core issue. The judgment, with its classified annex, places Facility 1391 under the jurisdiction of the law, but effectively leaves all that goes on inside it out of sight, , and how can the unknown be monitored and reviewed?
The detainees in Facility 1391 are no longer outside the protection of the law, but the law protecting them will remain secret, and as such, unenforceable For HaMoked's Court Watch commentary of the judgment