Terrorism & Preventive Detention: The Case of Israel
I sit in preventive detention.
The reason, sir, is that I am an Arab.
An Arab who has refused to sell his soul
who has always striven, sir, for freedom.
An Arab who has protested the suffering of his
who has carried with him the hope for a just
who has spoken out against death in every corner
who has called for—and has lived—a fraternal
That is why I sit in preventive detention
because I carried on the struggle
and because I am an Arab.
The author of these lines is Fawzi al-Asmar, a thirty-one-year-old Arab citizen of Israel. He used to write his poems at home in Lydda near the Tel Aviv International Airport. Now he writes them in Damon Prison overlooking Haifa Bay.
Fawzi is one of twenty-three Israeli Arabs being held in preventive detention by the Israeli military authorities. As practiced in Israel, preventive detention1 is different from the law of the same name recently proposed by President Nixon and enacted by Congress. The American law authorizes the pre-trial confinement of criminal defendants thought likely to commit serious crimes between the time of their arrest and their trial. The Israeli law permits the imprisonment—without limit of time—of “any person” whose confinement is deemed “necessary or expedient . . . for securing the public safety, the defense of Palestine, the maintenance of public order, or the suppression of mutiny, rebellion, or riot.” Though different in purpose and in effect, both laws have an important element in common: they permit the detention of persons who have not been convicted of any crime.
The Israeli Knesset has never enacted a preventive-detention law. The power to detain derives from a series of Emergency Defense Regulations inherited by Israel from the British Mandatory Government. Ironically, these regulations, originally promulgated in 1937, were directed at the Jewish underground then operating against the British. Many Jewish freedom fighters—including Golda Meir, Moshe Dayan, and others in the present Israeli government—were detained between 1937 and 1948 (as their entries in Who’s Who proudly proclaim).
During the Mandate period, the Jews bitterly opposed preventive detention. The Federation of Hebrew Lawyers convened a protest convention at which they vowed to do everything they could “to abolish the emergency regulations and restore the elementary rights to the individual.” In 1948, however, when Israel was established as a state, the emergency regulations—including preventive detention—remained on the books, to be used sporadically until the Six-Day War of 1967 and more extensively after Israel’s victory and the resulting occupation.
Many Jews in Israel still oppose preventive detention, even though it is now their government which employs it. The New Left (known in Israel as Siah) has seized on the case of Fawzi al-Asmar as the symbol of what they claim to be political repression of Arab intellectuals. Wherever preventive detention is discussed in Israel, Fawzi’s name is likely to be invoked by its critics.
Having long opposed preventive detention in America.2 I was greatly troubled when I learned of its use by the Israeli authorities. While in Israel, therefore, I decided to try to interview Fawzi and to learn all I could about why he and the other Israeli Arabs were being detained. When I set out for Damon Prison, I was doubtful whether the authorities would let me talk to him or whether he would be willing to speak to me. I had called his lawyer—Felicia Langer, a Jewish Communist who represents many detainees—and asked her to arrange an interview. She laughed: “They won’t even let me see him about legal matters.” I had called the Bureau of Prisons, which granted me permission to tour the facility and see the area where the detainees are held, but nothing had been said about interviews.
When I arrived at Damon—which boasts one of the most beautiful views in Israel—I was shown what I am usually shown at prisons: kitchen, showers, cells, ping-pong tables. Then I was taken to the special area where the preventive detainees are separately kept. It was a spacious square courtyard surrounded by three large dormitories and a dining area. The detainees—twenty-three Israeli citizens and seventeen from East Jerusalem—were sitting around in small groups. Most of them were young, in their twenties and thirties. They were not dressed in prison garb (a number were wearing Arab burnooses) and they were not behaving like prisoners. There was no genuflecting before the warden; they made demands, rather than requests. And not a few times I heard remarks prefaced with, “Remember, we’re not prisoners. . . .”
I walked among the inmates and asked for Fawzi. A tall man emerged, strikingly handsome with a captivating smile. Looking more mature than his thirty-one years, Fawzi emitted an aura of confidence, determination, and honesty. I could tell, both by looking at him and by the way he behaved with the other inmates, that Fawzi al-Asmar is a leader of men.
I told Fawzi that his name had been given to me by critics of preventive detention and that I wanted to hear his story. He put an arm around my shoulder and led me toward the empty dining hall where we began to talk. The governor of the prison made no objection and even provided me with a private room in which I later spoke to other detainees.
I asked Fawzi why he was being detained. He looked me directly in the eye and said, “Because I am an Arab.” But there are 300,000 Israeli Arabs, I observed, and only a few handfuls are in prison; why were you singled out? “Because I express the feelings of the 300,000 and that makes me dangerous. There are Jews who share my beliefs, maybe even some who express them better. But they are not dangerous because they are Jews, and no Arab will listen to them. That is why I am being detained, and not Meir Vilner [the Jewish head of Rakah, the Arab Communist party which advocates the destruction of Israel].”
I asked him what the Israeli authorities had accused him of when they detained him thirteen months earlier. He said that they had concocted a story about his being a terrorist organizer. This time I looked straight into his eyes and asked: “Were you a terrorist organizer?” He smiled: “If they could have proved it, they would have brought me to trial.”
Did he support Al Fatah? “I support their ideas, but not all of their means.” Would he harbor a terrorist fugitive? “None has ever sought refuge with me, and that is the kind of question one must answer with his heart, not his lips. I cannot know what I would do until I hear the knock on the door.”
Fawzi had few complaints about conditions in the prison. He writes all he wants to—poems, articles, letters—but he has not tried to publish his prison writings. His greatest complaint is that there is no one to talk to in Damon. I asked him if there were any truth to the charge that Israel is using preventive detention against Arab intellectuals. He laughed and said, “If only that were true, at least I would have someone to talk to. Most of those detained are simple people, half of them can’t read or write. There used to be a lawyer here and we talked, but he’s been freed.”
I asked him why Israel was detaining illiterates; surely not for their political activities? Were they terrorists? “No,” came his quick reply, “most of them are here as the result of family quarrels and personal vendettas. If two families are feuding in a village, one will sometimes go to the Israelis and make up a story that someone in the other family is working with the Fatah.”
