In July 2008, ACRI intervened to Attorney General Meni Mazuz, challenging the General Security Services’ (GSS) conception that legitimate political discourse – if it challenges the Jewish character of the State – constitutes a security threat, and demanded that it not be treated as such. Democratic states must protect the minority populations living within it. As such, ACRI claimed that advocating for a change in the relationship of the state to those nationalities through political discourse and the media, for example, does not threaten the security of the state, but rather represents the basic elements of democratic discourse.
Mr. Meni Mazuz
Re: GSS Interference in Legitimate Civilian Activity
Dear Mr. Mazuz,
Further to our previous correspondence in which we expressed our vehement protest against the illegal involvement of the General Security Services (GSS) in legitimate political and public activity, we are again compelled to approach you about the same matter. This follows a marked rise in the number of illegal and harassing interrogations of political and civil society activists, some of which were approved by you, as emerged from the replies we received to our questions. We believe that these illegal interrogations are a direct result of the dangerous view of the GSS that accords too broad and vague a meaning to the term “subversive”, applying it to critiques and legal activity regarding the Jewish character of the state of Israel.
Our previous approaches to you concerning the interference of the GSS in the legal activity of political parties, the media, and civil society, include: our letter from 15 November 2005 concerning the summons of Arab journalists for interrogation by the GSS; our letter from 19 January 2006 concerning the violation of the rights of Arab journalists and the issue of a stay-of-exit order against the writer and journalist Antoine Shalechet; our letter from 21 March 2007 about the conduct of the GSS regarding the newspaper Fasal al-Makal; our letter from 7 April 2008 concerning the demand made by the GSS that Balad Party activists undertake in writing not to be in contact with former MK Dr. Azmi Bishara; and our letter from 5 June 2008 concerning the intervention of the GSS in the work of the organization Physicians for Human Rights – Israel.
The broad and vague interpretation given by the GSS to the term “subversive” can be learned from a letter addressed to you from the director of the GSS on 26 April 2007 (hereinafter “the letter”), written in coordination with you and with your approval. This letter, which responds to statements by the Association for Civil Rights in Israel regarding the reply given by the GSS to Fasal al-Makal, notes:
The Service therefore has responsibility, inter alia, for dealing with instances of subversive behavior directed against the democratic order and its institutions: the concept “subversive”, naturally, is vague. In the present context, the position of the GSS is that subversiveness could also include efforts to change the fundamental values of the state by abolishing its democratic or Jewish character, which would be subversive of the democratic order and its institutions.
The letter also states:
On the broad public level, clearly there is no prohibition against expressing a view that contradicts the values of Israel as a Jewish and democratic state, on condition that this is expressed in the framework of the law: expression of such a view, so long as it does not include illegal activity, is part of the right to freedom of expression.
Although the letter seemingly qualifies the broad and dangerous statement made by the GSS to the newspaper Fasal al-Makal, noting that the GSS views itself responsible for “thwarting subversive activity of parties that wish to harm the character of Israel as a Jewish and democratic state, even if their activity uses the tools of democracy, based on the principle of defensive democracy”. Nevertheless, this view is illegal and riddled with errors, as will be shown below.
The mission of the GSS can be learned from Parag. 7(a) of the General Security Service Law (2002), which declares:
The Service shall be responsible for safeguarding state security, the democratic order and its institutions against threats of terrorism, sabotage, subversion, espionage, and disclosure of state secrets, and shall also act to protect and promote other state interests vital for national state security, all as prescribed by the government and subject to every law.
First, as is clear from this definition, safeguarding the Jewish character of the state is not among the missions or functions of the GSS. Not only is the GSS position inconsistent with the provisions of Parag. 7(a) above, it contradicts the fundamental principles of liberal democracy. Liberal democracy tolerates a variety of models of relationship between the state and national groups within its borders. Liberal democracy can exist as a binational state, a multicultural state, or a federation. It can provide autonomy of various sorts to minority groups, and can confer veto power to these groups over specific matters.
The position is untenable that advocating for change in the relationship of a state to nationalities that live there or a change in its self-definition ipso facto has the potential to harm the institutions of democracy. On the contrary, clarification of such issues is at the very heart of democratic discourse.
