The use of secret evidence arises within a range of contexts, perhaps most notably within the context of administrative detention. In the West Bank, which is subject to a military regime of belligerent occupation, administrative detentions are based on a military order. This authorizes the military commanders to order a person to be placed in administrative detention for indefinitely renewable periods of up to six months, if there are “reasonable grounds” to presume that the “reasons of state or public security” so require. Administrative detention in the West Bank is treated as a routine measure: as of April 2008, 790 Palestinians were being held in administrative detention. Most of the information provided to the military judges concerning the reasons for detention is classified, and the judges generally refuse the defense counsel’s request that the classified material be provided to them. Thus, the detainee and his or her lawyer have no access to this information, and thereby no effective means of mounting a substantive defense against a potentially arbitrary and indefinite deprivation of the detainee’s liberty.
Secret evidence is also widely used by the General Security Services (GSS) as the basis for their classification of tens of thousands of Palestinians as security risks who are therefore subject to severe freedom of movement restrictions, such as traveling abroad, entering Israel, and entering the seam zone. Some 200,000 Palestinians, for example, are denied entry into Israel on the basis of undisclosed classified information, and are thus stripped of their right to rebut the evidence against them.
Secret evidence is also used as the basis for rejecting family unification applications by Palestinians (in the remaining cases where submitting such applications is still possible, given the growing legal restrictions on such applications) if they or their relatives are considered to pose a security threat. Again, the applicants are denied access to the allegedly incriminating evidence against them, and thereby have no effective means of contesting the grounds of the rejection of their applications and the ensuing denial of their right to family life.
By violating basic tenets of due process, the use of secret evidence poses tremendous challenges to the administration of justice and the upholding of core democratic values. The judiciary in Israel has largely failed to fulfill its critical role of acting as a counter balance to the State’s tendencies to secrecy – tendencies which are heightened during times of conflict and crisis. The courts have thus far failed to monitor and limit the use of secret evidence, and develop procedural safeguards to prevent its misuse and the infringement of human rights that it entails. In case after case, the Israeli courts capitulate to the State’s secrecy claims.
Resources on Secret Evidence::
ACRI Denounces Illegal Decision by HCJ Judges to hear Classified GSS Evidence, March 2009