I asked how he saw the rest of his life unfolding. Would he remain in detention indefinitely? Did he’ intend to leave Israel after his release? He told me that he could probably be released whenever he chose to be, that various influential people had offered to intercede on his behalf, but that he did not want “special treatment.” No, he would never leave the country. “That’s just what Israel wants me to do—go away. Twice they offered to free me if I would leave. But this is my homeland. I would rather write my poetry in Damon than in Paris.”
As I was leaving, he told me that he was a man of the pen, not of the lips, and that his views on preventive detention were best expressed in two poems he had just written. I asked to read them. He doubted the authorities would allow that. I asked the governor of the prison, and without having seen the poems, he said that Fawzi was free to give me any writings he cared to. One poem, written in Hebrew, appears at the beginning of this article. The other, composed in Arabic, reads as follows:
I would not despair:
Even though my only way is within a jail,
Under the sun,
In the Exile—
I would not despair:
I would not choose but the Right as a realization,
For my right is that we behold the sun,
Destroy the black tent and the banishment,
Eat the fruit of the olive,
Irrigate the vineyard,
Sing melodies, melodies of love,
In the quarters of Jaffa and Haifa,
Sow our green soil with seeds;
Since these rights are mine,
I would not choose but the Right as a refuge.
My way is that we would extend hand to hand,
In order to build a castle of dreams,
Full of flowers,
Without unwise manners,
Since this is my way,
And even if the cost,
Of my adherence to my way,
Is to sacrifice the lids of my eyes,
And my soul,
I would pay,
And would not despair!
Meir Shamgar, the Attorney General of Israel, denies that Fawzi’s way is to “extend hand to hand” or that he is being detained because he is an Arab. “He is being detained because he is a terrorist leader who would kill innocent people if he were free. Sure he is a poet, but the cloak of a poet can sometimes conceal deadly bombs.”
Shamgar, a career legal official who was formerly Judge Advocate General of the Army, knows all there is to know about preventive detention and about terrorism. He has literally been on both sides of the wall. As a young man, he was a member of Irgun Zvai Leumi (known in the U.S. as the Irgun and in Israel as Etzel). Under the leadership of master terrorist Menahem Begin (now the head of Gahal, the right-wing party which recently left Mrs. Meir’s government), the Irgun’s raison d’être was to make life so miserable for the British that they would leave Palestine. Among their most notorious accomplishments was the blowing up of the English High Command Headquarters in the King David Hotel. Although Begin himself eluded capture, Shamgar was caught and detained without trial by the British under the very same regulation which authorized Fawzi’s confinement. Shamgar remained in British detention camps, both in Palestine and in North Africa, for more than four years. (After telling me about his career as a terrorist, Shamgar reminded me, in a tone of humorous warning, that the Emergency Defense Regulations, which have never been altered, still have a provision punishing anyone who has contacts with a “member of . . . Irgun Zvai Leumi.”)
Nor was preventive detention used against Shamgar’s comrades-in-arms only by the British. Within weeks after Israel declared its statehood, a half-dozen Irgunites were detained by the new Jewish government in order to head off an insurrection threatened by the arrival of the “Altalena,” a ship packed with weapons earmarked for the Irgun rather than the Haganah. In the fall of 1948, preventive detention was again used by the Israeli government against another group of Jewish terrorists. Following the brutal murder of Count Folke Bernadotte, about a hundred members of Lohamei Herut Israel (known in the U.S. as the Stern Gang, and in Israel as Lehi) were detained for a number of months. During the next four years, preventive detention was twice again employed against Jewish groups: first against an ultra-Orthodox religious organization that was allegedly plotting to plant a smoke bomb in the Knesset; and then against leaders of an organization suspected of bombing two embassies.
Since 1953, preventive detention has not been used against any Jewish group. Indeed between 1953 and 1967, it was hardly used at all; and when it was, it served primarily as a short-term “holding operation” against suspected spies until it could be decided whether to deport, to try, or to exchange them for Israeli spies.3 These were years of relative quiet for Israel, during which numerous attempts were made to repeal, or at least to modify, the Emergency Defense Regulations. When Ya’akov Shimshon Shapiro, the incumbent Minister of Justice, assumed his position in 1966, he convened a committee to study the regulations with an eye toward repeal. (Shapiro had repeatedly expressed disapproval of these laws while in private practice.) The committee was leaning in that direction when the 1967 war forced the government to turn its attention to more pressing concerns.
Israel’s victory, accompanied by its occupation of Judea, Samaria, and Gaza, brought about an almost immediate increase in terrorist activities. Israeli Arabs, who had been cut off from direct contact with Jordanian Arabs (except through television which respects no political borders), began to mix freely with Arabs from the West Bank. Indeed, under Israel’s “open bridge policy,” they were able to establish contact with Arabs from the East Bank as well.
Israel’s unwillingness to seal the borders resulted not only in a free exchange of views; it also brought about a traffic in weapons and explosives. Now, for the first time, those Israeli Arabs who had preached terrorism could obtain the materiel with which to practice it. The Israeli authorities, who had always tolerated advocacy of the most extreme ideas, now had the job of keeping potential terrorists from practicing what they had been preaching.
Among those who had been preaching the most extreme measures, was the family of Fawzi al-Asmar. Fawzi’s mother was also a poet famous for her anti-Israeli writings. His father had been in trouble with the authorities even before the Six-Day War, having made illegal contact with an Arab government. Fawzi’s brother was recently convicted of being a Syrian spy and sentenced to a term of imprisonment. But what about Fawzi himself? Shamgar arranged for me to meet with the chief of the Shin Bet’s Arab section in order to learn some details of the government’s case against Fawzi.
The Shin Bet is Israel’s small, but highly respected, counter-intelligence organization which is responsible for compiling the dossiers on detainees. The chief, whose name I never learned, was a warm and friendly man in his late forties who, like most Israelis of every rank, wore sandals and an open shirt. He explained the procedure employed in building a case for detention. No piece of information is ever relied upon unless it is corroborated by at least two independent sources. “We know about these family quarrels. We don’t want to waste our resources on somebody who is the victim of a grudge.” He brought out a pile of thick files and laid them on the table. I picked out a few at random for him to go through. He showed me how each important allegation is corroborated in various ways, how each piece of the puzzle is locked into place.
The file on Fawzi was voluminous and extremely convincing. In every instance where I could, I myself checked the details with independent sources. Here—on the basis of what I was told by various officials and my own investigation—is what I believe to be the truth about Fawzi al-Asmar.