Second, the GSS letter notes that public expression of a view against the Jewish character of the state is not prohibited by law. This statement raises the question of whether it is your position and the position of the GSS that expressing opposition to the Jewish character of the state, other than in a public manner, would be regarded as subversive activity? To clarify this, we ask that you relate to two examples. The first concerns the subject of national service, which over the past year has become the paramount issue on the political agenda of Arab leaders in Israel. It can be claimed that broad consensus exists among Arab political parties and movements against Arab young people volunteering for national service. Most base their opposition to national service on a principled opposition to the Jewish character of the state.
For purposes of this discussion, let us assume that the political leadership of the Arab public decides not to make do with articulating its view against national service (and the Jewish character of the state), but establishes bodies to raise public awareness, i.e., to convince young Arabs not to volunteer for national service. Does this constitute subversive activity? According to the GSS, it apparently does. This can also be learned from the interrogation of Balad Party activists who were involved in or partner to public advocacy against national service. During the course of these interrogations, they were specifically required to “explain” their view about national service, while the interrogators conveyed a clear message that public activity against national service is illegitimate in the eyes of the GSS. This position of the GSS is illegal, however, as it significantly constrains the political freedom of Arab citizens and concretely harms their ability to defend their legitimate interests as members of a national minority group.
Another example, which sharpens the problematic nature of the GSS position, is the following: Let us assume that a group of Arab intellectuals and political activists decide to found a public political movement that calls for establishment of a binational state in Israel. Let us also assume that this movement decides to direct its appeal to both the Jewish and Arab sectors in Israel in an effort to persuade them of the correctness of this view – that a binational-democratic state is more just and egalitarian than a Jewish-democratic state. Is this a subversive movement? Based on the position of the GSS, the answer is likely to be ‘yes’, since this movement goes beyond expressing a view against the Jewish character of the state, translating this opposition into political activity.
However, the demand to change the relationship of the state to the national groups who live there, based on democratic-liberal values and, above all, the principle of equal citizenship, does not in any way, shape or form constitute subversion. The fact that such a movement could be disqualified from participating in the Knesset elections based on Parag. 7(a) to the Basic Law: The Knesset neither strengthens nor weakens this case. On the contrary, this fact raises serious questions about the legitimacy of disqualifying electoral lists from parties whose platform shows a commitment to the fundamental principles of liberal democracy simply because of their demand to change the relationship of the state to the national groups within its borders subject to the fundamental principles of democracy.
Third, the letter states:
Concerning activity that is not illegal – when the activity of a body “clashes with” the democratic order and its institutions, it is the role of the GSS to collect and analyze information about the activity of this body to ensure that it does not deteriorate into illegal activity or serve as a cover for it. In general, when the activity is open and public, the GSS will act with restraint and not engage in surveillance, but merely study and research it based only on open materials. On the other hand, when there is a basis for suspicion that activity is taking place that has subversive and covert elements, this could justify the use of surveillance tools such as wiretapping, etc.
The wording of this paragraph raises deep concerns about the methods employed by the GSS against bodies which, in their view, “clash with” the ruling order. In this paragraph, a distinction is made between public and covert activity. This distinction assumes incorrectly the full overlap between activity that is not public and covert activity. But this assumption is misleading. Not all political activity that is not public is covert in the “subversive” sense of “covert”. For example, political parties or their central committees hold many meetings that are not public, but this does not turn them into covert and subversive meetings. Ignoring the distinction between “activity that is not public” and “covert activity” gives a green light to the GSS to eavesdrop on closed meetings of Arab political parties. Because, according to the improper reasoning of the GSS, the concept “subversive” includes the demand to change the Jewish character of the state.
The Arab political parties, most of which take issue with defining Israel as a Jewish state because of the negative implications of this definition on the status of Arab citizens, become seen by the GSS as parties whose activities “clash with” the ruling order. For the GSS, this “clash” justifies the use of surveillance against the non-public activity of that party, i.e., it justifies wiretaps and monitoring of closed meetings or any non-public activity of the Arab parties. This is also true for activist movements and organizations in the Arab sector that are not political parties. A state that presumes to be a democracy cannot allow itself to carry out routine wiretaps against political parties and movements that represent a significant national minority. This fact alone subverts the foundations of democracy.
