Preventive Detention in Israel
To the Editor:
I was astonished to read in Alan M. Dershowitz’s article, “Terrorism and Preventive Detention: The Case of Israel” [December 1970], facts and views imputed to me which are untrue.
Let me first of all declare that I never was Fawzi El-Asmar’s lawyer, as Mr. Dershowitz states in the article, and so I was not competent to discuss the matter of Fawzi’s detention with Mr. Dershowitz, nor did I in fact discuss the issue with him.
In addition, my curriculum vitae as given by Mr. Dershowitz, including my views and motives, is false and utterly absurd.
I wish to remark also that there are many falsified facts and descriptions throughout the article but, of course, this is no consolation to me personally.
To the Editor:
. . . After I had been released from Damon Prison and placed under “restriction” in Lydda, I read Alan M. Dershowitz’s article on “preventive detention” in Israel, which cites my case as an example. The article . . . is so filled with personal attacks on me and my family, and also contains so many deceptions and incorrect statements . . . that I have decided to reply, taking up specific points at issue.
1) The lawyer: It is a fact that Mrs. Josepha Kafri handled my defense—and not Mrs. Felicia Langer, as was stated in the article.
2) The prison visit: Mr. Dershowitz did indeed visit me in the Damon jail. . . . However, he did not come alone, nor did we have a private interview, as implied in the article. He was accompanied by the governor of the prison, a plainclothesman, and the prison social worker. In their presence, Mr. Dershowitz asked me some. questions, of which he published only a partial account, omitting the most interesting parts. For example, he asked me what I, as an Israeli Arab, thought of the various Palestinian movements; he did not limit his questioning to Al Fatah, as he would have it appear in the article. I answered out of my beliefs as a leftist, but he selected for publication only such parts of my answers as suited his purpose. I said what I thought, although there was good cause for being afraid. . . . The plainclothesman interrupted me often, and tried to influence my remarks.
3) “Preventive” or “administrative” detention?: The most obvious deception perpetrated by Mr. Dershowitz was his use of the subjective term “preventive” instead of the objective term “administrative.” In so doing, he sought to make the irresponsible detention by the administrative authorities appear as a justified action. . . . He even took the liberty, in the translation of my poem that appears at the beginning of his article, of changing “administrative detention” into “preventive detention.” When he asked me about prison conditions, I repeatedly told him that in many instances “administrative detainees” were treated worse than sentenced prisoners. The “administrative detainee,” for example, is permitted only one visit a month, and only by members of his family. . . . A criminal prisoner, on the other hand, is allowed one visit every fortnight, and there is no restriction on who may come to see him. . . . The “administrative detainee,” contrary to what Mr. Dershowitz says, is permitted to write only two letters and four postcards a month. Since his only hope is to bring his case to the attention of the public, the usual legal procedures being closed to him, this restriction is especially hard on him. There is also no good reason for forbidding the receipt of books, newspapers, food, and cigarettes. “Administrative detainees” were not sentenced by any court, and hence there is no justification for punishing them. Also, the “administrative detainee” is not allowed to work in prison and earn money for his family. There are “administrative detainees” who have nine and ten children! . . .
4) The facts about me: The gravest charges against me were made by the chief of Shin Bet—an agency described in the article as “Israel’s small, but highly respected, counter-intelligence organization”—who, according to Mr. Dershowitz, showed him my personal file. I allow myself to doubt whether the charges quoted from this file were really in it and for the following reason: I was asked about a letter and that letter—of which a photocopy was shown to me during my questioning—was quite different in character from the letter Mr. Dershowitz describes, as I shall shortly explain. Since Mr. Dershowitz knows neither Arabic (the language of the letter) nor Hebrew (the language of the translation), I can assume that the Shin Bet man made up a letter that never existed.
I was shown a letter which was not addressed to me, but to a man in the conquered territories whom I don’t know. Nor do I know the sender of the letter. In the letter there was a list of collaborators with the occupying power, messages about money being sent, etc., and at the end, the following sentence: “Please try to contact Fawzi El-Asmar, who lives near the railway station in Lydda (of the El-Ard people).” Since my name is known in the Arab world as a poet and writer, it is not surprising that an attempt to contact me should have been tried, but the man who carried this letter was caught by the authorities before he could contact me.