Early last year, the Israeli army caught an Arab attempting to make an illegal crossing over the Jordan. On his person was discovered a number of papers. One was a coded message to a named person in a city on the West Bank. When decoded, the message proved very revealing: it was a detailed series of instructions to the leader of a terrorist group based in that city. The army went to the courier’s destination and discovered an enormous cache of weapons and explosives in the home of the intended recipient and sixteen of his associates. They were all subsequently tried, convicted, and sentenced to prison terms.
While this raid was in progress, the search of the courier’s effects continued. Another seemingly innocuous piece of paper was found. It turned out, however, that this paper contained a message written in invisible ink. This paper, when processed and decoded, sealed Fawzi’s fate. It was an instruction to a named person to contact one Fawzi al-Asmar in Lydda about various terrorist activities to be carried out by “the group that he has under his control.” Among the activities described in the message was the assassination of certain individuals.
Despite this information, Fawzi was not yet detained; he was placed under surveillance. Over the next weeks, a number of events occurred which made it plain to the Israelis that more stringent measures would have to be taken: two of those slated for assassination in the instructions turned up dead (apparently duplicate messages had been sent with other couriers); the “middle man” who was supposed to deliver the message to Fawzi was interrogated and said that although he had never met Fawzi, he knew from others that Fawzi was “very active in the field of sabotage and terrorism”; he also said that but for his arrest he would have contacted Fawzi pursuant to the instructions. Finally, the Shin Bet received corroboration from an Israeli agent who said that he had heard directly from a Palestinian commander in Jordan that Fawzi had been active in assassination and terrorism since the end of the Six-Day War. As a result of all this information, Fawzi was detained in Damon Prison where he remains to this day.
The case of Fawzi al-Asmar puts the problem of preventive detention into sharp focus. If the Israeli information is correct, then Fawzi is, to say the least, an extremely dangerous man whose freedom might result in countless deaths and injuries. And the information does seem correct. That the Arab caught crossing the Jordan was a bona fide courier is evidenced by the discovered cache and the conviction of the terrorist group; that the messages found on him were genuine is evidenced by the death of two of those marked for assassination; that Fawzi was not the innocent recipient of a message he knew nothing about is evidenced by the statement of the man who was to contact him and corroborated by the agent’s report of his discussion with the commander in Jordan. (It is, of course, possible that the entire file was contrived by the Shin Bet. My own investigation convinces me that this was not done, though I cannot, of course, vouch for the authenticity of every piece of information in the file. I am personally convinced, for whatever that is worth, that Fawzi al-Asmar is the leader of a terrorist group.)
Yet even with this apparently tight web of evidence, it would have been quite impossible—under Israeli law—to charge Fawzi with a crime and bring him to trial. The courier’s document—dramatic as it is—would be inadmissible hearsay; it is merely the statement of an unknown person somewhere in Jordan that Fawzi was the head of a terrorist group. The statement of the “middle man” would also be inadmissible hearsay, since he knew of Fawzi’s activities from others; in any event, he refused to repeat his statement in open court for fear of his life. (Numerous “collaborators” have, in fact, been killed by Arab terrorists.) The Israeli agent from Jordan could not, quite obviously, be brought into court (even if the power of subpoena extended across the Allenby Bridge).
What then are the options available to a democratic society in a case, like this one, where it seems fairly clear that the suspect is indeed a dangerous terrorist but where a criminal trial under the usual rules of evidence is precluded?
One obvious option is to follow the rules wherever they take you. If Fawzi cannot be tried and convicted under the established rules of evidence, then he must be released no matter how dangerous he is thought to be. This is what we in the United States do—at least in theory—in ordinary criminal cases: if a suspected murderer cannot be convicted because his confession was coerced or because the weapon was discovered unlawfully, he is supposed to be released. Often, however, ways are found to keep the dangerous defendant in confinement despite the absence of a criminal conviction: if he has “homicidal propensities” he may be committed to a mental hospital; if his crime has sexual overtones, he may be confined as a sexual psychopath; even if he must eventually be released, he may be held in pre-trial detention for a year or two before his acquittal. It is true, of course, that some suspected murderers are in fact released even though they are thought to be extremely dangerous.
In times of war, however, the United States does not even purport to follow the usual rules of evidence when these rules would lead to the release of suspected spies or saboteurs. During both world wars we had—and still have—special administrative procedures for detaining dangerous people who could not be convicted of crime under the established rules of evidence. During World War II we used administrative tribunals not only to detain; we actually used them to execute suspected enemy agents.4 I am not aware of any country in the world that follows the customary rules of evidence during wartime, when those rules would lead to the release of persons who are known to have committed—but who could not be convicted of—serious acts of sabotage, espionage, or terrorism. As one high court correctly observed: “Preventive justice . . . is common to all systems of jurisprudence,” especially during times of war or national emergency.5
And Israel today is a country at war. Although a cease-fire is currently in effect between Israel and some of the Arab states, Israel is at war with various nations and also with the growing Palestinian terrorist organizations. The war with the Palestinians is being fought not only on Israel’s borders, but also in its marketplaces, its cinemas, its bus terminals, and its civilian airplanes. The fear of a bomb planted in a crowded location is ever-present. The security guard who looks into the purse of every woman entering the concert hall and the Supersol is a constant reminder of the Palestinian terrorists’ boast that every Arab living in Israel is carrying a bomb in his heart and perhaps in his pocket.
