Lifting the veil of secrecy: judicial review of administrative detentions in the Israeli Supreme Court.

• Author: Krebs, Shiri

ABSTRACT

All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is judicial review. Nonetheless, judicial review of administrative detention proceedings suffers from inherent difficulties and is typically based on ex parte proceedings and secret evidence. In spite of these difficulties and based on a few renowned cases, it is widely accepted in the scholarly debates that the Israeli judicial review model is robust

and effective. Therefore, prominent international law scholars often recommend the adoption of this model in various other states, including the United States, and claim that it is best suited to fulfill international human rights law requirements. Nevertheless, as this study reveals, out of the 322 cases that were decided by the Israeli Supreme Court from 2000 to 2010, not even a single case resulted in a release order or in a rejection of the secret evidence.

This research provides, for the first time, a systematic empirical analysis of these 322 cases. Since the judgments in this field are usually short and laconic, providing very little information on the process, the case law analysis is complemented with in-depth interviews with all of the relevant stakeholders: Israeli Supreme Court Justices, defense lawyers, state attorneys, intelligence officers, and Palestinian detainees. The research demonstrates a meaningful gap between the rhetoric of the few renowned cases and actual practice. In particular, it reveals the difficulties courts face in attempting to challenge secret evidence. Furthermore, the research discovers the formation of "bargaining in the shadow of the Court" dynamics and the adoption of alternative dispute resolution methods by the Court, such as mediation and negotiation.

Put together, the inclusive case law analysis and in-depth interviews provide extensive information on the actual practice and inherent weaknesses of judicial review of administrative detention cases; they lift the veil of secrecy that currently overshadows this sensitive and important judicial process; and they cast doubt on arguments that Israel's detention model is one that should be emulated by other countries.

TABLE OF CONTENTS I. INTRODUCTION II. ADMINISTRATIVE DETENTIONS: DEFINITIONS AND CURRENT DEBATES III. SECRET EVIDENCE, JUDICIAL REVIEW, AND THE ROLE OF THE COURTS A. Judicial Review as a Counter-Majoritarian Check on Executive Power B. Judicial Management Model vs. Special Advocate Model IV. ADMINISTRATIVE DETENTIONS IN ISRAEL A. Administrative Detentions in Israeli Territory B. Administrative Detentions of Palestinians in the Occupied Territories C. Administrative Detentions of Aliens V. THE JUDICIAL REVIEW PROCESS A. Act I: The Reasoned and Renowned Judgments B. Act II: The Actual Practice of the Court--All of the Relevant Decisions 1. The Outcomes of the Cases 2. Rate of Withdrawals 3. The Length of the Decisions 4. The Length of the Detention 5. The Nationality of the Detainees 6. The Court's "Recommendations" to the Parties C. The Correlation Between Criminal and Administrative Detentions VI. LIFTING THE VEIL OF SECRECY: "BEHIND THE SCENES" OF THE JUDICIAL REVIEW PROCESS A. Secret Evidence, Ex Parte Proceedings, and the Judicial Management Model 1. Judicial Management vs. Special Advocates B. Bargaining in the Shadow of the Court C. The Differences Between the Three Detention Regimes D. "Law in the Books" vs. "Law in Action" E. Transparency and Procedural Justice VII. CONCLUSION APPENDIX I: METHODOLOGY A. Phase I: Content Analysis B. Phase II: In-Depth Interviews C. Interview Protocols APPENDIX II: LIST OF FIGURES APPENDIX III: LIST OF TABLES APPENDIX IV: LIST OF INTERVIEWS All the world's a stage, And all the men and women, merely Players.

William Shakespeare (1)

We examined the secret evidence. The dangerousness posed by the petitioner is severe, and the petitioner knows exactly how much he is involved.

Justices of the Israeli Supreme Court (2)

I never knew what the case against me was. My lawyer never saw the evidence against me. I felt discriminated against and ignored.

"Mohamed," Palestinian Detainee (3)

1. INTRODUCTION

   All around the world, hundreds of individuals are constantly subjected to administrative detentions designed to prevent them from committing future atrocities. Generally, the main protection against arbitrary and unjustified administrative detentions is posed by judicial review, which is typically conducted ex parte and is largely based on secret evidence.

