Thursday, May 19, 2005

Column: A Closer Look at Administrative Detention

There is news regarding the arrest and incarceration of Neriah Ofan, the 33 year old father of four who is being held in an Ashkelon prison under Administrative Detention without charges or the right to trial.

In a hearing before Justice Pilpel in the District Court in Be’er Sheva, Ofan’s attorney, Naftali Wurtzberger, sought to persuade the court to let him see the secret documents that were the basis of his incarceration.
According to Arutz 7, J.Pilpel originally agreed that Wurtzberger could look at the documents but after General Security Service agents asked for and received a consultation with the judge, he changed his mind. Wurtzberger said that the judge was apparently strongly pressured by the GSS to revoke his decision.

Related to this story, I thought it might be interesting to take a brief look at the text of the British Mandate Law of Administrative Detention and to compare its application in Israel today against citizens engaged in political dissent to the recent decisions of the United States Supreme Court in Hamdi v. Rumsfeld and Rasul v. Bush where enemy combatants, both citizens (Hamdi) and even aliens (Rasul) have been given the right to a Habeas Corpus hearing to challenge their imprisonment in a United States Federal Court.

It would appear that today, actual enemy combatants who have actively participated in a war against the United States and have been caught on the battlefield with arms, have more rights in America, a land they have waged war against, than citizens of Israel have in their own country – if they dare participate in civil disobedience and political protest against Sharon’s expulsion plan.

Could this really be the case? I am afraid that it appears so. I think that two factors have made it possible.

The first is the mistaken decisions of the US Supreme Court in Hamdi and Rasul. What the court effectively did was wipe out the right of the Executive to imprison enemy combatants until the cessation of hostilities. In giving enemy combatants, whether alien or civilian (held on foreign soil in Cuba), the right to Habeas Corpus they have as former federal prosecutor,Andrew C. McCarthy said, “ruled in favor of the enemy.” War can simply not be conducted and won when the courts are flooded with Habeas Corpus suits from every captured enemy combatant, the prestige of commanders are seriously compromised, and when enemies enjoy the knowledge that they can fight and if captured possiblly be released only to return and fight again.

The second factor is that the British Mandate Law, I presume, was never designed to be a law to be used against citizens to silence political dissent but was very much a law designed to deal with a situation the occupying forces of England found themselves in that at times resembled very closely an actual war. From the British point of view it made perfect sense to have a law on hand that states that:
“If a Military Commander deems the detention of a person necessary for security reasons he may do so for a period not in excess of 6 months, after which he has the right to extend the detention period for a further six months according to the original order. The detention order can be passed without the presence of the detainee...”

One can understand why the British had such a law given the circumstances and one can understand why Israel does and should use this same law against true enemy combatants – Arab terrorists. What is so difficult to understand is the logic of Hamdi and Rasul and the use of administrative detention in Israel to make political – not military -- arrests. The result, as we see, is the bizarre situation where the likes of Rasul and Hamdi can get a hearing in America to challenge their imprisonement while Neriah Ofan has absolutely no recourse at all.

There is a lot of concern that Ofan’s arrest is only the first of many political arrests that we may see in the months to come. What the government of Israel really seeks to do is to silence legitimate free speech and political protest by calling it a threat to state security. In doing this Israel has turned its own citizens into the equivalent of “enemy combatants” – treating them in the same way with regard to legal review of incarceration as enemy combatants have been traditionally treated in times of war – and actually worse that the US Supreme Court has now decided to handle actual and dangerous enemy combatants who are today bent on the destruction of America.

Both of these situations boggle the mind and both are horribly mistaken -- and both hand the terrorist enemies of Israel and America another unearned victory.


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