Regarding the man who was alleged to be in Jordan and to have heard about me as a “leader of a terrorist group” and who was introduced to me, I claim that he brought the information his senders told him to bring. I am sure that he lied and deceived his senders.
Another point: Two months after Mr. Dershowitz talked to me, I was freed. Although I am still restricted to the town of Lydda, why was I set free if I am really as dangerous as the article makes me out to be? I also think that readers will be interested to know that one week before my release a member of the secret police came to my prison with a completely new accusation. He said that he had information that the censored manuscript of my poems—let it be noted that Arab poems have to undergo censorship in Israel . . .—with all the corrections and omissions demanded by the censor, was in the hands of Syrian intelligence. The secret police were very surprised when I was able at once to show them the same manuscript—in the hands of my lawyer. Such is the work of Israel’s secret police on some occasions.
5) The facts about my family: I should expect a man who holds a responsible judicial position, as does Meir Shamgar, Attorney General of Israel, to be correct in his facts. I should also have expected that he would never allow himself to broadcast baseless libels, in this instance regarding my parents and brother. To wit:
A) My mother was never a poet, as is claimed in the article, but a prose-writer. She wrote critical essays about the problems of Israeli Arabs and also about the relations of Israel with the Arab states. Until 1953 she published articles in the Arab daily newspaper belonging to . . . the Histadrut, El-Jaum. In 1954 she was elected to the World Peace Council. She did not write or publish anything after 1959. Since when is a legitimate criticism of land confiscation and of the expulsion of population considered an anti-Israeli act?
B) All the facts repeated by Mr. Dershowitz about my father are outright lies. The best proof is the fact that for thirty years, many of them under the Israeli government, my father was a civil servant. Had he ever been found guilty of “having made illegal contact with an Arab government” he would have been thrown out of his post immediately.
C) As for my brother, Ramzi, he emigrated from Israel and lived in Cyprus for four years. At his trial he was found guilty of having been in contact with a “foreign agent” (a very elastic term in Israeli law, as the trial of Aharon Cohen has shown) and not of spying, as Mr. Dershowitz writes. There is an essential difference here.
6) Amos Kenan: What Mr. Kenan said about me is his opinion. My opinion of him, I keep to myself. As for the facts: I have met Amos Kenan only casually, on two occasions, in a coffee bar. We talked on matters of no importance whatsoever. How can Amos Kenan claim even to know about my opinions since he cannot read Arabic and has never had a serious conversation with me? Since the short articles I have written in Hebrew are not sufficient for that purpose, I must assume that Mr. Kenan learned of my opinions from his own “intelligence agent.” Mr. Dershowitz quotes him as saying: “In any event, I am an Israeli and therefore I have a special obligation to be critical of my government.” I don’t want to argue too much with my countrymen, but why does Mr. Kenan have the right to be critical of my government and not I? I am also an Israeli, and the government is mine, too—even if I oppose it and don’t agree with it. Is criticism allowed to Jews and denied to Arabs?
7) Further points: I am very much surprised that Mr. Dershowitz was allowed to visit me in prison. Many others were refused. Two requests by Shalom Cohen, a member of the Knesset, were turned down. Uri Davis, a leader of the Israeli pacifists and vice chairman of the Israeli League for Human Rights, was also refused. Even my lawyer, Mrs. Josepha Kafri, was for a time refused permission to meet with me because—so the authorities claimed—she was also a personal friend who knew me prior to my arrest. . . . Why was Mr. Dershowitz the only one allowed not only to visit me but also to interview me? Was it because one could assume in advance what the nature of his report would be?
How did Mr. Dershowitz learn that Rakah [the Arab Communist party] wants to destroy the State of Israel? Rakah, which is a legally registered party, is explicitly on record as favoring the existence of the State of Israel. Rakah has three and not eight members in the Knesset. Moreover, it is a conservative pro-Soviet party and not one with “Maoist” tendencies, as Mr. Dershowitz states. . . .
I deny having said: “There is no one to talk to in Damon.” On the contrary, I was in the company of the most intelligent and well-educated people from Eastern Jerusalem.
