Can an Ex-Senior IDF Lawyer Transform Administrative Detention?

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Liron Libman: Even a bit more justice than now is better.

Illustration | Flash 90

It was pitch black and late in the night around 2003-4 at the IDF administrative detention court hosted at Ketziot Prison, located in a barren portion of the Negev around 70 kilometers southwest of Beersheba.

Nobody wanted to be at the hearing and everyone wanted it to end fast without a careful analysis. Then-IDF judge Liron Libman was the only one who seemed to be taking the evidence and the hearing seriously. The Shin Bet (Israel Security Agency) and IDF prosecution viewed the case as a no-brainer – the Palestinian terrorist needed to be kept in administrative detention to save lives.

The Palestinian viewed the process as a kangaroo court in which he had no chance to be freed, so he just wanted to go back to sleep.

Libman explains that the hearing occurred shortly after IDF judges were finally starting to get the full classified intelligence picture for administrative detention cases even as the Palestinian detainees and their lawyers still do not.

Mild-mannered but firm, Libman says that dealing with such classified evidence in a one-sided process “is not easy; for the judge to do everything alone is not simple.” Though maintaining that he tried to be fair and balanced in administrative detention hearings as an IDF judge, he says that the one-sidedness of the process always made him uneasy. “The DNA of our legal system is adversarial system-style DNA.”

Administrative detention hearings are judicial proceedings, but the courts can order a person’s extended detention without that person viewing all of the classified evidence against them. Critics say such proceedings are kangaroo courts, whereas Israel says keeping evidence classified is critical to protecting intelligence sources and say that judges still must rule on detainees’ behalf if the evidence is in their favor.

Libman would go on to become the IDF international law division head and the IDF chief prosecutor, with the high rank of colonel. In that capacity, he was responsible for overseeing the IDF’s work with the Shin Bet to obtain as many administrative detention orders as needed to maintain security. All of this makes him a somewhat surprising but also uniquely positioned advocate for reforming and opening up administrative detention proceedings in his newest capacity as a fellow at the Israel Democracy Institute.

 In this push, Libman has powerful allies in the form of current IDF West Bank Courts Chief Justice Col. Netanel Benishu, who wrote a journal article strongly supporting the reform, and in a more passive way, former Supreme Court justice and attorney-general Elyakim Rubinstein. Benishu also writes that four out of five Supreme Court justices queried about the issue in the past said they supported the idea.

THIS IS not the first time the reform has been discussed. Another former IDF senior prosecutor and current IDI senior fellow, Prof. Mordechai Kremnitzer, supported the idea at a Knesset hearing a few years ago. But now, for the first time ever, the reform also has more support on both the Left and Right ends of the political spectrum, even if still on the margins. There have always been harder-Left politicians who wanted to reform or even do away with administrative detention.

But after administrative detention was used in 2015 against a group of extremist settlers after the terrorist attack on a Palestinian family in Duma, Bayit Yehudi MK Bezalel Smotrich started to support reform along with more centrist Likud MK and former Shin Bet director Avi Dichter.

Libman identifies two main problems with the practice of administrative detention. One is that it is “based on future considerations – not what you did, but what we think you will do. This is a problem from the perspective of doing justice: to harm a person [by detaining them] based on what they will do. This can be speculation. Sometimes you catch people and afterwards learn” you caught the wrong person.

Second, he returns to the use of classified evidence.

This refers to the fact that “the intelligence evidence on which [administrative detention is based] is not revealed to the defense.” This seems to “go against the idea of a fair hearing. The detainee and the defense only get a general paraphrase” of the intelligence evidence that is the basis for the detention.

WHAT REFORMS is he pushing for? Essentially, he hopes to address the second issue and to make the process and evidence more open.

But how is this possible when the reason that Israel does not allow defense lawyers and detainees to see the intelligence evidence against them is usually to protect its intelligence sources? Libman’s answer is to appoint a special defense counsel, likely with a military judicial or other high-ranking judicial background, who will be cleared to view all classified materials and act as an intermediary arguing for the detainee based on all of the evidence.

In this case, Israel could still avoid giving the classified intelligence evidence to the detainee and the detainee’s personal lawyer – persons whom it might not necessarily trust with the information. But at the same time, the special defense counsel could meet with the detainee to learn from him what kinds of legal issues he might be able to raise once he gets to view the classified evidence.

Libman explains that in some places where such a special defense counsel exists, such as England and Canada, once the counsel “is given the classified material, he cannot be in touch with the detainee anymore.” This is the flip side about what makes this counsel “special.” On one hand, the counsel can make arguments on behalf of the detainee that the personal lawyer cannot. On the other hand, the special defense counsel can never act as the detainee’s personal lawyer, as a personal lawyer “cannot limit his client’s access to information” in his possession.

The former chief IDF prosecutor pointed out that in England, the counsel can “send written questions to the detainee, which ensures that he will not reveal any classified information” as the questions can be reviewed by the relevant security authorities.