It is interesting to recall how our country reacted when we thought we faced a similar situation after the Japanese attack on Pearl Harbor in 1941. At that time there were about 110,000 Americans of Japanese ancestry living on the West Coast, of whom 70,000 were American citizens (virtually all of them born here, since residents who emigrated from Japan were ineligible for American citizenship under the racial prohibitions then on our statute books). A virulent anti-Japanese hysteria followed Pearl Harbor. Rumors were circulated that Hawaiians of Japanese ancestry were signaling enemy pilots and submarines; that Japanese-Americans had intentionally infiltrated the power and water companies; and that they had formed sabotage and espionage rings numbering in the thousands. In fact none of these stories proved true. The records of “the Federal Bureau of Investigation and Army and Navy intelligence indicate that there was not a single instance of espionage or sabotage by a resident of Japanese ancestry before, during, and after World War II. . . .”6 The absence of such activities did not, however, satisfy a hysterical population with deep-rooted racial antagonisms. Indeed Earl Warren, then Attorney General of California, expressed the Alice-in-Wonderland view that it was the very absence of sabotage that was “the most ominous sign in our whole situation.” It convinced him, he said, “that the sabotage . . . the fifth-column activities that we are to get, are timed just like Pearl Harbor,” and that the present inaction by the Japanese-Americans was designed to lull us “into a false sense of security.”7
The various intelligence agencies—the FBI and army and navy intelligence—preferred to approach the problem of potential terrorism and espionage “on the basis of the individual, regardless of citizenship, and not on a racial basis.” This was what was done with persons of German and Italian extraction on the East Coast. Thousands of aliens “regarded by the Attorney General as dangerous to the national security if permitted to remain at large” were preventively detained on an individual basis. But on the West Coast the prevalent attitude was reflected by General De Witt, head of the Western Defense Command: “A Jap’s a Jap. There is no way to determine their loyalty. . . .” Earl Warren agreed: “We believe that when we are dealing with the Caucasian race we have methods that will test their loyalty. . . . But when we deal with the Japanese . . . we cannot form any opinion that we believe to be sound.”8 Accordingly, the decision was made to confine the entire West Coast population of Japanese-Americans; 109,650 men, women, and children were put in detention camps where they remained for nearly the entire war. Virtually no exceptions were made; those detained included veterans of World War I, future soldiers who would die fighting in the famous 442nd Regimental Combat Team (the “Nisei Brigade”), and life-long members of the American Legion (whose monthly publication advocated “putting American Japanese on some Pacific island”).
Liberal opinion in the United States was extremely critical of the detention of the Japanese-Americans on racial grounds. Prominent leaders of the American Civil Liberties Union urged President Roosevelt “to constitute a system of hearing boards to test the loyalty” of individual citizens and non-citizens. Those Justices of the Supreme Court who dissented from the judicial approval given the exclusion and detention orders criticized the government for not treating “these Japanese-Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal as was done in the case of persons of German and Italian ancestry.” (Virtually no criticism was ever leveled against the preventive detention of the latter.) Academic criticism centered on our failure to detain Japanese-Americans “on the basis of individual suspicion,” and also on our unwillingness to adopt a system of graded restrictions—as the English and French did—whereby only the most dangerous were detained and others “were subjected to certain continuing restrictions especially as to their travel.”9
What the liberals in the United States urged that we do with our Japanese citizens is essentially what Israel has done with its Arab citizens. It has made an intensive effort to separate out the potential terrorists from the loyal Arab, or even the “merely disloyal” Arab. “We are not interested in loyalty,” I was told by the Minister of Justice. “We don’t care what they believe in their hearts; we care only about what they conceal under their clothing. Let them pray for Arab victory, as long as they don’t work for it.”
The Israeli authorities have divided their Arab citizens into four categories. The first covers the loyal and “merely disloyal,” which includes more than 99 per cent of Israel’s 300,000 Arab citizens. No restrictions are placed on them. They enjoy full rights of citizenship; they may live and travel where they wish (including the occupied territories); they may read the various anti-Israel newspapers published in Jerusalem and elsewhere; they may—as a considerable number of them do—belong to the Maoist-oriented Rakah party which has eight members in the Knesset.10 The fact that they are Arabs and that Israel is at war with Arabs has resulted in no legal discriminations against them (unless their not being subject to the draft is regarded as discrimination).
The Arab-Israeli is, to be sure, subject to some de facto discrimination. He is stopped more frequently at the road blocks which the Israeli police routinely set up at the entrance points to every large city. But if his identification is in order—every Israeli, Jew as well as Arab, must carry an identification card—he is politely sent on his way. And it is far more difficult for an Arab—even a loyal Arab—to get a job which has any connection with security (a word which has a broad meaning in Israel).
Thus, those Arabs who are not regarded by the security service as potential terrorists, saboteurs, or assassins, are subjected to no legal restrictions, even if it is known that their sympathies lie with the enemy. Even those who are regarded as potential terrorists are not all detained. The majority are simply told not to leave their city, town, or village without permission; within that area they are free to move about as they please by night or day. Permission to travel to other cities is routinely granted for business reasons and periodically for family and social reasons.
Those who are regarded as especially dangerous—a few hundred—are subject to further restrictions: they may not leave their homes during the hours of darkness without special permission (a kind of personalized curfew), and they must report daily to the local police station.
Only a tiny portion of potential terrorists—twenty-three Israeli citizens at the last count in August—are actually detained. (The number has never been more than 100.) The Israeli authorities claim that every one of those detained has, in fact, been involved in serious terrorist activities and that they could not effectively be prevented from carrying on future terrorism by restrictions less total than actual detention.11
If there are only two dozen Israeli citizens who are sufficiently dangerous to be preventively detained, would it not be wiser, I asked an Israeli official, to release them and take the risks of a few additional acts of terrorism? He responded by telling me the story of Leon Kanner.
Leon was a Hebrew University student who had recently emigrated to Israel from his native Uruguay. His family lived on a kibbutz where they worked in agriculture. Leon shared a small flat in Jerusalem with his friend Edward Joffe, a student who had been twice wounded during the Six-Day War. On the weekend of February 21, 1969, the boys were planning a “trip to the hills to pick flowers,” as Edward wrote to his parents. On Friday morning, the roommates went together to the Supersol at Jerusalem’s busiest intersection to do some shopping for their trip. The store—which is one of the largest in Israel—was crowded with women doing their pre-Sabbath shopping. As the boys approached the meat counter, an explosion ripped through the store. A bomb containing five kilograms of dynamite had been planted in a biscuit can. Both boys were killed instantly. Many women—including a survivor of Auschwitz—were seriously injured. On another Friday—the eve of the Jewish Sabbath seems to be a favorite time for terrorist activities—Al Fatah planted a massive charge of explosives in an automobile in Machane Yehuda, the always-crowded outdoor market in Jerusalem. Twelve shoppers were killed and fifty-two seriously injured.