I deny having told Mr. Dershowitz that “[I] could probably be released whenever [I] chose to be, that various influential people had offered to intercede on [my] behalf.” The only condition offered to me for release was that I leave the land of my ancestors forever.
I remain convinced that my detention was caused by my political position, and not for any other reason.
To the Editor:
As chairman of the Israeli League for Human and Civil Rights, I would like to comment on the matters raised by Alan Dershowitz states. . . .
To begin with, Mr. Dershowitz’s . . . representation of Felicia Langer as Fawzi’s lawyer is not only an outright lie but a vicious smear, since Mr. Dershowitz, the worthy successor of Senator Joe McCarthy, is careful to note that Mrs. Langer is a Communist, while Fawzi’s real lawyer is not a Communist. Mr. Dershowitz also says that “in each instance where I could, I checked these often conflicting versions with third parties or documents.” Then perhaps he can explain how he checked his most important case without contacting the lawyer at all? . . .
Now to pass to more general matters.
1) Mr. Dershowitz’s favorable description of the living conditions in Damon Prison: At the time of Mr. Dershowitz’s visit, and now too, hundreds of other prisoners were being held in preventive detention, under very different conditions. In fact, Damon is nothing but a showcase prison for visiting dignitaries. Why didn’t Mr. Dershowitz visit the notorious jail of Shattah near Beit-Shan where Na’im el-Ash’hab has been held for twenty-eight months in preventive detention, and has been kept in solitary confinement for the last thirteen months? Why didn’t he visit the preventive-detention prisoners held in Ram-leh Prison under conditions much worse than those of condemned criminals? Why didn’t Mr. Dershowitz investigate the custom of putting an Arab preventive detainee into a cell with Jewish criminals, who are encouraged by the prison authorities to beat him up, and sometimes to assault him homosexually? . . .
2) In spite of what Mr. Dershowitz claims, the main purpose of preventive detention is political and has no conceivable connection with any acts of terrorism. To cite just one example: before the last Israeli elections, about 1,200 Arabs were put into preventive detention for periods of four to six weeks and were freed immediately after the elections. . . .
Of course, preventive detention, sanctioned originally by the Emergency (Defense) Regulations of the now defunct British Mandatory Power, is not the only method of oppression which is used against the Arabs. The government can starve an Arab family by exiling the breadwinner so he cannot find work, or by doing the reverse and restricting him to his village, if most of the work is to be found outside it. Lawyers restricted to Nazareth, for example, cannot appear in courts which are situated in (Jewish) Upper Nazareth, and they have to request a special permit for each court session they wish to attend. . .
By such means the government has controlled the Arabs in peace and in war, but preventive detention has always been the chief weapon of oppression, and Mr. Dershowitz’s claim that preventive detention was little employed before 1967 is simply false. It was always used extensively against Israeli Arabs, which proves its connection with party politics and its lack of connection with Israel’s security.
3) Mr. Dershowitz claims that 99 per cent of Israel’s 300,000 Arab citizens have no restrictions placed on them and that there is “no legal discrimination against them.” Let me begin with the smallest thing: the price of tobacco. By government regulation all tobacco growers are required to sell their output to one monopolistic body, and the government sets the prices. The current price for 1 kilogram of tobacco of the usual quality depends on the nationality of the grower. An Arab gets 3.80 Israeli pounds, and a Jew gets 5.00 pounds for the same tobacco!
But more importantly, isn’t Mr. Dershowitz aware of those areas and cities in which it is officially forbidden for a non-Jew to dwell or to open a business? Carmiel in Galilee (built on confiscated Arab land) is one such area . . . and I can mention many others: Upper Nazareth, Arad, Dimona. Doesn’t Mr. Dershowitz know that almost all the land in Israel belongs to the Keren Kayemet (the Jewish National Fund), and in consequence, and by law, no Arab can buy, rent, dwell on it, or be permitted to work on it? Has he not heard about “Present-Absent” (nifkadim-nokhehim)? Under this maneuver, many Arabs “present” in Israel, even those with voting rights, have nevertheless been declared legally “absent,” so that their lands, and their dwellings, could be confiscated and given to Jews. I shall cite but one example: the village of Um elFahem. This village was transferred to Israel by the Jordanian authorities in accordance with the Rhodes Agreement (April 3, 1949), in which Israel agreed to respect the freedom and the property of the inhabitants. The property was respected in the following way: the original 130,000 dunams of land now consist of 7,000 dunams, the poorest of the lot. The rest was confiscated and Kibbutz Tzur-Nathan now occupies much of this land. . . .
