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by Ido Rosenzweig and Yuval Shany
Introduction
A new bill that proposes the revision of certain aspects of security-related legal procedures was published on December 21, 2008 by the Ministry of Justice. The bill seeks to facilitate a greater involvement of security-cleared lawyers and experts in security-related proceedings by allowing them to view part of the classified information in security-sensitive cases and to assist their clients in all relevant legal procedures (not only in some criminal law proceedings, as is the case today). The bill, if approved, will provide individuals implicated in security-related issues with more legal options, such as recourse to tort claims (such claims cannot be brought today if based on classified material).
Nevertheless, although the new bill is designed to facilitate accessibility to the judicial system and to provide for fairer legal procedures, it fails to satisfactorily address certain human rights related issues.
Background
The question of using classified information in legal cases involving the security of the State of Israel is a crucial one. It underscores the need to balance national security requirements and the right to a fair trial. Clearly, if defendants do not have access to evidence leveled against them, they cannot challenge it. Hence, their right to a fair trial, a fundamental principle under both Israeli law[1] and international law[2], is compromised.
Israeli law acknowledges this conflict and while it enables the classification of evidence that could endanger the security of the State of Israel or its international relations,[3] the decision to classify information is subject to judicial review by the Supreme Court. If the Supreme Court invalidates a decision to classify evidence in a criminal case, the State still has the option of withdrawing the criminal charges (rather than revealing the evidence in question). The Supreme Court is expected to oppose classification on the basis of considerations of justice when the evidence is exculpatory in nature.[4]
In most security-related criminal cases, part of the evidence is classified. The solution developed to address some of the complications arising from this situation is the creation of a pool of security-cleared lawyers who may review classified evidence. The review of the evidence by proxies of the defendants enables conducting a full criminal procedure.[5]
In a Supreme Court decision issued in 2007,[6] Justice Grunis noted that in many instances, the disclosure of the classified evidence together with the requirement that the defendant's legal representative have the appropriate level of security clearance constitutes an apt solution for civil procedures as well. However, he noted that it was the responsibility of the legislative branch, and not the judicial branch, to introduce this new procedure.
The Ministry of Justice presented the draft of the bill on December 21, 2008, which is expected to be taken up for the first reading in the next session of the Knesset that will commence on May 3, 2009.
The New Bill
The new government-sponsored bill is meant to implement Justice Grunis' recommendation and to extend the current procedure governing access of lawyers and other experts to classified information in civil and administrative procedures as well.
According to the proposal, the Prime Minister or the Minister of Defense may opt to classify a legal procedure for security reasons. The classified information related to the procedure will remain inaccessible to the parties of the case, who will be notified of the decision to classify. When a proceeding is classified, the security services will designate a level of classification. This level of classification cannot be challenged by the parties; only the security services can alter it (on the basis of the introduction of new information). After the level of classification is established, only lawyers and other experts who have been granted security clearance at the specific classification level of that proceeding may engage in it.[7] In order to expedite the process of appointment, a pool of authorized lawyers will be created.
Parties that seek to designate a specific lawyer or expert, who is not already in the pre-approved pool, to act on their behalf, must obtain ad-hoc authorization from the security services' representative. If the representative denies clearance, the lawyer or expert may appeal to a Special Appeals Committee, which is headed by a judge. An appeal of the committee's decision may then be presented before the Supreme Court. Lawyers who are already in the Public Defender's pre-approved pool and who have the proper level of security clearance do not require ad-hoc authorization from the security system's representative. (This also applies to military cases, for which there is a Military Defender's pre-approved pool.) It should be mentioned that the need for issuing a permit to experts arises only if such experts are expected to be exposed to classified information during their involvement in the case.
According to the explanatory notes appended to the bill, comparable legislation already exists in the United States (Classified Information Procedures Act), Australia (National Security Information [Criminal and Civil Proceedings] Act 2004) and Germany (German Criminal Procedure Code).
Conclusion
The idea behind this bill is to expand the legal options available to parties in cases involving security-related classified information and to facilitate the effective participation in such proceedings of lawyers and other experts. However, it seems plausible to assume that this new procedure will not necessarily favor private parties since the availability of this procedure may increase attempts to classify information used in legal procedures.
Moreover, the comparable legislation alluded to in the explanatory notes is specific only to criminal procedures and cannot be automatically transposed to civil procedures. Furthermore, the House of Lords in the UK has recently determined[8] that when dealing with an administrative procedure, which has consequences no less serious in nature than criminal proceedings, e.g., restrictions on liberty, certain basic rights must be preserved, such as the presumption of innocence and the right to a fair trial. Therefore, the use of classified information in civil procedures and especially in administrative detention, which involves the deprivation of liberty, should be subject to strict scrutiny in accordance with the strict standards that apply to criminal procedures.
Another difficult issue that the bill raises is the impossibility of challenging the level of classification that is determined by the security services.[9] This administrative decision, which regulates the parties ability to choose specific lawyers and experts, is protected from scrutiny, and it would have been more prudent to subject such sweeping authority to judicial review (like the judicial review of "Classification Orders", which exists under existing criminal procedural legislation).
Nevertheless, it remains to be seen what type of legal procedures will be classified as confidential by the Prime Minister or the Minister of Defense and which experts will be afforded security clearance (and at what level). These questions will remain open at least until the completion of the reading of the bill in the Knesset.
Notes
[1] CHR [Criminal Hearing Request] 2379/01 Freedman v. Israeli Police
[2] Article 10 of the Universal Declaration of Human Rights, Article 14 of the International Covenant for Civil and Political Rights
[3] Article 44 of the Evidence Order, 1971
[4] CHR [Criminal Hearing Request] 1924/93 Greenberg v. State of Israel
[5] Article 14 of the Criminal Procedure Law
[6] CAR [Civil Appeal Request] 7114/05 The State of Israel v. Chana Hizi et al, 11/12/2007
[7] An expert whose testimony does not entail exposure to the classified material of the case is exempt from the requirement of security clearance.
[8] Secretary of State for the House Department v. MB, October 31, 2007 http://www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/home-1.htm
[9] Article 8(b) of the Bill
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