   In the first decade of the twenty-first century, the Israeli Supreme Court had performed judicial review over hundreds of administrative detention cases. In the scholarly debates surrounding this field it is widely accepted--based on the Court's rhetoric in a few renowned cases--that the Israeli Supreme Court's judicial review of administrative detentions is robust and effective. The Israeli judicial review model is often described as "interventionist." (4) However, there has been little scrutiny of the Court's review beyond a handful of high-profile, oft-quoted cases. Indeed, in a recent joint article characterizing this judicial review as "active," Professors Daphne Barak-Erez and Matthew Waxman opine that in order to draw more meaningful lessons from the Israeli model there is a need for "thorough empirical research of the decisions of the Israeli Supreme Court in this area." (5)

   This research is a response to that challenge. It provides, for the first time, a systematic empirical analysis of the Israeli Supreme Court's case law regarding administrative detentions from 2000 to 2010. The case law analysis encompasses all of the relevant judgments, including hundreds of short, laconic, and unpublished decisions. The findings are surprising and reveal a meaningful gap between the rhetoric of a few renowned cases and actual practice. On the one hand--and contrary to general review of an interventionist court--this study reveals that out of the 322 cases decided by the Israeli Supreme Court in this period, not a single case resulted in a release order, and in none of the cases did the Court openly reject the secret evidence. On the other hand, more subtle Court dynamics were detected, such as "bargaining in the shadow of Court" dynamics and "mediation" efforts on behalf of the Court; that is, even though the Court did not order releases in any cases, the Court's involvement had some impact on the parties' efforts to resolve cases.

   In order to suggest explanations for some of the most surprising findings--such as the very high rate of withdrawals by the detainees just before the courtroom hearing--seventeen in-depth interviews, with all of the relevant stakeholders (Supreme Court Justices, defense lawyers, state attorneys, Israeli Security Agency representatives, and former detainees), were conducted. These interviews provide a unique glimpse into the judicial review process and reveal some of the behind the scenes dynamics of that process. In particular, the interviews shed light on two important characteristics of the judicial review process: the difficulties the Court faces in attempting to challenge the secret evidence and play the role of the detainee's lawyer during the ex parte proceedings, and the formation and adoption of alternative dispute resolution methods by the Court, such as mediation and negotiation.

   Put together, the comprehensive case law analysis along with the in-depth interviews provide extensive information on the actual practice and the inherent difficulties of the judicial review of administrative detention cases, and unveil the unique methods the Court has developed to confront them. Above all, they shed some light on what is happening behind the closed doors, and lift the veil of secrecy that currently overshadows this sensitive and important judicial process. Fundamentally, they cast doubt on arguments that Israel's detention model is one that should be emulated by other countries. While the Israeli Supreme Court does the best it can, given the legal framework of secret evidence and ex parte proceedings, the legal framework itself makes independent judicial review of detention exceedingly challenging, if not impossible.

2. ADMINISTRATIVE DETENTIONS: DEFINITIONS AND CURRENT DEBATES

   This is not ideal. [Administrative detentions] represent a certain devaluation of our system of values, but there is no other choice.

   Justice E, Israeli Supreme Court (6)

   Administrative detention is an executive-controlled detention mechanism that may take different forms and be executed in different ways within different contexts, by different authorities, and for different purposes. (7) A basic and general definition for administrative detentions, which is commonly used in international (particularly United Nations) documents, is "persons arrested or imprisoned without charge." (8) This paper focuses, however, on a specific administrative detention regime, also referred to as "executive detention," (9) "preventive detention," (10) or "security detention." (11) This type of detention is a proactive mechanism operated by the Executive or military authorities in order to prevent future harm to national security. (12) In accordance with this mechanism, individuals can be administratively detained although they have never committed any crime; they are being detained in order to prevent them from committing future crimes or offenses. (13)

   In spite of the increasing attention given recently to this mechanism, administrative detention is not new. (14) Throughout the years, many states have employed various administrative detention regimes, differing in their scopes, contexts, and procedures used to confront a variety of threats to national security. (15) In the recent decade, however--since the emergence of the global...