Ideas Imprisoned - Part I: Administrative Detention
J. David Thompson
SWJ Note - This is a multipart series exploring administrative detention in Israel and the occupied Palestinian territory.
Administrative detention is the procedure to hold persons often without charges or a trial.[i] The Israeli Defense Force (IDF) is one military force of many, including the United States, across the world that uses administrative detention.[ii] The justification for the detention is a belief that the person plans to break the law at some point in the future and that security mandates immediate detention.[iii] Human rights advocates accuse authorities of using administrative detention to circumvent the standards of criminal procedure.[iv] This blurs the line and distorts the purpose of administrative detention. Administrative detention is supposed to only be forward looking and used as a protective measure. Criminal proceedings are punitive for actions a person did—not what one may potentially do.[v]
The Government of Israel uses three laws for administrative detention: Order Regarding Security Provisions (Judea and Samaria) (No. 1651), Emergency Powers (Detentions) Law (1979), and Internment of Unlawful Combatants Law (Unlawful Combatants Law).[vi] The prison sentences for administrative detainees are for six-month periods that may be renewed indefinitely. Judges may limit the detention sentence to less than six months; however, judges may still renew detention indefinitely. At the renewal hearing, the period of detention is, again, six months unless otherwise stipulated by a judge. A military commander may order the detention of the individual without any due process based on classified evidence. Authorities forbid the accused of reviewing the charges and evidence—assuming there are any. Further, the accused does not have the right to confront the accuser.
The Order Regarding Security Provisions
The Government of Israel relies upon Order Regarding Security Provisions (Judea and Samaria) (No. 1651) 5770-2009 (hereinafter: Order Regarding Security Provisions) for the legal basis of administrative detention in the West Bank.[vii] The standard requires a military commander to believe “reasonable grounds” exists to order a person to be detained.[viii] The commander may renew the detention from “time to time” if he has “reasonable grounds” to believe that the detained may constitute a threat prior to expiration of the sentence.[ix] Lastly, there is no requirement that the person be present prior to the ruling.[x]
The accused technically, although not effectively, receives judicial review. He or she must be brought before a judge within eight (8) days of detention by a military commander.[xi] This standard is grossly disproportional to the 24-hour standard under Israeli criminal procedure[xii] and the 48-hour standard under the order providing administrative detention for Israelis inside Israel.[xiii] The judge may approve, cancel, or reduce the detention order.[xiv] To cancel or reduce, though, the judge must be convinced of irrelevance, bad faith, or unlawfulness.[xv] When the standard for the military commander is only that of “reasonable grounds” with a threat as high as “regional security,” being “convinced” of irrelevance, bad faith, or unlawfulness is a high standard to overcome. Given the withholding of evidence from the accused, judges may act as council to the accused; however, the rules of evidence bend even more for administrative detainees.[xvi] Judges may withhold evidence even in the absence of the detainee or the detainee’s representative without disclosing it if the judge deems the evidence harmful to security.[xvii]
Reviews of administrative detainees happen behind closed doors; therefore, members of the public, press, and families may not attend.[xviii] The entire procedure permits the attendance of the military judge, prosecutor, the accused, representative of the accused, and a member of the intelligence community on occasion.[xix] The decision to invite a member of the intelligence community changed in 2002 during the re-occupation into the West Bank.[xx] Previously, members of the intelligence community regularly attended the proceedings.[xxi] Today, the decision of whether a member of the intelligence community may attend rests outside of the military judge’s power.[xxii] When viewing classified information, judges often do not have intelligence analysts present to clarify the reports.[xxiii] Given that judges may have strenuous caseloads, not all judges may take the time to understand the strengths and weaknesses of the intelligence. This leads to deference to authority. From this judge’s determination, there is the right for an appeal.[xxiv] Prior to April 2002, there was a double appeal;[xxv] however, today, the order receives one right of appeal.[xxvi]
By the Numbers