More specifically, Libman describes multiple pluses for the defense from the creation of a special defense counsel. The counsel can not only make arguments that the personal lawyer cannot make based on viewing the full classified intelligence, he can also press the court to declassify more of the off-limits evidence. Aspects of the counsel’s arguments then would be made in the presence of the detainee and his personal lawyer, while aspects would be solely with the court and the prosecutor present.

What about the first problem Libman listed with administrative detention, in terms of detaining a person for something they have not yet done? Libman says Israel must live with this dilemma and that there is no obvious fix.

“Administrative detention is unavoidable in Israel.

I have seen the intelligence material in dozens of cases. I did not see a single case that was ridiculous.

Even if you could say that some cases could have gotten fewer months of detention or could have been addressed in some way besides administrative detention, there were no cases that did not have grounds.”

He cites statistics proving that the volume of administrative detentions can be directly correlated to how hot the security situation gets to prove that Israel does not abuse the practice. He states that during the Second Intifada, detentions went over 1,000. During mid-level spikes in violence, there are often around 500. When things cool off, the numbers often drop to around 200. The Jerusalem Post separately confirmed that during the height of the Oslo process in the 1990s, the number of administrative detentions dropped to single digits.

“But it is very problematic, so we should still try to limit and reduce the problems,” such as by using a special counsel to make the evidentiary process less secretive, he says.WITH SUCH substantial backers from the system itself and some from the Right and the Left in politics, is the reform/compromise of sorts moving forward? All signs to date are that despite the reform’s strong supporters, it is currently stuck, with opposition mostly from the Shin Bet and from some within the Justice Ministry, while others in the ministry support the change. Libman has met “with the relevant officials” and suggested to them as a former chief IDF prosecutor that more cases can be handled by criminal indictments, but acknowledges there is opposition.

The Shin Bet declined to respond, other than to indicate that it has provided its position to the government officials handling the issue. But the Post has learned that there are concerns that a special defense counsel would lead to fewer detentions even when necessary – creating more danger to civilian lives – and that there would also be some enhanced risk of intelligence sources being exposed.

Responding to the opposition, Libman suggests that doubts could be addressed by starting with a pilot program in select cases with Palestinians in the IDF West Bank courts to see how it works in practice. He says that legally and procedurally, the IDF can move forward with a pilot program in a more streamlined fashion than the civilian system.

Beyond that, he said that the whole point of the special defense counsel being required to be someone with top-secret security clearance and likely a former IDF judge is that they are extremely trustworthy and leak-proof. Also, he says that the counsel would only be able to view classified intelligence “in specific secure areas. It cannot be taken just anywhere.”

Regarding the concern of accidental revelations between the counsel and the detainee, Libman points out that once the counsel has viewed the classified information, he no longer can be in contact with the detainee.

Another problem the reform has is that just as there is some support for it from the Right and the Left, there is also bipartisan opposition. Ironically, many Palestinians and their defense lawyers oppose the reform as stridently as the Shin Bet, though for very different reasons.

Top defense lawyer for Palestinians Gaby Lasky and others oppose the reform because they are only interested in eliminating administrative detention entirely. In their view, any middle-of-the-road “reform” will only serve as a fig leaf which could confuse global critics and help whitewash what would still be an illegal practice. Also, each limitation on the counsel that Libman praises as safe-guarding leaks, Lasky and others view as turning the counsel into just another agent of the “occupation” under the guise of helping Palestinians.

Libman responds to this criticism saying, “administrative detention is legitimate in the belligerent- occupation legal context from an international law perspective.”

“Even if people are against administrative detention, I do not like it when people say reforms are only being done to whitewash things and look better.

It reminds me of [Soviet leader Vladimir] Lenin, who said that you need to be worse to be better. I do not believe this. I am a pragmatic person. If you can get a bit more justice than there was until now, then that is better,” he says stridently.

HOW DID Libman cross over from being a chief IDF prosecutor who pushed for administrative detention to pushing for reforming the practice? For one thing, he has been out of the system now for six years.

“When you are in different places, you see things from different perspectives. The more different angles you have had, the more things you see. You do not forget, but you get a deeper and more balanced picture. You can combine looking at things from afar to being up close and to seeing more gray and you have more questions,” says Libman. “Even when I was in the system, I always had questions and never assumed everything was alright. I always thought about how we could do better.”

Libman also explains that doing the right thing, not just convicting and detaining people at all costs, goes deep with him, recalling a remarkable case from the 2005-8 period when he was the chief IDF prosecutor.

He recounts, “The Shin Bet got new information showing that a Palestinian whom it had helped convict was innocent. By its own initiative, it requested we [the IDF prosecution] seek a retrial” in order to overturn the conviction and free the Palestinian.

Recalling this story “helps me really think about people and it shows that the Shin Bet also cares about legal justice” and not just preventing terrorist attacks.

“I do not know if someone had not cared, if we said he is just a Palestinian” he would have been freed. “The system does not need to be viewed as all bad. We said we needed to do something. If there are cases like this, then there is hope.”

Libman’s administrative detention reform is still very much up in the air, but it does not appear that he will give up hope on it easily.

The article was first published in the Jerusalem Post