Ari Z. Zivotofsky

The important, but not infallible, Shabak (Shin Bet) — Where is the political and judicial oversight?

Israel's security services are blundering too often with both Arab as well as Jewish suspects
One of the suspects arrested in connection with the Dawabsha murder, December 3, 2015. Under a court-issued gag order, the identities of the suspects cannot be revealed. (Screen capture)
One of the suspects arrested in connection with the Dawabsha murder, December 3, 2015. Under a court-issued gag order, the identities of the suspects cannot be revealed. (Screen capture)

Admitting an error is never easy. And when you are the Shabak and the government grants you seemingly unlimited power to extract a confession whenever they deem it warranted, it is even more difficult. At the end of December 2017, a three-judge panel in the Be’er Sheva District Court gave a stinging rebuke to the Shabak’s methodology. Khalil Nimri, a resident of the eastern part of Jerusalem was arrested in an Eilat hotel in November 2015 on suspicion of plotting a terror attack. The judges have now determined that it was a case of mistaken identity and that based on the evidence presented in court there is a realistic concern that the accused man was imprisoned for two years, despite not having committed said crime.

What enabled his prolonged detention and dragged him through the legal system was the Shabak’s methodology — they interrogated him until he confessed. According to the judges, the Shabak did not do the most basic police field work, such as examine hotel video footage, investigate the suspect’s alibi, and carry out a suspect line-up. For the Shabak, an extracted confession seems to have been sufficient. “The Shin Bet needs to take a good look at itself so that interrogation techniques, which do indeed sometimes uncover dangerous acts of terrorism, are not also liable to induce innocent people to admit to acts that they did not commit,” the judges wrote.

The Shabak’s methods may be useful in “ticking bomb” scenarios in which the extracted information can be readily verified and used to prevent an attack. But as a replacement for detective work, it is woefully flawed and should be carefully regulated by the political and judicial establishment. Corporal Oleg Shaichat was killed in July 2003, and on September 20, an indictment was filed against three Arabs from Kfar Kana who, after Shabak interrogation, confessed to and even re-enacted the murder. If not for the fact that, on April 18, 2004, the actual murderers carried out a terrorist shooting using Shaichat’s stolen weapon, the Shabak error would have likely never come to light and those three men would still be rotting in jail for a crime they did not commit. The over-zealousness in that case cost the tax payers almost 1.5 million shekels in compensation to the wrongly accused.

In recent years, Shabak’s “Jewish Unit” seems to have an over reliance on extracted confessions and extra-judicial methods, and this has led to more than its fair share of unwarranted abuse of Jewish kids. The so-called right wing government seems to be pressuring the Jewish Unit to produce results and gives it free reign to achieve this goal.

The Shabak has done and does much to safeguard the citizens of our country from the ever-present danger posed by our enemies. But the overzealous branch that deals with “Jewish crimes” seems to be in need of serious reform.

The Duma firebomb was thrown on July 31, 2015. Within hours the government had declared that “Jewish extremists” were responsible and the efforts to identify the perpetrators continued at an intense pace. Starting in late November, 2015 a number of young Jewish men, several of them minors, were taken into custody by the Shabak. They did not see lawyers for two weeks and were aggressively interrogated for 2-5 weeks. In a related move, three other Jews were earlier given 6-month detention orders, i.e. were jailed without trial.

Haaretz reported (December 15, 2015) that the “deputy attorney general for criminal law told a Knesset committee that ‘extraordinary measures’ have been used in questioning the suspects currently in custody” and on December 24, Haaretz, no friend of “hilltop youth,” reported that the Shin Bet had admitted to torturing the suspects. One of the minors reportedly attempted suicide due to the methods used.

The important question is, what were the results of that torture that was authorized by the government? One of the arrested, Amiram Ben-Uliel, confessed and was charged with murder. He has since recanted his confession. A minor, Prisoner E, initially confessed to the firebombing. But his utter lack of knowledge about the crime details convinced even the Shabak that they had extracted a false confession, so they dragged him back to the dungeon until they extracted another confession, that he was an accessory to planning the attack. These two suspects have been held in near-solitary confinement for over two years and are still awaiting trial.

Two others who were held around the same time were finally charged with an unrelated crime that the government was keen to solve – burning a church. Of those, one was convicted and the court found the other totally innocent. The evidence the Shabak presented was just insufficient to hold up in court.

And the others? Netanel Furkowitz, a model citizen, was interrogated under severe conditions for 12 days and then released. Six months later, the Shabak admitted they made a big oops. He had no connection to the Duma arson. The Shabak, which in their latest version asserts that Ben Uliel arrived in Kfar Duma on foot, initially claimed that Furkowitz had sold a car to a youth, whom they also accused of involvement in the arson, which was used to enter Duma. And that youth? After enduring 29 days of interrogation, he was charged with …..  having a fight with a Bedouin two years earlier! The Shabak clearly was under great pressure to solve this case and was willing to drag these citizens in based on erroneous information. Was a car used or not? And why that particular car? An upstanding role model suffered a traumatic, life-altering 12 days and an innocent young Jew was terrorized by his government for a month because of some theory despite his iron tight alibi all because of a political need to solve the case. These two each had their detentions and interrogations extended by a judge. One wonders what evidence the Shabak had shown the judge.