During the First and Second Intifadas, Israeli authorities held many hundreds of Palestinians in administrative detention.[xxvii] The number crossed into the thousands on several occasions in 2003.[xxviii] On the eve of the Second Intifada (al-Aqsa Intifada), Israeli authorities held twelve (12) Palestinians in administrative detention.[xxix] A dramatic spike occurs a few months into the Second Intifada in 2002, when Israeli authorities go from thirty-six (36) Palestinian administrative detainees to a high of 967 (an almost 27000% increase).[xxx] This number climbs even higher in 2003. Since 2002, Israeli authorities held no less than 100 Palestinians on administrative detention in any given period.[xxxi]
In May 2017, Israeli authorities held 475 Palestinians in administrative detention. Israeli authorities held 128 (26.9%) of these 475 detainees between six to twelve months.[xxxii] This means that a judge extended their detention at least once.[xxxiii] Israeli authorities detained a further 121 (26.7%) of the 475 for more than a year, which means a judge extended their sentences at least twice.[xxxiv]
As stated previously, judges have a much higher burden to overturn a military commander’s decision. As such, the judicial process is effectively a rubber stamp of approval. In July 2017, Israeli authorities issued 3,909 administrative detention orders.[xxxv] Of these, 2,441 (62.4%) were for extensions for already detained individuals.[xxxvi] The military court canceled only forty-eight (48) (1.2%) orders.[xxxvii] Judges approved 2,953 (75.5%) without amendment.[xxxviii] Further, research found no instances of when a judge disagreed with the prosecution’s assertion that evidence should be withheld for national security reasons.[xxxix] The exception to withholding evidence became the rule.[xl]
Cognitive Disconnect to the Finality of a Decision
In the entirety of the process, a few places present opportunities where a cognitive disconnect between the decision being made and the finality of that decision potentially occurs. This disconnect occurs in two ways. First, the disconnect enables a judge or commander, who is actually making a decision, to believe that she merely concurs with a decision already made. Second, the disconnect presents itself as one that the decision is merely a recommendation.
First, the military commander may think that his decision to administratively detain someone is merely a recommendation to a judge. The judge does have the ability to cancel, shorten, or approve the military commander’s decision; however, the commander only has a “reasonable” standard. For the judge to reverse the commander’s decision, the judge must have a “convinced” standard for irrelevance, bad faith, or unlawfulness.[xli] The military commander may think that the judge makes the decision when in fact the judge must agree with the commander’s decision unless the judge meets a much higher burden. Additionally, the commander may think that his staff made the decision, and the commander only empowered the staff.
The judge, who is held to a higher standard of certainty, also has the potential for a cognitive disconnect. From the judge’s vantage, she only confirms what the military already decided. Further, as stated, the judge has a higher standard. If an experienced professional in the field believes with such a low degree of proof required that something with grave consequences may take place, the judge may feel disempowered to question the commander’s decision. Ultimately, the judge must approve the commander’s decision if the judge cannot meet this higher standard of certainty. For the judge, the disconnect presents itself again when the detainee completes the six-month sentence. The judge must consider if the person changed enough to where the person presents no potential, reasonable threat. Again, the judge remains subject to the recommendations of the intelligence community.
Another area for potential disconnect is with the intelligence analyst that makes the recommendation for a person to be detained. Commanders must rely on the expertise of their staff. Judges may recognize the limits of their knowledge. As such, the intelligence analyst influences multiple decision-makers. While the analyst is not ultimately empowered to make the decision, the analyst’s professional opinion carries considerable weight. If the analyst is absent from the courtroom, then the judge may not question the analyst’s reasoning if the reasoning is absent from the classified report.
The potential for decision-makers to not believe in the finality of their decision exists throughout the process. A decision-maker may view his or her decision as an affirmation of a decision already made or view a decision as a recommendation. These disconnects may imprison more people and keep people imprisoned longer.
[i] Supra Administrative Detention in the Occupied Palestinian Territory, Fourth Edition 2016.
[v] Schick v. U.S., 195 U.S. 65, 24 S. Ct. 826, 49 L. Ed. 99 (1904); Commonwealth v. Smith, 266 Pa. 511, 109 A. 786, 9 A.L.R. 922 (1920).
