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By Ido Rosenzweig and Yuval Shany
Introduction
On 21 April 2010, Jerusalem District Court Judge, Arie Romanov, published his decision to release an unlawful combatant, who had been held in administrative detention for 11 months under the Incarceration of Unlawful Combatants Law 2002 (hereinafter: "the Unlawful Combatants Law", or the "2002 Law").[1] The detainee had already completed a criminal sentence of 5.5 years of imprisonment when the detention order was issued. Judge Romanov held that considering the time that has passed since the onset of detention and the lack of new information implicating the detainee in security threatening activity, the detainee should be released.
In this article, we address this decision as part of the IDI's Terrorism and Democracy Newsletter ongoing coverage of the application of the Unlawful Combatants Law as a counter-terrorism measure.
Background
On 14 May 2009, the appellant, Tarak Uni Isa Isuy, a Palestinian from Gaza, completed a 5.5 year prison term imposed by a military court for security offenses. On the day of his release, he was notified of the State’s decision to continue his detention under the Unlawful Combatants Law. On 4 June 2009, the appellant was brought before the District Court for judicial review in accordance with Article 5 of the Unlawful Combatants Law.[2] Jerusalem District Court Judge, Judge Joseph Shapira, determined that the sentencing of the appellant for security offenses provided sufficient grounds to also consider him an unlawful combatant whose release would endanger the security of the State under the terms of the 2002 Law. Therefore, the detention order was approved and the next judicial review was scheduled for four months later.
Isuy appealed the decision to the Supreme Court, which rejected the appeal on 30 June 2009.[3] In her decision, Justice Arbel held that periodic judicial review was established by the Unlawful Combatants Law in order to balance national security requirements and the detainee's right to liberty, and that in this case, there was enough information and evidence to support the detention.
The following judicial review was conducted on 30 November 2009 before Judge Shapira, who once again held that the balance between the threat that Isuy posed to the security of the State and his right to freedom militated against his release and, therefore, he should remain in detention. Another judicial review was scheduled for four months later.[4]
On 21 April 2010, the judicial review was held before Judge Arie Romanov, who decided to release Isuy.[5]
The Decision
In his decision, Judge Romanov held that the time that had passed since Isuy's initial criminal detention, as well as the beginning of his administrative detention must be taken into consideration in a judicial review of the administrative detention of an unlawful combatant. According to Judge Romanov, there are two possible implications to the time passed: On one hand, an extended period of detention may increase Isuy's determination to rejoin the struggle against Israel following his release. On the other hand, distance from the environment of terrorist activity might diminish the chances that he will return to such activity.
Judge Romanov noted the length of the time that had passed since the beginning of Isuy's arrest and detention (over six years) and the fact that during this period of time no new evidence had been gathered to demonstrate that he still posed a danger. Hence, the evidence presented to the Court in the proceedings under the 2002 Law was the same evidence upon which he was convicted in the criminal procedure. These factors affect the balance between security considerations and the right to liberty, and the arguments in favor of his release become stronger as the detention time becomes longer. After considering all the relevant arguments, Judge Romanov concluded that Isuy should be released.
Conclusions
In his decision, Judge Romanov applied the long-running jurisprudence of the Supreme Court, noting that severe measures, such as administrative detention or detention under the Unlawful Combatants Law, which may, in theory, allow for the indefinite detention of a person, should be used cautiously, and that the longer the detention, the greater the requirement to provide for stronger evidence in order to continue it. In the present case, this presumption was reinforced by the problematic practice of detaining individuals who have already served a criminal sentence. Although, the goals and evidentiary basis of administrative detention (or detention pursuant to the 2002 Law) differ from those of criminal incarceration, there are serious concerns that the back-to-back application of criminal and administrative detentions implies that the individual in question is being punished twice for the same offense. Concerns for the “appearance of justice” of this nature may have also led to the particularly close scrutiny of the grounds for detention by Judge Romanov in this case.
At another level, this case demonstrates the effectiveness of the periodic judicial review mechanism embedded in the Unlawful Combatants Law. In a period of 11 month, Isuy's administrative detention was brought before the judicial system four times, and this period of time was deemed sufficient to alter the circumstances and facilitate his release. Thus, although detentions under the 2002 Law may, in theory, run indefinitely, the frequent review of the detention (and the increasingly heavy burden of proof placed on the State) appears to limit, in practice, the ability to detain suspected terrorists for extremely prolonged periods of time.
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