And the three administrative detainees? One of them, Mordechai Meyer, was held in a high security wing in Eshel Prison for five months, until the Shabak finally admitted that here too “erroneous information” had been the basis for his incarceration and he was released. The other two were eventually released as well, with no charges filed. These are not isolated instances. There are numerous other cases of youth being detained and interrogated for days on end and then being released without charges.

The Jewish Unit seems to be permitted to use extraordinary means in vandalism cases, which cannot be defined as “ticking bombs” by any stretch of the imagination. On July 10, 2016, a large police force raided a yeshiva in Migdal HaEmek and arrested two minors, with a third boy arrested the next day. These three kids, aged 15 and 16, were denied basic rights, such as access to legal representation, until, under grueling Shabak interrogation, they confessed. What were they suspected of doing that justified denying them basic rights guaranteed to all citizens and the special protections granted to minors, especially for very young minors under age 16 and treating them as terrorists? Vandalism of cars! And they were eventually sentenced to community service

Most people would agree that terrorists should be apprehended and that this sometimes requires “extraordinary measures.” Thus, using extraordinary measures in the case of a “ticking bomb,” where it is suspected that information can be extracted using physical techniques and then readily verified, e.g., the location of hidden weapons, seems justified. This was upheld by the Supreme Court in a December 2017 case against Assad Abu Ghosh. In that case, based on intelligence information, the suspect was interrogated until he disclosed significant information about an explosives lab that he ran, details about planning of terrorist activity, and the discovery of an explosives belt that had already been smuggled into Tel Aviv. In contrast, torture to extract a confession is less justifiable, whether the suspect is Jew or Arab, citizen, or foreigner. Except in the most extreme circumstances a person may not be held without access to legal representation. Minors, and certainly those under 16, may not be questioned without their parents present. Did the Migdal HaEmek case warrant atypical measures? From the publicly available information it seems not.

The Shabak’s Jewish branch targets youth who wear big kipot and sport long peyote. Tomorrow another part of society may be the target of the secret service. Where is the outcry from human rights organizations, child welfare groups, the press, the bar association, religious leaders, and most importantly the elected officials who are supposed to be overseeing the criminal justice system?

When extreme measures are used, the standard of proof should be much higher than for a simple interrogation. There is supposedly a system in place. The Shabak must let a judge see the secret evidence and the judge then must determine if it warrants denying basic rights. What evidence was shown to the judge regarding Furkowitz and Meyer? The Migdal Ha’emek boys? Was it fabricated? Then someone should be brought to justice. Was the judge derelict in his duties? Were there orders from the political establishment? Or was there such shoddy work done that someone should lose their job?

In an almost comical charade, Deputy Attorney General Raz Nizri visited the Duma detainees on December 26, 2015, and declared to the world that they were in good shape and had relatively minor complaints. How bizarre. These boys had seen no one but their tormentors for a month. Their interrogators came at all times of day and night and used methods that include lies and psychological torture. Suddenly, one night, a man shows up claiming to be the deputy attorney general and he wants to talk to them in private and hear “the truth” about how they are being treated. One has to be delusional to imagine that these boys trusted this man and told him anything. Why should they trust him? To think that these guys, who would no longer trust anyone, trusted this late night dungeon visitor is the height of gullibility.

Clearly, something is terribly wrong with the checks and balances and there needs to be an investigation into how these extreme measures were approved. The judicial and political oversight of the Shabak seems to have failed its citizens. Two years ago at the height of the Duma investigation, Minister Naftali Bennet cynically asked: “Do you prefer to believe [attorney] Itamar Ben-Gvir or [Jewish Home’s Justice Minister] Ayelet Shaked [who was supposedly overseeing the Shabak]?” Most citizens would have preferred to believe Shaked that all was well with the justice system. Unfortunately, at this point, the conclusion is inevitable that the establishment has lost its credibility. The two young men still being held without trial should be speedily given their day in court sans the extracted confessions.

Note that Prisoner E has a hearing scheduled for March 15, in which the courts are to decide whether to admit the extracted confession. Let us hope that the judicial oversight fulfills its obligation.

About the Author
Ari Zivotofsky is a professor of neuroscience at Bar Ilan University. Also trained as a rabbi and shochet, he has a masters degree in Jewish history. He has written extensively on topics of Jewish history, culture, and traditions, in particular in Mishpacha magazine and in his regular column (now running 20+ years) in the OU magazine Jewish Action.
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