The Knesset Constitution, Law and Justice Committee discussed on Monday a request by the Shabak (General Security Service) and the state prosecution to change the laws of evidence in terrorism cases so that courts would be able to accept as evidence incriminating statements made outside of court and even before a defendant may even be under investigation.
A representative of the Shabak told the committee that the agency had been forced to release many terrorists and will continue to have to do so without a major change to the laws. “In many cases, we collected testimony from Palestinians, or infiltrators, about terrorists who were not yet arrested. With these testimonies we collected large amounts of information about terrorist activity in Gaza,” the official said, adding, “After time had passed and a terrorist suspect was arrested, sometimes with arch terrorists, we could not bring a witness to testify in court, because he had already been released, which forced us to release arch-terrorists to Gaza.”
Attorney-General Yehuda Weinstein claimed that changing the law could help bring to justice terrorists who otherwise get put in administrative detention.
But the committee’s legal adviser said security agencies should try, as much as possible, to avoid taking testimony outside of court. She said changing the laws would be dangerous, as this would overturn a basic principle of criminal law requiring testimony to be given in court, which allows a defendant to cross-examine his accuser.
Deputy Attorney-General Raz Nizri said during the meeting that “Most of the law’s provisions do not depart from criminal law. This is the uniqueness of terrorism.”
Nizri rejected a suggestion to allow pre-indictment testimony by witnesses in custody in place of the more fundamental new rule change, saying he thinks a defendant’s rights could be protected by directing the court to give lesser weight to such statements in deciding whether to convict.
Committee Chairman MK Nissan Slomiansky (HaBayit HaYehudi) said it is permitted to deviate from criminal law when dealing with terror. “We have in custody a person who gives us information about a suspect we do not have in custody yet. It seems reasonable to me to accept the witness’s testimony if we cannot bring him before a court.”
MK Haim Jelin (Yesh Atid) said “these testimonies are ‘gold,’ and they will allow us to catch the next terrorist. I don’t care about cross-examination. It’s humane as far as I am concerned. The jihadists are doing to Hamas what Hamas did to the Palestinian Authority.”
MK Anat Berko (Likud) said “the war on terror is not an exact science. We must give the forces the tools to gather as much intelligence as possible. Bringing them before a temporary court is not practical. We will be accused of opening a field court.”