4) Mr. Dershowitz also maintains that Israeli Arabs “enjoy the full rights of citizenship.” . . . Rakah is the only party or organization with Arab membership which is not under strict control of the government or the Zionist parties. . . . And even so, Arabs who join this party are relentlessly persecuted. . . . But the sin of the Arab who tries to form other, independent organizations is considered even heavier. . . . Independent Arab organizations have always been broken, and individual Arabs who have tried to join non-Zionist organizations like Matzpen have also been harassed.
5) Contrary to what Mr. Dershowitz says, the Israeli practice of preventive detention is much worse than the British one. . . . I most emphatically deny Mr. Dershowitz’s contention that the “rules” he says he was given about the use of preventive detention (he admits that they are secret) describe the situation. Either he has faked the rules he describes . . . or somebody faked them for him. The advisory committee he refers to is chosen by the military authorities from among the most abject yes-men, . . . mere rubber stamps who almost automatically approve everything that is brought before them and who habitually disregard the gravest and best-founded accusations of beatings and tortures. . . .
Although I could cite many more examples of Mr. Dershowitz’s hypocrisy, lack of knowledge, and even outright distortions, I shall end my rebuttal here. Mr. Dershowitz is not really important in himself, but unfortunately his attitude is typical of several American Jews I have encountered in Israel: their liberalism is, and always was, a fake. . . .
In closing, therefore, I should like to say to American Jews: You cannot continue in this way. You now have the same choice that was once given you on Mount Carmel: “How long will ye halt between two opinions? If the LORD be God, follow Him, but if Baal, follow him” (Kings I, 18:21). And similarly now: If you believe in the same justice for Arabs that you demand for yourselves and for your brothers in the USSR, raise your voices and fight for the human rights of the Arabs in Israel in exactly the same way. If not, go and worship military force, bow low to Phantoms and tanks, accumulate money—and go to hell.
Alan M. Dershowitz writes:
When I began my research on preventive detention in Israel, I was advised—both by critics and supporters of the government—to speak with Felicia Langer. I was told that she was the lawyer for a majority of the detainees and that she was the most knowledgeable critic of the system. A number of the detainees at Damon Prison—including Fawzi El-Asmar—also urged me to speak to Mrs. Langer. Mr. El-Asmar referred to her as “our lawyer.” Accordingly I arranged an interview in her home in Ramat Gan where we spoke for several hours. A considerable part of our conversation dealt with Fawzi’s case, with which she was completely familiar. The name of Josepha Kafri never came up. The other “facts and views” which I attributed to Mrs. Langer also came out in this conversation and in another interview I had with her law partner, Ali Rafi, in their law office in Jerusalem.
I mentioned Mrs. Langer’s membership in the Communist party (a fact of which she is most proud) in the context of criticizing the Israeli bar for not having a tradition, like our own, under which prominent Establishment lawyers are willing to defend people whose views they despise. I also mentioned it to show that Communist lawyers are permitted more freedom to practice their profession in Israel than in this country.
Fawzi El-Asmar claims that I was accompanied on my visit to Damon by a “plainclothesman.” The person to whom he refers was a young law student named Moshe Gottesman who was my research assistant (selected by me, not the government). While at Damon I first interviewed Mr. El-Asmar alone; then we went into a room where I spoke to him and to the other detainees. The governor of the prison was not in the room while we talked; Gottesman was; and the lady social worker was there some of the time (she served as one of the translators for those detainees who could not speak English; the other translator—selected by the detainees—was Ibraham Gannaim, another Israeli-Arab detainee).
