The Unseen Shield

By Elliot Jager
Tuesday, April 3, 2012

The news report hardly makes an impression on most Israelis: another West Bank checkpoint search, another discovery of explosives and weapons, and the familiar finale: "The suspect was taken in for questioning by the Shin Bet."

The main responsibility of the Shin Bet—Israel's General Security Service, or "Shabak"—is defending Israel from the long war against the Zionist enterprise.  As "moderate" Palestinian leaders urge their followers to deny the Jewish people their right to sovereignty anywhere in the Middle East, and "militant" leaders preach "resistance" and "armed struggle," the Shin Bet must constantly calibrate strategies and perfect operational tactics.  More, it must operate within the rule of law and the moral imperatives embodied in Jewish tradition and Western civilization.

One might expect an agency charged with staving off murderous fanatics to bristle under such constraints.  Not so.  The Shin Bet's institutional commitment to law and morality was on display earlier this month, when members of the Israeli intelligence community, academics, and students gathered at the College of Management law school in Rishon Lezion to mark the tenth anniversary of the Knesset's passage of the "Shin Bet Law."

With this legislation, which clarified function and jurisdiction, Israel's domestic security agency came in from the cold.  The prime minister was confirmed as its ultimate authority, the tenure of its chief (the name no longer a state secret) set at five years, and procedures put in place for intra-agency, governmental, and ministerial oversight.  The law required the agency's internal auditor to submit an annual report to officials monitoring its classified work.  The law also codified the agency's authority to collect information and question suspects.  No longer did the Shin Bet operate in a legal twilight zone.

Even today, no one would claim that the Shabak offers tea and biscuits to those it suspects of enabling the murder of Israelis; and the Shin Bet Law emphatically does not address every legal and ethical question.  As Yoram Rabin, the College of Management's law dean, acknowledged, it has not erased the inherent tensions between domestic intelligence needs and the protection of civil liberties.  Indeed, as Professor Suzie Navot noted, the legislation is purposely vague: It orders the Shin Bet to preserve "essential state interests" but fails to define them.

Deficiencies notwithstanding, former Shin Bet chief Avi Dichter (2000-2005) believes the legislation advances both security and the rule of law.  He traced the law's impetus to questionable conduct by some Shin Bet agents during the 1980s.  In 1984, agents summarily executed two terrorists from the Popular Front for the Liberation of Palestine who had hijacked passengers en route from Tel Aviv to Ashkelon in what came to be known as the Bus Number 300 Affair; worse, the Shin Bet sought to cover up its actions.  In 1987, Israel's Supreme Court ordered the release, after seven years of wrongful imprisonment, of IDF Lieutenant Colonel Izzat Nafsu, a Circassian tortured into confessing to espionage he did not commit.  Chaim Herzog, then Israel's president, declared himself "ashamed" by the incident. 

In November 1987, a commission headed by former Supreme Court Justice Moshe Landau offered classified guidelines, adopted by the Cabinet, for the use of a "moderate measure of physical pressure" during interrogations.  But during the first intifada, after an Islamic Jihad suicide bombing exploded the Number 405 bus from Tel Aviv to Jerusalem, murdering 16 passengers, the Shin Bet came under increasing pressure to keep Israelis safe.  Dichter recalled a December 1989 incident in which Palestinian gunmen ambushed and killed two IDF reservists in the Gaza Strip.  A number of suspects were arrested, including Khalid Sheikh Ali.  Investigators found axes and masks in his home.  In an effort to discover the location of his cell's arsenal and plans for further attacks, interrogators reportedly tortured him to death.  The incident left the institution traumatized and its leaders soul-searching.

Then, in 1999, Landau's guidelines were muddled by Israel's Supreme Court, under Aharon Barak, which essentially ruled that force could not be employed during interrogations—though agents dealing with a "ticking bomb" could use a "necessary defense" argument if they were criminally charged.  By the time Shin Bet chief Ami Ayalon (1996-2000) stepped down and Dichter took over, the political climate was ripe for a law that would protect agency operatives from charges of working in the state's interests but operating outside its laws.  If the price for a shield of legitimacy was oversight, the Shin Bet was ready to pay it.  

The new law, the audience was told by former Shin Bet general counsel Aryeh Roter, who drafted the bill ultimately passed by the Knesset, showed that terror could be combated within a legal and comparatively transparent framework.

As Barak recognized, the most difficult cases involve "ticking bombs" that give investigators little time to elicit details of impending attacks.  During the deliberations over the Shin Bet Law, then-Justice Minister Meir Sheetrit said he would not allow torture to be enshrined in legislation.  But current procedures, said Dichter—which require multiple authorizations "at three o'clock in the morning" from officials up and down the political and legal chain of command—are unworkable when agents confront a suspect "who refuses to reveal at which bus depot in the country a bomb has been set to explode later that morning during rush hour."  What can be done, he said, is to rationalize the process of obtaining internal approvals so that agents can operate legally in real-world situations.  

Ten years after the law's passage, the Shin Bet, whose motto is "the unseen shield," operates with comparative transparency, providing its personnel with a deserved sense of legal propriety as they fulfill the grave responsibility of keeping Israelis out of harm's way.  Israelis do not expect the Shabak to play by Marquess of Queensbury rules, but many take comfort from the fact that those at the front lines of Israel's struggle for survival do not capriciously violate the principles that distinguish Jewish and Western civilizations from the darkness their enemies would impose on us all.


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