Organized Criminals Today, Everyone Else Tomorrow

In an op-ed in Haaretz, Attorney Lina Saba-Habesch warns that extending the use of administrative detention to apply to suspects in cases of organized crime could lead to the use of this extreme method, or of other extreme methods, in combating other forms of crime.

A few weeks ago, Public Security Minister Yitzhak Aharonovitz asserted that organized crime organizations should be considered terror organizations, and called for using administrative detention as a means of dealing with them. His words fell on fertile soil that is full of anger, helplessness, fear, and a desire for revenge on the part of a public that is willing to accept any means of ensuring personal security, no matter what its moral price may be.

Under the existing law, in times of emergency, it is permissible for the Minister of Defense to give orders to detain a person without trial in order to protect national security and public safety. This detention order can be renewed every six months, with the approval of the court. In theory, this provision could allow a person to be imprisoned indefinitely without a conviction or even criminal charges. The imprisonment can also be extended on the basis of secret evidence given to the judge ex parte, without the suspect having a clear understanding of the nature of the allegations against him. In contrast to criminal detention, which has both a preventive and punitive purpose, the purpose of administrative detention is only preventive.

Administrative detention is used by the State of Israel as part of the war on terror, but even in that context, the use of this measure is extremely controversial. Extending the use of administrative detention to criminal contexts that are not related to terrorism is dangerous and inappropriate for a democracy. This measure disrupts the distribution of power between the authorities and the individual, as well as the right to liberty  and due process. Because it deprives suspects of the ability to present an effective defense, administrative detention has definite potential to cause injustice to the detainee. This is partly because administrative detention is based on a risk evaluation that attempts to predict an individual's future behavior.

In emergency situations, when there is a real danger to the state, the use of measures that violate human rights may be justifiable. However, when the issue at hand is clearly a criminal activity, criminal law should be applied, as it ensures the suspect's rights to due process. The laws of criminal justice limit the number of days of detention that are permitted (subject to judicial review), and stipulate that the defendant must have access to all investigative material following the arraignment. Furthermore, under criminal law, the defendant enjoys the presumption of innocence, and if he or she is convicted in the end, it is on the basis of admissible evidence that is proven beyond a reasonable doubt.

In order to facilitate the war on organized crime, Israel enacted the Combating Criminal Organizations Law in 2003. This law permits the police to arrest the leaders of crime organizations simply for belonging to such organizations. It also permits the use of economic enforcement mechanisms.

Anyone who calls for allowing the use of administrative detention against suspect members of a criminal organization today may call for allowing the use of targeted killing tomorrow. Similarly, anyone who receives permission to use administrative detention to combat organized crime today may ask for a similar dispensation to use this method to combat drug trafficking and other less serious offenses tomorrow.

Attorney Lina Saba-Habesch is conducting research as part of IDI's Democratic Principle project.

This article was originally published in Hebrew in Haaretz on November 27, 2013.