These are the realities of living in Israel today. They are not rumors, like those which were used to justify our detention of the Japanese. Every Israeli knows a family that has suffered from terrorism, whether it was the blowing up of the Hebrew University cafeteria, the bomb in the Tel Aviv bus station, or the explosions in the Haifa apartment houses.12 A decision to release a known terrorist who cannot be brought to trial is viewed as a decision to risk the lives of dozens of civilians. Rightly or wrongly, these are the reasons why Israel will not—at least in the most serious handful of cases—follow the usual rules of evidence when these rules lead to release. Indeed, I was surprised that the Israeli population had not demanded detention for more of those under village restriction.13
A second obvious option available to a democratic country in a case like Fawzi’s is to change the usual rules of evidence—especially the often anachronistic hearsay rule—so as to allow the introduction of reliable information even if its direct source cannot be produced in court. If hearsay evidence were admissible, a conviction might very well be obtainable against Fawzi: the invisible-ink document could be introduced if the prosecutor established its authenticity; the statement of the man who was supposed to contact Fawzi could be admitted without his identity being disclosed; and even the communication from the agent in Jordan might be considered by the judge.
I asked a high-ranking Israeli legal official whether it would not be better to loosen up their hearsay and other evidentiary rules. “We are very proud of our civil liberties,” he told me. “It would be absurd to wreck our entire judicial system to accommodate a few wartime security cases.” But would you really have to wreck the system, I asked, couldn’t you just change some of the rules of evidence? “The rules of evidence lie at the center of our civil liberties and the right to confront your accuser is the heart of any fair system of evidence. If we created a rule allowing into evidence the invisible-ink message and the agent’s report, there would be virtually nothing left to the right of confrontation. I would rather see us act completely lawlessly in a few security cases than a little lawlessly in every case.” This official felt strongly enough to say that he would “resign in protest” if Israel ever changed its rules to allow hearsay evidence in the general run of cases.
A third option, and the one adopted by Israel, is to create a separate category of cases entirely outside of the judicial system; to handle them administratively; and to apply the flexible rules of evidence traditional in administrative cases. The basic reason why Israel opted for this approach is that the mechanism was there, fully blown; the law establishing this system was on the books of Israel, even though it had been inscribed by a British pen.14 There is no written Constitution in Israel under which the regulations could be invalidated, though one Supreme Court Justice, writing in dissent, would have struck down preventive detention as inconsistent with the judicial conscience (a phrase similar to the “shock the conscience test” sometimes applied by our Supreme Court).
The preventive detention regulation inherited from the British is written in the broadest possible terms. There are no restrictions on the military commanders’ discretion; no limits on the duration of detention; no rules of evidence; and no judicial review. The regulation does require that there be “one or more advisory committees [whose chairman] shall be a person who holds or has held judicial office or is or has been a senior officer of the government.” But the commander is under no legal obligation to follow the advice of the committee.
When the British administered this regulation in Palestine, they did so in the spirit in which it was written. It was a purely arbitrary grant of power to the military unlimited by narrowing rules or practices. The Israeli government, although it has left the broad language of the regulation unamended, has circumscribed it by a series of carefully drawn rules and established practices. Until now these rules were unpublished and regarded as secret (though lawyers had some idea of what they provided). After numerous requests, I was finally given a copy of them. Among other things, they explicitly remove the power to detain for more than three months from any military commander (as provided in the regulation) and give it solely to the Chief of the General Staff. In addition to the advisory committee required by the regulations, the rules establish an internal advisory committee which includes lawyers and professors; no request for a detention order may be made to the Chief of Staff unless a majority of the committee so votes. Another rule limits any period of detention to six months and requires a complete review at the end of this period. In addition, the advisory committee—which includes a Justice of the Supreme Court—is regarded as more than advisory; its advice has never been ignored by the Israeli military authorities in twenty-two years. What is most important, however, is not the language of the regulation or of the narrowing rules; it is the fact—and a fact that is not challenged by Arab or Jewish critics—that the number of Israeli citizens actually detained has been so impressively small.
Despite the fact that so few have been detained, there has been much criticism from students, journalists, leftists, lawyers, and—of course—Arabs. And the criticism has by no means emanated exclusively from the Left. Hans Klinghoffer—the intellectual leader of the right-wing Gahal party—told me that he was unalterably opposed to “this unpardonable exception to the rule of law.” “Terrorists must be imprisoned,” he declared, “but not by means of legal terrorism.” He feared that a population gets used to “special rules of war” and has difficulty living without them even when peace returns. He has tried to enact an Israeli security law to replace the “British abomination.” Under his proposal, the suspected terrorist would be tried by a court, but the rules of evidence would be specially adapted to security cases. Could a person like Fawzi al-Asmar be convicted under his proposal? “Probably yes.”
I asked the Minister of Justice, Ya’akov Shapiro, why he opposed Klinghoffer’s proposal. “I do not want to get the courts involved in the business of the military. Our courts would not second-guess the military. The only effect would be to legitimate—to impose a judicial imprimatur of lawfulness—on actions which are taken for military necessity but fall outside the rule of law.”15
I asked Shapiro whether it would not be wiser for Israel to enact its own preventive detention law to reflect its narrowly-circumscribed practices. He preferred to keep things the way they were. “It is one thing for the military to use somebody else’s law. It is quite another thing for the Knesset to enact as its own a new preventive detention law.” He told me that he could not vote for a preventive detention law. “I have seen the inside of a prison, and not as a visitor. I know what it means to be preventively detained. How many Ministers of Justice do you know who were in jail?” (He described a recent meeting of a committee of distinguished Israeli jurists. “You know that every member of the committee had spent some time in British, German, or Russian jails. People like us could not bring our-selves to vote for an Israeli law of preventive detention.”)
I asked the Minister how he could speak so sanctimoniously about not wanting to enact a preventive detention law when he readily enforces the present regulation. He was hurt by my question. “I do not enforce that regulation. I have nothing to do with it. That is a matter between the military authorities and the advisory committee. It is not within my jurisdiction. It is not a matter of law. It is a matter of military necessity.”
That kind of argument is not very convincing to critics of the New Left, the most prominent of whom is a no-nonsense journalist named Amos Kenan who has long been critical of preventive detention in particular and of Israeli policies toward Arabs in general.
