PRIVILEGED EVIDENCE AND STATE SECURITYUNDER THE ISRAELI LAW: ARE WE

DOOMED TO FAIL?

Ami Kobo*

INTRODUCTION

This Article attempts to examine the Israeli law surrounding thedoctrine of privileging evidence for security reasons or other public in-terests in criminal proceedings. It will also consider the risks of hidingrelevant evidence from the court and from the defense under the rules ofprivileged evidence.

Unfortunately, the Israeli legal system has extensive experiencewith the subjects of terror, secret evidence, and the exercise of state priv-ilege for security reasons or for the public interest. Due to Israel's secur-ity situation, its law has faced unique dilemmas and has developedseveral different approaches for solving them.

The Israeli law on privileged evidence seems to create the rightbalance between the country's significant security needs, on the onehand, and the rights of the defendant, and the need to prevent the riskof false conviction, on the other. There appear to be adequate safe-guards designed to protect security and other public interests in an eraof terror, while minimizing the risk of convicting an innocent defen-dant. However, a more careful examination of the Israeli experience inthese cases raises the possibility that Israel might be doomed to fail in itssearch for this balance. This Article asks: how likely is it that no rele-vant evidence will be hidden from the court and from the defense by abreach of its rules? Is it possible to avoid convicting innocent defend-ants when dealing with privileged evidence and security matters?

This Article will examine the rules of privileging evidence and thebalancing tests in Israeli law according to the Israeli Supreme Court's

* JSD candidate, Tel-Aviv University. Senior Deputy to the National Public Defender of Israel

Lecturer, The College of Management - Academic Studies Division (Rishon LeZion, Israel). ThisArticle is based on a lecture presented at the Benjamin N. Cardozo School of Law's conference "SecretEvidence and the Courts in the Age of National Security," which took place in December 2005. I amgrateful to Professor Russell Pearce from Fordham University for making my participation in theconference possible. I am particularly grateful to Dr. Oren Gazal-Ayal, Ms. Efrat Fink, Dr. GuyRotkopf Mr. Moshe Serogovich, Ms. Karin Meridor, and Ms. Tamar Nevo for their helpful remarks.

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interpretation. It will then discuss the implementation of the rules andcases where the system failed to work according to those rules.

I. THE LAW OF PRIVILEGED EVIDENCE TO PROTECT THE STATE

AND PUBLIC INTEREST

Before dealing with the rules of privilege, it should be understoodthat, under Israeli law, the defense is entitled to inspect and copy inves-tigation material.' Section 74 of Israel's Criminal Procedure Law statesthat "[w]here a statement of charge has been filed ...the accused andhis counsel .. .may at any reasonable time, inspect the material of theinvestigation in the possession of the prosecutor and make copiesthereof."2 Usually, "material of the investigation" consists of informa-tion relevant to the criminal case that has been collected by the policeduring investigation and transferred to the prosecution. The collectedmaterial transfers from the police to the prosecution even if it is relevantto the case only indirectly. After the material goes to the prosecutionand a charge is filed, the defense is allowed to inspect and copy theinvestigation material.3

If the state wants to avoid revealing relevant investigation material,it can do so by using the rules of privilege.4 The definition of "privi-leged evidence" and the procedure for privileging evidence are definedin Israel's Evidence Ordinance ("Evidence Ordinance") sections 44through 46.' A few basic points regarding these sections bear mention-

1 The rules of discovery provided under Israeli law are relatively liberal and defense-ori-

ented. Compared to the United States, the Israeli discovery rules give the defense much broaderrights to inspect investigation material than the rules according to Brady v. Maryland, 373 U.S.83 (1963). On the other hand, the rules that restrict the defense from talking with the witnessesfor the prosecution are prosecution-oriented. One can view the liberal discovery rules pertainingto the material of the investigation as a "compensation" for the restriction from meeting andtalking to prosecution witnesses. See also, Josef Wolf, National Security v. The Rights of the Ac-cused: The Israeli Experience, 20 CAL. W. INT'L L.J. 115, 125-26 (1989).

2 Criminal Procedure Law (Consolidated Version), 1982, S.H. 43.

3 CrimA 9322/99 Masrawa v. State of Israel, [2000] IsrSC(1) 376, 382-83.4 Section 78 of the Israel Criminal Procedure Law states: "The provisions of section 74 shall

not apply to material, concealment of which is permitted or disclosure of which is prohibited bylaw." Criminal Procedure Law (consolidated version), 1982, S.H. 43.

5 The relevant statutes are as follows:Section 44, Privilege for the State

(a) A person is not bound to give, and the Court shall not admit, evidenceregarding which the Prime Minister or the Minister of Defense, by certificateunder his hand, has expressed the opinion that its giving is likely to impair thesecurity of the State, or regarding which the Prime Minister or the Minister of

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ing. First, the phrase "a person is not bound to give, and the Courtshall not admit," found in sections 44 and 45, means that if the evi-dence is privileged, it is also inadmissible, and neither the defense northe prosecution can use the privileged evidence in court. The owner ofthe privilege is not the witness who gave the privileged information, butthe state, and only the state may waive the right to privilege theevidence.