[vi] Supra On Administrative Detention.
[viii] Order Regarding Security Provisions. Article 285(A). “If the Commander of IDF Forces in the Area or a military commander empowered by him for the purpose of this section (in this article: "military commander") has reasonable grounds to believe that a certain person must be held in detention for reasons to do with regional security or public security, he is empowered, through an order signed by him, to order the detention of that person for a period of time to be specified in the order, not to exceed six months (in this article: "detention order"),” http://nolegalfrontiers.org/en/military-orders/mil01/67-security-provisions-chapter9-271-315.
[ix] Id at Article 285(B). “If a military commander has reasonable grounds to believe, prior to the expiration of the detention order issued under Subsection (A) that reasons pertaining to regional security or public security still require the detention of the person, he is empowered, through an order signed by him, to order from time to time the extension of the validity of the original detention order for a period not to exceed six months and the provisions applicable to the original detention order shall apply to the extension order.”
[x] Id at Article 285(C). “A detention order under this article may be issued in absence of the person to whose detention it applies.”
[xi] Id at Article 287(A). “A person detained under this article shall be brought within eight days of his arrest before a judge whose rank is no lower than the rank of major. The judge is empowered to approve the detention order, to cancel it or to reduce the stipulated period of detention.”
[xii] Per Criminal Procedure Law (Powers of Enforcement–Arrest), 1996, Article 29(A), the standard for an arrestee to be brought before a judge in Israeli law is 24 hours.
[xiii] Emergency Powers (Detentions) Law (1979), Article 4(a). “Where a person is arrested by order of the Minister of Defense under this Law, he shall, within 48 hours of his arrest, or, if immediately before he was under detention by order of the Chief of the General Staff, within 48 hours of his arrest under that order, be brought before the President of a District Court, and the President may confirm or set aside the detention order or shorten the period of detention. If the detainee is not brought before the President, or the hearing before him is not begun, within 48 hours as aforesaid, the detainee shall be released unless some other ground for detaining him exists under any law,” https://www.btselem.org/sites/default/files/1979_emergency_powers_law_detention.pdf.
[xiv] Order Regarding Security Provisions at Article 287(A). “(A) A person detained under this article shall be brought within eight days of his arrest before a judge whose rank is no lower than the rank of major. The judge is empowered to approve the detention order, to cancel it or to reduce the stipulated period of detention; If a detainee is not brought before the judge and a hearing is not initiated within eight days as noted, the detainee shall be released, unless there is another reason to detain him under any law or security legislation. (B) The judge shall cancel the detention order if he is convinced that the reasons for which it was issued were not relevant reasons to do with regional security or public security, or that it was issued not in good faith or by unlawful considerations.”
[xv] Id at Article 287(B).
[xvi] Id at Article 290(A). “(A) In proceedings under sections 287 and 288, it is permissible to deviate from the rules of evidence if the judge is convinced that this shall be expedient in establishing the truth and conducting a just trial.”
[xvii] Id at Article 290(C). “In proceedings under sections 287 and 288, the judge is empowered to receive evidence even in absence of the detainee or his representative, or without disclosing it to them if, after examining the evidence or hearing the pleas, even in absence of the detainee and his representative, the judge is convinced that disclosing the evidence to the detainee or his representative may harm regional security or public security; this provision does not detract from any right to withhold evidence in accordance with Section 87.”
[xviii] Supra On Administrative Detention.
[xxiv] Order Regarding Security Provisions at Article 288. “A judge’s decision under Section 287 may be appealed before a judge of the military court of appeals, and he shall have all of the powers awarded to a judge under this article.”
[xxv] Supra On Administrative Detention.
[xxvii] Supra On Administrative Detention.
[xxx] Supra Statistics on Palestinians in the Custody of the Israeli Security Forces.
[xxxii] Supra Administrative Detention. B’Tselem.
[xli] Order Regarding Security Provisions at Article 287(B).