He too had known preventive detention from the other side, having been a member of the Stern Gang as a young man. Kenan had no doubt that most of the Arabs detained were indeed terrorists. He knew, from personal contacts, that numerous Israeli Arabs were working with Al Fatah and with the Popular Front for the Liberation of Palestine. “Before the Six-Day War I know that many Israeli Arabs were reporting Israeli troop movements to the Arab government. Our army knew it as well; in fact, they arranged some phony movements with the expectation that they would be reported.” I asked him on what he based his information. He told me that he is—and has been for many years—very close to Arab radicals. This began during his days with the Stern Gang which, he claims, was the “only true anti-colonialist army in Palestine. We had no quarrel with the Arabs. We had a common cause with them against the British. I wept bitterly the first time we were attacked by Arabs and had to fight back. I really did regard them as brothers fighting a single enemy.” On the eve of the Six-Day War, a group of Kenan’s Arab friends—confident of Egyptian victory—offered his family refuge from the massacre they expected against the Jews. Kenan politely declined the offer and went to join his reserve unit. (Virtually no one in Israel—regardless of his political views—declines to serve in Israel’s army.)
I asked Kenan whether in light of his own observations about Arab attitudes and actions, he could really say that Israel was unjustified in detaining the small number of Arabs now in Damon Prison. He told me that his condemnation of preventive detention had to be understood in the context of Israeli-Arab relations over the past twenty years. “Maybe it is needed now. But it might not have been needed if our government had adopted a different policy toward its Arab citizens over the past generation. I could support preventive detention only if I were certain that there had been no other way. But there was another way.”
I discussed with him the allegation that people like Fawzi al-Asmar were being detained for their political views. He smiled when I mentioned the poet’s name. “I’ve known Fawzi for a long time. We worked together on many causes. There isn’t an honest bone in his body. He’s deceitful, he’s a parasite, and I think he’s a lousy poet. There may be politicial detainees; Fawzi may even be one of them; but don’t believe a word he tells you; don’t be taken in by that goddam smile.
“Fawzi is one of those Arabs,” he continued, “who criticizes the hell out of Israel whenever she deserves it; but he doesn’t have the balls to criticize any Arab government or group, ever. When I ask him why he doesn’t, he says that you have to understand that the risks of making such criticism are very great. But that’s the goddam problem with the Palestinian movement. They should take personal risks for their beliefs. The Palestinians will become a real people only after a few of them have been hung for saying what they believe. I’m sorry, but I can’t accept a double standard when judging Arabs and Jews.”
I asked him whether he himself wasn’t employing a double standard by being so vocal in his criticism of Israel’s detention practices and so silent about the far more extensive use of preventive detention in Arab countries. His answer was that Israel deserved special criticism because its performance did not match its boasts about human liberty. The Arab countries make no such boasts. “In any event, I am an Israeli and therefore I have a special obligation to be critical of my government.”
I asked him whether he would advocate releasing the detainees even though he knew that among them were potential terrorists. “Yes,” he said sadly, “even if it results in an explosion or two. That’s the price we have to pay for our past errors.” I asked whether he thought the day would ever come when Jewish critics, like him, would be detained. “I anticipate that happening in your country sooner than mine,” he said. “Look at the way you treat your Communists. Ours are elected to the Knesset and practice law.”
Felicia Langer is a Communist who practices law in partnership with an Arab Israeli named Ali Rafi. She is a lively woman in her forties who joined the party in her native Poland before coming to Israel. Now she is active in Rakah. She sees preventive detention as directed primarily against the Communists. “Our people were the first to be detained. That’s how I got into this area.” (The real reason she got into this area is that there is no tradition in Israel—as there is in the United States—under which leaders of the bar are willing to defend people whose views they despise. Some good Jewish lawyers have represented terrorists in Israel, but most of the cases have—unfortunately in my view—gone by default to the Communist lawyers.) I asked Mrs. Langer whether preventive detention was used for political reasons. “Yes, for political reasons against Communists and also as a means of pressure to get Arabs to collaborate.” Does it work, I asked? “Not against our people. Not a single Communist has collaborated.”
If it is used against political opponents, I asked why are there no Jews being detained? “It is a racist law, just like in your country the laws are directed against Third World people. Israel is a fascist country, they fight aggressive wars. I am concerned where this is all going to lead. I am concerned not for me, but for my seventeen-year-old son who will be in the army next year.” I was surprised. “If your son feels the way you do,” I asked, “why doesn’t he refuse to fight? That’s what the young people are doing in my country.” Her answer came automatically. “The party has decided that our children must serve and must try to indoctrinate the troops. My own views are unimportant.”
I asked whether the Communist party was against preventive detention in principle or just when it is directed at Communists. She boasted that there are no such laws in Communist countries. I reminded her that thousands of people are detained in Russian jails without trials, and that we all know what a Russian trial means. “I am not interested in their practices, only their laws,” she said with contempt.
My own academic bias leads me to be at least as interested in actual practices as in written laws. I set out, therefore, to make an independent appraisal of preventive detention in practice. On the basis of my experience, I find it difficult to understand the criticism leveled against Israel by groups such as Amnesty International who claim that Israel will not open its doors to their investigatory teams. Almost every door in Israel seemed unlocked; all that was needed was some initiative, and, sometimes, a gentle push. The authorities in Israel were aware of my critical attitude toward preventive detention; yet they imposed no restrictions on my activities.
I interviewed numerous Arabs, both in detention and under village restriction. I spoke to their lawyers, to government officials, and to men on the street. I heard both sides of every case. In each instance where I could, I checked these often conflicting versions with third parties or documented records.
My investigation led me to conclude that virtually all of those detained had, in fact, been involved in terrorist activites; that the vast majority could not be tried under Israeli law; and that a considerable number would probably engage in future terrorism if released. Some of the detainees were not bomb throwers themselves; they were recruiters, money raisers, and—like Fawzi—commanders. Not one of them was a mere politician, or a writer without connection to terrorist activities.16
Only one case troubled me greatly on its facts, perhaps because it involved a lawyer. It deserves recitation because it marks, in my view, the boundary beyond which Israel has not gone in preventively detaining its citizens.
Sabri Jaris is a thirty-one-year-old Arab who began speaking and writing against the Israeli government when he was still a teen-age law student at the Hebrew University. He now practices law in Haifa, sharing office space with an older Arab lawyer active in Rakah and a Jewish lawyer affiliated with Maki (the Jewish Communist party). Sabri divides his time between representing members of the Palestine Liberation Organization charged with terrorism, and writing books about the plight of the Israeli Arab.