A liberal democracy does indeed have to defend itself sometimes from attempts to harm its institutions and values. But how the GSS uses the term “defensive democracy” is misleading and distorted. The GSS sees a parallel between those who oppose the liberal democratic system of rule – with its deep commitment to human rights and the free and open discussion of how to shape society – and those who oppose the Jewish character of the state. Opposing democracy as a form of governance and value system could, in extreme cases, justify such a defensive posture. But opposing the Jewish character of the state cannot be considered illegitimate or subversive so long as this opposition is rooted in and committed to democratic values, since such opposition is within the bounds of legitimate democratic discourse and its “victory” or “defeat” in the public realm will be determined by democratic tools that exist for resolving disputes about values.
The legal and democratic method of self-defense from subversion of the foundations of democracy is the legislation of open laws that are exposed to public, constitutional, and judicial scrutiny and review. Israeli law includes many provisions, some of them disproportionate, whose aim is to safeguard democracy and its institutions, including detailed security laws and criminal prohibitions that encroach upon classical human rights such as, for example, offenses against incitement to violence or racist statements, which limit the individual’s freedom of expression. The principle of “defensive democracy” does not justify the monitoring of political activity that is not prohibited by law, and it certainly does not justify efforts by the GSS to change the rules of the democratic game. Restricting the civil and political rights of citizens is the mandate of the legislative arm, not the GSS.
The recent conduct of the GSS seems to suggest that it is following or has conceived a plan for eliminating political and public activity that is not illegal, but “clashes with” – to use the GSS phrasing – the definition of Israel as a Jewish state. How can legal public activity be proscribed? After all, people who have not carried out a crime cannot be put on trial. In light of this reality, we are under the impression, to our grave concern, that the GSS has begun operating like “big brother”.
In this system, the GSS summons people for interrogation whose political or public activity is not to their liking. Common to these interrogations are two messages conveyed to those interrogated: (a) that they are under the constant surveillance of the GSS; and (b) a latent threat, conveyed by relating to the interrogatee’s “private life”, that if he persists in this activity, he could find himself accused of security offenses. This form of interrogation was among the methods used against Arab journalists regarding their contacts with journalists from the Arab world, against activists from the Balad Party for their personal relations with Dr. Azmi Bishara, and against an employee of Physicians for Human Rights – Israel for arranging visits of medical teams to the Gaza Strip on behalf of the organization. All received the message that the GSS is monitoring them, and that they are liable to find themselves indicted for contact with a foreign agent even though their activities were completely legitimate and legal.
The methods used by the GSS resemble systems of oppression used in totalitarian regimes. A totalitarian regime uses intimidation to control citizens and force on them its political ideology. The feeling of citizens that they are under constant surveillance, and their fear of “getting in trouble” with law-enforcement authorities is enough to create a “cooling effect” and mechanisms of self-control. The interrogations conducted by the GSS are intended to achieve the same goal – to instill fear in those interrogated and deter them from public activism and, in the case of journalists, to foster self-censorship.
A state that presumes to be democratic cannot tolerate such methods of interrogation, control, and oppression, methods that bring to mind the behavior of totalitarian regimes. It is not the said public and political activity that “clashes with” the rule of law, but rather the improper conduct of the GSS itself.
This policy of the GSS not only violates human rights and fundamental democratic values, it could also lead to results that are contrary to what its proponents had desired. The concern is that those who currently use the tools afforded by democracy to publicly address controversial political issues will be deterred by the campaign of intimidation and persecution conducted by the GSS, leading to these issues being discussed far from the public light. If this happens, the currently baseless accusations of secrecy could regretfully become a self-fulfilling prophecy. Adherence to the fundamental principles, including the freedom of expression and the freedom of political activity, remains the best safeguard not only of a democratic government, but of its security. It is superfluous to note that protecting the “democratic rule of law and its institutions”, which is the main mandate of the GSS, obligates it also to protect freedom of expression from threats to it, and not to terrorize in order to silence critics.
We therefore request that you instruct the GSS concerning the boundaries and constraints on its authority in the spirit of the above.
Yours very truly,
Sonia Boulus, Attorney
Dan Yakir, Attorney
Chief Legal Counsel