Friday, September 10, 2004

Column: September 10, 2004 -- Tali Fahima and Administrative Detention

A new administration detention decree has been issued in Israel. Defense Minister Shaul Mofaz signed the decree last week which will deny Tali Fahima the right to face her accusers before a judge prior to her incarceration. Under this decree she will be held for four months. A further decree can be ordered at that time -- extending her incarceration indefinitely.

Fahima, a Jewish woman from Tel Aviv is suspected of terrorism. She is the girlfriend of Zacaria Zbeidi, the commander of the al-Aqsa Brigades in Jenin. She was in custody for about three weeks prior to the issuing of the decree. The defense establishment claims that she transferred an explosive charge that detonated at the Kalandia checkpoint three weeks ago. Three border policemen were seriously injured and Zbeidi claimed responsibility.

Long time Kach activist Baruch Marzel came out in support of the issuing of the decree. "Now, the left, which kept quiet while (right wing activist) Federman was in administrative detention (for eight months) will understand what we went through," he said.

While Marzel's reaction is understandable considering the recent incarceration of Federman and the repugnancy of the accusation against Fahima, it is mistaken because the law should not be used against any citizen in a democracy.

In the year 1765 Blackstone addressed the issue:

"Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper … there would soon be an end of all other rights and immunities. … To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole kingdom. But confinement of the person, by secretly hurrying him to gaol (prison), where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.

"To make imprisonment lawful, it must either be, by process from the courts of judicature, or by warrant from some legal officer, having authority to commit to prison; which warrant must be in writing, under the hand and seal of the magistrate, and express the causes of the commitment, in order to be examined into (if necessary) upon a habeas corpus. If there be no cause expressed, the gaoler is not bound to detain the prisoner. For the law judges in this respect, … that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him." 1 W. Blackstone, Commentaries on the Laws of England 132—133 (1765)

Significantly, Blackstone traces the earliest use of habeas corpus to the year 1305 -- under King Edward I of England and in 1679 the principles of habeas corpus were put into an Act of Parliament in the Habeas Corpus Act. The administrative detention law being use in Israel dates back to the British Mandate and was used by the British not against its own citizens but as military law to put down rebellion. It was used widely against the Etzel and Lechi when the British closed the gates of Palestine to Jews fleeing the holocaust and Etzel and Lechi fighters began to attack the British to drive them out and open the gates.

The law has been abused in recent decades to silence the right wing and for this reason Marzel is pleased to see it used against Fahima -- giving the left a taste of its own medicine. However, besides the fact that use of the law denies rights that were recognized almost 700 years ago in England, supporting the use of the law in this case will not change the fact that it has been used almost exclusively to silence and intimidate right wing activists -- and will continue in all likelihood to be used almost exclusively in that way against citizens.

Furthermore, by granting Fahima the right to face her accusers, various government policies of appeasement and the ideology of the left would almost certainly come before the court and the press. Fahima would in all likelihood defend herself as a mere peace activist who was wrongly accused of actual terrorism by a hypocritical government that armed Arafat and plans to pull out of Gaza. Whether she made this argument or not, government policies and actions of appeasement would be revisited in a new way by the world press that would surely pay much attention to the sensational trial. As it is, little will be know or heard of the whole matter.


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