On February 20 of this year, Sabri found himself in need of a lawyer. He was arrested by the Shin Bet and detained. Preventive detention was no stranger to Sabri. During the last hours of the Six-Day War, he—along with a handful of other Arabs who had publicly called for Egyptian victory—was detained for a short time. (Sabri is fond of remarking: “You know, the Israelis never would have won the war if they hadn’t detained me.”)
When he was sent to Damon this time, Sabri Jaris turned out to be a tiger in the tank. For the first month he just stalked silently, angry but hopeful of early release. When it did not come, he began to organize the other detainees. He started a hunger strike which received international publicity; he brought lawsuits challenging the conditions of detention; he sought his own freedom by writ of habeas corpus; he notified his French publisher who came to Israel with a famous Continental advocate; he stimulated protests by other members of the Israeli bar (Jewish as well as Arab). Three months after his arrest, Sabri was sent home to Haifa.
It was in that city, just a few weeks after his release, that I spoke to Sabri Jaris. His office, which was on the third-floor walk-up in the Arab market, was shabby and not even charming. There was no privacy; three large rooms—each with a number of desks—simply adjoined one another without any doors. Loud discussions in Hebrew and Arabic permeated every corner while a dozen Arab clients, mostly old, waited to speak with one of the lawyers. Sabri invited me into his room and we began our often interrupted conversation.
Sabri told me, in his soft fluent English, of his early life in a small Arab village on the Palestinian side of what is now the Israel-Lebanon border. His parents and most of their nine children still live there, and Sabri and his younger brother, Jarius, used to visit them on Christian holidays. During his university years, Sabri became active in various Arab nationalist movements. He was one of the founders of El Ard, an extreme movement which advocated the destruction of Israel. Even before the Six-Day War he had been in trouble with the security service. Once he was briefly detained for investigation after a Lebanese Arab caught trying to cross the border illegally had “mentioned his name.” For the past eight years, there has been an order outstanding against him which limits his movement outside Haifa without special permission.
I asked him how this restriction affected his life. He told me that it had little or no impact on his professional career, that he could—and does—go anywhere his law practice takes him. His personal life is, however, severely restricted. He told me that he was recently denied permission to attend a friend’s wedding and that his visits to his parents’ village near the Lebanon border have been limited to certain religious and family occasions. (Twice he has been caught violating these restrictions and fined.)
We talked about his most recent detention. The Shin Bet had received information that Sabri’s younger brother had crossed over into Lebanon and joined Al Fatah. They accused Sabri of harboring him on his way to carrying out a terrorist mission, and Sabri denied all knowledge of his brother’s activities. He told me with a smile that was both sad and proud: “I think the authorities are right. My brother is working with the Fatah in Lebanon.” But he quickly added that he did not harbor him or help him. “My brother’s activities were the pretext the government has been looking for all along. They detained me because of my political views.”
Moving to those views, I asked him what he thought of Al Fatah. “I understand them, I sympathize with the way they are fighting and what they are fighting for.” Did he agree with their tactics? “I feel good when I hear that the Fatah have attacked an enemy—that is an Israeli—army camp. I don’t like the idea of bombs for innocent people. But how do you expect them to do otherwise when Israel blows up the houses of innocent people in Hebron?”17 Would he help a member of the Fatah who sought refuge in his home? “No, I would not give him a place to stay. But neither would I inform the police that he sought refuge. That would be asking too much.” Did he regard himself as a loyal citizen of Israel? “I regard myself first and foremost as a Palestinian Arab. Israel was imposed on me. But I have accepted Israeli citizenship and membership in its bar. I have chosen to remain here. I obey the laws, but no more. I would not fight against my brother Arabs, and that is not required of me by Israeli law. I long for Arab victory, but I do not actively work for it.” Why did he suppose they released him after three months? “They had no choice. The pressure was too great. World opinion does not tolerate the detention of a lawyer. In the end they were sorry they had started up with me.”
I suspect that Sabri may be right: Israeli officials do seem sorry now that they detained Sabri. The case against Sabri Jaris—as told to me by government officials and others—was not nearly as compelling as the case against Fawzi al-Asmar. It was the least convincing of the many cases I had investigated.
It seems that Sabri’s native village on the Israeli side of the Lebanon border—Fasuta—was a favorite stopping-off place for terrorists entering Israel from the north. One day early this year, the Israeli police observed a small truck driving suspiciously fast in the area of Fasuta. After a brief chase the truck crashed into a tree, but the occupants escaped into a wooded area. Inside the truck, the police found two large sacks of explosives and detonating devices. They ultimately traced the truck to its owner in Fasuta and were told that the driver of the truck was Jarius Jaris, Sabri’s younger brother. They also learned from a number of reliable people in the village that Jarius spent both the night before and the night after the truck incident with Sabri (who had traveled from Haifa to Fasuta to meet him).
Within a few days the Shin Bet received a communication from an agent in Lebanon corroborating their information about where Jarius had spent the two nights. They also were told by the agent that Sabri and Jarius had planned further sabotage action in the Haifa area. Sabri was then detained—according to the Israeli authority—not for the purpose of punishing him for harboring a member of Al Fatah, but rather to prevent him from carrying out further collaborative work with his terrorist brother who was still at large. The reason Sabri was not brought to trial was because all the evidence against him was obtained from sources that either would not testify (the Fasuta villagers) or could not testify (the agent in Lebanon).
If Sabri was planning future terrorist activities, then why, I asked, was he released after only three months of detention? I was told that something had occurred in May of this year which made it highly unlikely that Sabri could carry out the planned activities. I asked what this occurrence was, and for the first and only time in my numerous interviews, I was told: “This we cannot tell you.” My surmise is that the Israeli authorities have learned that Jarius is no longer a threat and have concluded that Sabri himself, without his brother, does not constitute a sufficient danger to justify his continued detention. Accordingly, he is back in Haifa, restricted in his travel, but otherwise unhampered in the practice of his profession.
Sabri’s case is disturbing to me. I believe that he did harbor his brother as the Shin Bet charges. But that does not purport to be the basis on which he was detained. His future dangerousness was evidenced merely by the uncorroborated report of an agent. Moreover, it did not have the kind of specificity contained in the evidence marshaled against Fawzi. Finally, if the only fear was that Sabri might collaborate with a given person, namely his brother, then it seems to me that careful surveillance might have been adequate to prevent this eventuality.