I have no personal knowledge of whether I was the only visitor allowed into the Damon detention center during Mr. El-Asmar’s stay. Dr. Shahak’s statement that “Damon is nothing but a showcase prison for visiting dignitaries,” suggests a contrary view. In any event, no one in the Israeli government knew “in advance the result of [my] interviewing.” Indeed, I left Damon very much impressed with Fawzi El-Asmar and his story. My inclination, at that point, was to write an article far more critical of Israel’s detention policy than the one I ultimately produced. It was only after further research that I became convinced that Mr. El-Asmar and the others were being detained for their terroristic acts rather than their political views.
I simply do not understand what Mr. El-Asmar means when he says that my “most obvious deception” is the use of the term “preventive detention” instead of “administrative detention.” I explicitly pointed out in my article that the “literal translation of the Hebrew term is administrative detention,” and that the words “administrative” and “preventive” are used interchangeably when the subject is discussed in English. If anything, “preventive detention” probably sounds harsher to American readers than “administrative detention.”
Mr. El-Asmar argues that his release after a year and a half is the best proof that he was never regarded as dangerous. But, as he well knows, it is part of the Israeli policy in administrating their detention law to free everyone—regardless of how dangerous—after a reasonable time. Indeed, I now have information indicating that many of the other detainees whom I saw at Damon have also been released; as of February 1971 the number of Israeli citizens in preventive detention was down to fifteen, as compared with twenty-three while I was conducting my research. (The number of preventive detainees from Jerusalem and the West Bank is down to 484, as compared with more than 1,000 when I was there.) Israel’s rejection of long-term confinement reflects the kind of compromise between security and liberty that runs through the nation’s entire approach to terrorism.
Mr. El-Asmar did tell me, despite his present denial, that a high official indicated a willingness to intercede in his behalf. My notes indicate that he specifically referred to the “Minister of Post.” He also told me that intellectuals were not being detained and that most of his fellow detainees were simple people and illiterate. (Ibraham Gannaim estimated that there were twenty “unalphabetim”—illiterates—in the detention wing.)
I was mistaken about the number of Rakah members in the Knesset, but not—I believe—about its nature. Mr. El-Asmar’s characterization of Rakah as “conservative” reveals more about him than it does about the party.
It is not surprising, of course, that Mr. El-Asmar is attempting to put the facts of his case in a light most favorable to his claim of innocence. It is always possible—though, in my view, highly unlikely—that he was, in fact, innocent of any wrongdoing. It is precisely this possibility—slim as I think it is in the cases studied—that led me to conclude my article by favoring repeal of the Emergency Defense Regulation, while recognizing the risks that this would entail.
Dr. Shahak faults me for focusing on the conditions in Damon (which he calls a “showcase prison”). Let me make it clear that I was given permission to visit any and all prisons in Israel and in the occupied territories; absolutely no restrictions were placed upon me. The reason I focused on Damon is that Damon is where virtually all the Israeli detainees are kept, and it was about them that I was writing. (Nairn el-Ash’hab, who is in Shattah Prison, is not an Israeli citizen.) There is simply no truth to the “custom” Dr. Shahak describes—“putting an Arab detainee into a cell with Jewish criminals, who are encouraged by the prison authorities to beat him up, and sometimes to assault him homo-sexually.” Detainees are kept separate from other prisoners. Indeed, the former have their own courtyard and dormitories. And none of them complained to me about treatment of the kind alleged by Dr. Shahak. Nor does Fawzi El-Asmar allege this kind of treatment in his letter.
Dr. Shahak’s claim that preventive detention “has no conceivable connection with any acts of terrorism” is also based on misinformation. Even some of the detainees told me—bragged to me—that they were involved in terrorism. My notes reveal, for example, that Mohammed Hassan Diab, a thirty-five-year-old detainee, told me that he “enrolled to PLF” on November 16, 1969, and was sent on a mission to Nablus to “get explosives.”
The men I saw at Damon were mostly illiterate and certainly not political prisoners in the usual sense of that term. Moreover, if “the main purpose of preventive detention is political,” then why has the government not used it against its Jewish political opponents (of which there are many who are more vitriolic and politically dangerous than the Arab detainees)? The answer is that Jewish political opponents have not resorted to terrorism; and preventive detention—as practiced in Israel—is a technique for the control of bomb-throwing, not word-throwing.
