The Security Check Appeal: Another Extension of the Judgment

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The Israeli Supreme Court recently decided to put off ruling on a petition to eliminate the ethnicity component from airport security checks—an appeal that has been pending for almost five years. This case involves Israel's security concerns as well as Israel’s attitude toward its Arab minority. In this article, Eli Bahar, former legal adviser to the General Security Service, explains the ruling and assesses the Court's decision to postpone the decision on this sensitive issue.

A highly significant and fundamental appeal has been pending before the Israeli Supreme Court for some five years. This appeal not only challenges security-related concerns—as reflected in the security checks that the State of Israel conducts at its airports—but also Israel's overall attitude toward its Arab minority.

The petitioners argued, simply, that the ethnic component should be removed from criteria for security checks as it is applied to Israel's Arab citizens. While maintaining the confidentiality of its security procedures, the State responded that there are indeed different levels of security inspections that vary according to the perceived threat posed by a passenger, which are partly based on the overall characteristics of the passenger. Even so, according to the State, a stringent level of security checks is not universally applied to Arab Israeli citizens, and in fact, most Arab Israelis undergo simple and rapid security checks.

The State presented the court with the security system that has been developing gradually at Ben Gurion Airport. Its most remarkable features are the separation of checked luggage from carry-on luggage and the inspection of the checked items by means of a separate, automated system.  The state claimed that upon completion of the system in 2013, airport security procedures will be entirely different than before: checked luggage will not be inspected in the presence of the passenger, and as a result, Israeli Arabs will not feel that they are being subject to targeted, rigorous inspections in any event.

In an interim decision rendered several weeks ago, the Israeli Supreme Court, headed by President Emeritus Justice Dorit Beinisch, determined that the great importance of civil aviation security warrants postponing a decision until the new airport security measures have been fully implemented. At that point, after the changes have been introduced, the legality of the security procedures will be reassessed.

A careful reading of the interim decision reveals, first and foremost, how reluctant the Court is to rule on this appeal. After five years of discussion in a panel headed by the outgoing President of the Court, it was expected that the Court would decide one way or the other. Postponing the decision by another 12-18 months indicates the real dilemma the Court faces: it does not wish to hand down a decision that would shatter security perceptions regarding the sensitive issue of civil aviation, nor is it insensitive to the factors underlying these perceptions. At the same time, however, it cannot give judicial sanction, even implicitly, to differentiation between Israeli citizens on ethnic grounds during security checks, no matter what the reason for such differentiation might be.

We must bear in mind that Israeli Arabs have come to consider airport security to be a method of discrimination against them. Moreover, there is a palpable risk that if the Court were to rule in favor of security checks on the basis of ethnicity, its seal of approval could rapidly be applied to areas extending far beyond civil aviation. It seems that the Court understands that granting legitimacy to such measures could have a devastating impact on Israeli-Arab relations.

It appears the Court is also desperate to avoid ruling on this sensitive issue because if it accepts the appeal, it could be accused of damaging civil aviation security, and in so doing, may provide ammunition to the many forces already lying in wait to undermine the Court's standing. Lengthening the extension of the judgment, which is already reaching the bounds of plausibility, attests to that clearly.

To obscure this dilemma, and perhaps even to avoid the need for a decision, the Supreme Court is pushing the State to invest in technology that would facilitate security checks conducted based on uniform criteria. In its decision, the Court calls on the State explicitly to examine the option of using the technology that has been developed, both to avoid the use of different procedures for Jews and Arabs in public and to arrive at uniform security standards that can be applied equally to all Israeli citizens.

A thorough reading of the interim decision leads to the conclusion that by allowing an additional extension, the Court is essentially telling the State of Israel that it is being given an additional extension in order to find a way, by means of investing in technology, to perform security checks that will be based on equal regulations for all Israeli citizens. The Court thus hopes that the need for an actual decision will eventually become unnecessary. Even if the State maintains its position, the extension may give the Court hope that at the time of a future decision in favor of the petitioners, the security system will be equipped with technology that will enable the system to better address possible changes in perception.

In any case, it appears that this legal battle is nearing its final stretch. The parties involved would be well advised to prepare promptly for the potential ramifications of a ruling. 

Eli Bachar is a former legal adviser to the General Security Service (Shin Bet).

This article was originally published on the IDI Hebrew website on June 15, 2012.