It must be remembered, however, that the Sabri Jaris case was not permitted to run its full course. Since his detention ended after three months, it need not have been approved by the internal advisory committee or the Chief of Staff. Nor did the outside advisory committee or the courts have an opportunity to review its merits. Any one of these might well have decided to release him, as in fact the security people decided themselves to do after ninety days. It must also be remembered that Sabri is now actively engaged in the practice of law, despite his various detentions and violations. Consider whether a lawyer in this country would, after Sabri’s experience, be permitted to resume his practice unhampered by Bar Association investigation and discipline.
The case of Sabri Jaris leaves me with two impressions: first, the suspicion that he might have remained in Damon well beyond the three months if he had not been as prominent and vocal as he was; and second, the confidence that this is as far as the Israelis will take preventive detention, and perhaps that they will never again apply it in so questionable a case.
On balance, I favor repeal of the Emergency Defense Regulations. If Israel feels that it cannot live with the normal rules of evidence in cases of suspected terrorists, then the Knesset should enact special rules of evidence for a narrowly circumscribed category of cases during carefully defined periods of emergency. All other safeguards should be provided, as in ordinary cases. In the last analysis, such a system might result in the release of some who are now detained. It is in the nature of any judicial system that in order to prevent confinement of the innocent, it must sometimes release the guilty. And those released might engage in acts of terrorism. But risks to safety have always been the price a society must pay for its liberty. Israel knows that well. By detaining only two dozen of its 300,000 Arab citizens, Israel today is taking considerable risks. Indeed, I know of no country—including our own—that has ever exposed its wartime population to so much risk in the interest of civil liberties.
1 The literal translation of the Hebrew term is “administrative detention”; the words “preventive” and “administrative” are used interchangeably when the subject is discussed in English.
2 See, for example, my articles: “Preventing Preventive Detention,” New York Review of Books, March 31, 1969, and “The Psychiatrist's Power in Civil Commitment,” Psychology Today, February 1969; and my testimony before the Senate Subcommittee on Constitutional Rights, January 23, 1969, Hearing on Bail Reform at pp. 172—185.
3 A recent example of this was provided by the detention of the two Algerian security officials who were taken off their airplane at Lod Airport, held for a short time, and then released.
4 See, ex. parte Quirin, 317 U.S. 1 (1942).
5 Maung Hla Gyaw v. Commissioner, 1948 Burma Law Reps. 764, 766. Compare, for example, the emergency rules recently put into effect by the Canadian government. The infringement of civil liberties authorized under these laws far exceeds that authorized under the Israeli regulations; yet the threat of terrorism is clearly not as serious in Canada—at least not yet—as in Israel.
6 This is the claim of the Japanese-American Citizens League, and I know of no allegations to the contrary.
7 Quoted in Hosokowa, Nisei: The Quiet Americans (Morrow, 1969), p. 288.
8 Hosokowa, op. cit., pp. 287—88.
9 Rostow, “The Japanese American Cases—A Disaster,” 54 Yale Law Review 489 (1945). After the war ended, Congress enacted an individualized preventive detention law directed against members of “the World Communist movement” and sponsored by such liberal Senators as Humphrey, Douglas, Kefauver, and Lehman. That law authorized the “detention of persons who there is reasonable ground to believe probably will commit or conspire with others to commit espionage or sabotage.” Since it can come into operation only in the event of a foreign invasion, a declaration of war, or an insurrection to aid a foreign enemy, this detention act has never been employed. Its repeal is now under consideration in Congress.
10 The day I visited the Knesset it was presided over by the Deputy Speaker, who is a Christian Arab from Nazareth.
11 It must be pointed out that these 23 detainees do not include the Arabs from occupied territories or from East Jerusalem. A considerably larger number of Gaza Strip and West Bank Arabs—in the area of 1,000—are being held in preventive detention. Following the recent terrorist hijackings, an additional 450 West Bank Arabs were detained for a brief period and then released. Residents of the West Bank are Jordanian, not Israeli, citizens. Under the Geneva Accords, Jordanian law is supposed to govern their conduct. The Jordanian law applicable to the West Bank derives from the very same Emergency Defense Regulations inherited by Israel and explicitly authorizes preventive detention. When the Jordanian government controlled the West Bank, they made extensive use of preventive detention against Palestinian political opponents. During a visit to the West Bank, I was shown a petition—found by the Israeli army during the war—that had been signed by hundreds of Palestinian women whose husbands, sons, and fathers had been preventively detained by the Jordanian government on “political” grounds. Preventive detention of dangerous members of an occupied population is also authorized by the Geneva Accords. It has been practiced by all occupying armies confronting a hostile population. I have, in this article, limited myself to preventive detention as it is practiced on citizens of Israel; I have not dealt with the occupied territories which present different considerations, both legal and practical.
12 Indeed, the Dolphin—an excellent fish restaurant in East Jerusalem that is jointly owned by a Jew and an Arab—was blown up shortly after I ate there with my family.
13 The Israeli authorities publicly belittle the damage done by terrorists, claiming that more Israelis die each year from automobile accidents than from terrorist attacks. But anyone who has driven on Israeli roads can take little comfort from that comparison.
14 It was there as a result of the First Law of the State of Israel under which “The Law that existed in the Land of Israel on the Fifth Day of Iyar 5708 [the last day of the British Mandate] will be in force” unless repealed or inconsistent with subsequent enactments.
15 He reminded me of the observation made by Justice Jackson in the Japanese-American detention cases: “In the very nature of things, military decisions are not susceptible of intelligent judicial appraisal. They . . . are made on information that would often not be admissible and assumptions that could not be proved. . . . Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. . . .”
Jackson went on to conclude that the judicial approval of the army order detaining the Japanese was a “far more subtle blow to liberty than the promulgation of the order itself.”
16 There has been some suggestion by Israeli authorities that preventive detention might be used against convicted terrorists who have served short prison terms, who are due for release, and who pose a danger of renewed terrorist activities. A change in sentencing practices would seem to be a better way to deal with the recidivistic terrorist.
17 Israel has blown up some houses in which terrorists have hidden. No inhabitants have ever been hurt in these explosions.