7

Under the Evidence Ordinance, the state may put evidence underprivilege if a State Minister signs a "certificate of privilege" expressing

Foreign Affairs, by certificate under his hand, has expressed the opinion that itsgiving is likely to impair the foreign relations of the State, unless a Judge of theSupreme Court, on the petition of a party who desires the disclosure of the

evidence, finds that the necessity to disclose it for the purpose of doing justiceoutweighs the interest in its non-disclosure.

(b) Where a certificate as referred to in subsection (a) has been submitted to theCourt, the Court may, on the application of a party who desires the disclosure ofthe evidence, suspend the proceedings for a period fixed by it, in order to enablethe filing of a petition for disclosure of the evidence or, if it sees fit, until thedecision upon such a petition.

Section 45, Privilege for the public interest:

A person is not bound to give, and the Court shall not admit, evidence regardingwhich a Minister has expressed the opinion, by certificate under his hand, that itsgiving is likely to impair an important public interest, unless the trial court, onthe petition of a party who desires the disclosure of the evidence, finds that thenecessity to disclose it for the purpose of doing justice outweighs the interest inits non-disclosure.

Section 46(a), the hearing in the petition to disclose the evidence:

A petition for the disclosure of evidence under sections 44 or 45 shall be heard incamera; for the purpose of deciding upon the petition, the Judge of the SupremeCourt or the Court, as the case may be, may demand that the evidence or itscontents be brought to his or its knowledge, and he or it may receive explana-tions from the Attorney- General or his representative, and from a representativeof the Ministry concerned, even in the absence of the other parties.

Evidence Ordinance (New Version), 5731-1971, 2 LSI 198 (1968-72) (Isr.), §§ 44-46.6 This is true at trials. However, under the Emergency Powers (Detention) Act 1979, Sec.

6(c), in a hearing on administrative detention a court may decide not to disclose certain evi-dence to the detainee or to his counsel if such disclosure would threaten the security of the stateor the security of the public. Emergency Powers Detention Act, 5739-1979, 33 LSI 90, (1978-79) (Isr.). Furthermore, section 6(a) of the Act orders that, when authorizing a detention order,a court may base its decision on evidence and testimony that would be inadmissible in anordinary trial, if the court decides that such evidence will lead to the discovery of the truth andto just results. Id; see also E. Gross, Human Rights, Terrorism and the Problem of AdministrativeDetention in Israel.- Does a Democracy Have the Right to Hold Terrorists as Bargaining Chips?, 18

ARIz. J. INT'L & COMP. L. 721, 773 (2001). For further discussion of emergency laws and thelaw applied in the West Bank see Wolf, supra note 1, at 129-45.

7 J. KEDMY, ON EVIDENCE 874-75 (Tel-Aviv 2004).

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the opinion that the evidence at issue is likely to impair state security,the state's foreign relations, or an important public interest.8 If the evi-dence is being privileged for security reasons, then the Prime Minister orthe Minister of Defense must sign the certificate of privilege.9 If theevidence is being privileged because of another public interest, then an-other minister-usually the Minister of Internal Security-must signthe certificate of privilege."0

In criminal cases, the prosecution must inform the defense if thestate has issued a certificate of privilege to prevent access to sensitiveevidence. The prosecution also has the attendant obligation to informthe defense of the essence of the privileged evidence, in general terms.11

This gives the defense adequate information to serve as a basis for apetition to disclose the evidence. Following this general disclosure, thedefense may file a petition to the court and request to disclose theevidence. 12

The Evidence Ordinance offers a vague standard to determinewhether a court should approve a petitioner's request to disclose privi-leged evidence: it requires that the court weigh "the need to disclose theevidence for doing justice" against "the interest not to disclose it." 1 3

The ordinance suggests a balancing test that compares the possible harmto the defendant, if the evidence were not disclosed, with the harm tothe public interest, if the evidence were disclosed.

Lastly, the statute grants great discretion to the prosecutor. If adefendant's petition pursuant to sections 44 through 46 is successfuland the court decides the evidence should be disclosed, then the prose-cution may either continue the criminal process and disclose the evi-dence, or protect the secret evidence by withdrawing the accusations.By deciding to continue with the case, the prosecutor knows that confi-dential information will be exposed, and that this exposure may under-mine state security or the public interest. In this manner, she must "paythe price" for conviction of the defendant. In other words, the state-via the prosecutor-whether or not to reveal the secret information.14

8 Evidence Ordinance (New Version), 2 LSI 198, §§ 44-45.

9 Id. at § 44.10 Id. at § 45.

11 CrimA 1152/91 Siksik v. State of Israel [1992] IsrSC 46(5) 8, paragraphs 12-13.12 Id. at paragraph 13.13 Gross, supra note 6, at 773.14 See Eliahu Harmon, Evidence Excluded by State Interest, 3 ISR. L. REv. 387-88 (1968). Of

course, the state always has the option of waiving a claim of privilege in order to secure the