Dr. Shahak claims that before the last election, 1,200 Arabs were detained for a number of weeks and freed immediately after election day. I checked on this rumor when I was in Israel and found it not to be true. There was some increase in the number of Arab-Israelis detained prior to the election, but there had also been a very considerable increase in terrorism at that time. The number of Israeli-Arabs detained at any given time has always borne a direct relationship to the incidence of terrorism and not to the vicissitudes of politics. Thus, the reason that the number of detainees is currently near an all-time low since the Six-Day War, reflects the low incidence of terrorism over the past eight months. Some Israeli-Arabs were subjected to preventive detention for a short time during the 1956 war, but Dr. Shahak’s undocumented assertion that it was employed extensively during elections before 1967 is simply not true.
Dr. Shahak makes numerous allegations of economic and land-ownership discrimination against Arab citizens of Israel (a subject not covered in my article). Some of his allegations are simply false. For example, Arab families can and do live and work in some of the areas he mentions, such as Upper Nazareth and Dimona. Other of his allegations are misleading. For example, Jews and Arabs receive the same price from the government for tobacco, but the Jewish Agency pays a subsidy for tobacco grown by new immigrant villages. Some of Dr. Shahak’s allegations do, however, contain a disturbing kernel of truth. Israel has not always treated its Arab citizens fairly with regard to land ownership and use. Concerned civil libertarians—Israeli, Arab, and American alike—should not shy away from fairly and candidly exposing injustices in these areas. But overstatement, distortion, and outright fabrication—of the kind engaged in by Dr. Shahak—do not contribute to the cause of justice.
Dr. Shahak’s charge that there is no political freedom among independent Arab organizations is absurd. I have read various Arab newspapers and pamphlets—openly circulated in Israel and in the occupied territories—which criticize the Israeli government (and people) in the most extreme (and even vile) language. For every one of the fifteen Arab-Israelis detained in Damon, there are hundreds of vocal political organizers freely calling for Arab victory, the destruction of the Zionist state, and the expulsion of Jews from Palestine. I still maintain that no embattled country—including our own—has ever permitted so much political freedom in so dangerous a situation.
Dr. Shahak’s undocumented assertion that “the Israeli practice of preventive detention is worse than the British one” is truly incredible. The British—in the interests of nothing more compelling than simple colonialism—detained many more people, on the basis of far less convincing evidence, for considerably longer periods of time, and at substantially greater distances from their homes. . . .
Dr. Shahak’s accusation that I “faked” the administrative rules governing detention (or, more generously, that someone else “faked” them for me) is a most serious charge. I have in my possession a copy of the rules which were sent to me by the Judge Advocate General of the Israeli Army That they are indeed the actual rules applied in detention cases was confirmed by numerous lawyers involved in such cases (including some vocal opponents of the government).
Dr. Shahak’s description of the detention advisory committee as a group of “abject yes-men” and “mere rubber stamps . . .” is a gross overstatement. I personally wish—as I suggested in the article—that there were more probing judicial review of detention orders. However, my conversations with Supreme Court Justice Alfred Witkon, who sat on the advisory committee for many years, convince me that it is far from a mere rubber stamp. No one who knows Justice Witkon could possible consider him a “yes-man.” He is a courageous, independent, and scrupulously fair judge.
One final word: In my article I tried to present a fair picture of how a democratic society faced with real danger from within and without has coped with the task of balancing the interests of liberty and security. I concluded by disagreeing with some of the measures adopted by Israel, but—at the same time—by recognizing that no country had ever preserved so much liberty while facing comparable dangers. Dr. Shahak writes as if there were no threat of terrorism—as if the explosions at Machane Yehuda and the Supersol were contrived by the government for the purpose of curtailing liberties. Some Israeli government officials, on the other hand, speak as if there were no restrictions on civil liberties. Neither view is correct. Civil liberties have, in fact, been curtailed in the face of a genuine threat of terrorism. And it is essential, in my view, that civil libertarians continue to advocate an expansion of freedoms even during these times of crisis. The tragedy is that shrill and intemperate voices—like that of Dr. Shahak—often drown out the voices of reasoned criticism.