Written by Haim Ravia and Dotan Hammer
The Supreme Court of Israel issued a provisional order in the petition filed by the Association for Civil Rights in Israel against the expansion of powers granted to the Israeli Security Agency (ISA). The Supreme Court’s order compels the respondents (the Israeli government, the Israeli Security Agency (ISA), the Foreign Affairs and Security Committee of the Knesset (the Israeli Parliament)), to justify why the ISA’s extended authority should not be limited to exigent or clandestine circumstances.
Israeli Security Agency Law, which governs the operation of the ISA, allows the Israeli government to instruct the ISA to carry out “an activity in another field determined by the government, with the approval of the Knesset Committee on ISA Affairs, which is intended to protect and promote state interests vital to the national security of the country.” By virtue of the provision in the statute, the ISA has been authorized to engage in COVID contact tracing during the pandemic.
The petition seeks to rescind the government decisions that extended the Israeli Security Agency’s functions beyond the six functions expressly enumerated in the statute governing the operation of the ISA. The Association for Civil Rights asserts that the extension of powers was done secretively, without publication, and far from the public eye.
Notably, in 2020, the High Court of Justice ruled that if the government wishes to continue authorizing the ISA to engage in COVID contact tracing, the government must resort to a full legislative amendment of the statute at the Knesset, and cannot make so with merely a governmental decision.
The state, on the other hand, asserts that the mechanism in the Israeli Security Agency Law is balanced and measured, allowing the Israeli Security Agency to be assigned additional roles only through a government decision with the approval of the relevant Knesset Committee, and only if the roles are intended to preserve and promote state interests essential to Israel’s national security. The state insists that in codifying this mechanism to extend the ISA’s tasks, the legislature has already balanced the state’s security needs with the rule of law and human rights. The state also explained that in the 20 years since the mechanism was established in the law, the ISA was assigned only five additional duties by virtue of that section of the law. Other than the COVID contact-tracing task, the ISA was also tasked with maintaining reciprocal relations with public agencies and intelligence and security agencies, the rehabilitation of intelligence assets, and “tasks that relate to the collection and receipt of information in targeted areas and a limited manner”.
Click here to read the full Supreme Court order (in Hebrew).
Click here to read the petition of the Civil Rights Association (in Hebrew).
Click here to read the state’s response to the petition (in Hebrew).