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II. THE LIVNY CASE: THE INTERPRETATION OF THE LAW

In Livny v. Israel, the Israeli Supreme Court explained the intereststhat should be balanced when interpreting the Israeli privileged evidencestatutes. 15 In Livny, several defendants were charged with murder andof being members of a terrorist organization, among other offenses.The Minister of Defense signed a certificate of privilege that preventedthe defense from accessing certain evidence on the grounds that it mightundermine state security. The privileged information included evidencethat revealed the methods of work of the General Security Service("GSS"), prior evidence about the defendants, and the names and detailsof GSS workers. The defendants applied to the Supreme Court to chal-lenge this certificate of privilege. 6

In his opinion for the Supreme Court, Justice Barak first noted theinterest in revealing the truth in order to determine guilt or innocence. 17

He asserted that, in an adversarial system, truth will be revealed only ifthe defense has access to all investigation material. 18 The defendant willonly then be able to prove his innocence, based on the investigationinformation, by presenting his version of the facts or by casting doubton the prosecution's version. Justice Barak suggested that the relativeimportance of investigative material to a given defendant's case shouldbe determined by the defense, not the prosecution. 9 In light of thisfact, he concluded that the only way to ensure a fair trial was to revealall investigation material to the defense. Otherwise, the defense counselwould never be certain that the prosecution had revealed all helpfulevidence.2 °

On the other hand, Justice Barak also acknowledged that publicinterest requires, at times, that the prosecution not disclose the investi-gation material, due to the security interest of the state. He noted that

conviction of a person accused of a serious crime, if it considers the conviction a more important

objective than security.

15 CrimA 838/84 Livny v. State of Israel [1984] IsrSC 38(3) 729 (1984). The SupremeCourt repeated this test in several decisions. See, e.g. CrimA 1924/93 Greanberg v. The State ofIsrael, [1993] IsrSC 47(4) 766, 771.

16 Livny, IsrSC 38(3) 729, at paragraphs 1-2.

17 Id. at paragraph 4.

18 Id.

19 Id.20 Id.

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this interest was rdevant-to all nations, but was especially important toIsrael, which has struggled with security dangers since its founding.2

After reviewing these interests-fair trial versus state security-Jus-tice Barak fashioned a rule: if the evidence is essential to the defense,then justice demands its disclosure, notwithstanding its importance tothe public or the security interests." Justice Barak decided that no se-curity consideration can justify the damage of convicting an innocentperson in a criminal prosecution.2 3 He found that it would be prefera-ble to acquit a defendant whose guilt could not be proven, due to theneed to disclose evidence, than to convict him for his inability to accessexculpatory but privileged evidence.24

However, Justice Barak added that, in some cases, the evidence atissue is not clearly essential, but may still have some weight. It might berelevant to a determination of the reliability of the defendant or thewitnesses. It could help support other evidence or be used for cross-examination. In these cases, the rule as stated in Livny is that thecourt has to consider the relative importance of the evidence, in com-parison to security or other public interests. That is, if the evidencecontributes to the defense but is not essential, the privilege shall with-draw only if the relative importance of the evidence overpowers thedamage to security or public interests.26

These rules and balancing tests seem to .safeguard against judicialerrors. However, in my opinion, an examination of the Israeli legal ex-perience on this subject reveals that in practice they do not. One exam-ple in particular demonstrates that the application of these rules havegreat potential to distort justice: the case of Nidal Abu Saada.

III. THE ABU SAADA CASE: A FAILURE TO OBEY THE LAW

On February 1, 1996, a detainee was beaten to death in a prison inIsrael, after a violent "interrogation" performed by other detainees fromthe Hamas organization.27 The authorities suspected a detainee namedZakzak. Zakzak was investigated by the Israeli authorities regarding hisinvolvement in and knowledge of the matter. The suspect gave three

21 Id. at paragraph 5.22 Id.23 Id. at paragraph 8. 1

24 Id.25 Id. at paragraph 9.26 Id.27 CrimA 4765/98 Abu Saada v. State of Israel [19981 IsrSC 53(1) 832, paragraph 1.

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statements, and in all of them he noted that he had heard the deceasedyelling from a tent near his own, but that he could not see the events inthe tent because it was closed. Although he was unable to identify thekiller, he offered to assist the investigators in finding the murderer. Hisoffer was accepted and he was relocated back to prison to gather infor-mation.2" Six months later, in September 1996, Zakzak gave the policea fourth statement. In this statement, he noted that the tent where thedeceased had been beaten to death had been wide open, and that he hadbeen an eyewitness to the events in the tent. He noted that he had seenNidal Abu Saada, with two others, beating the deceased. Zakzak waswilling to testify in court. He was promised release from custody andtransfer to another country.29

Abu Saada was charged with murder, and Zakzak testified at thetrial? 0 Following, a certificate of privilege was signed by the Minister ofInternal Security, pursuant to the Evidence Ordinance.3 ' This certifi-cate related to thirty-two documents, including Zakzak's three state-ments. The defense counsel applied for disclosure of the privilegedevidence, but the prosecution objected, and pleaded before the court: "Iinvite the court to see the evidence behind closed doors, and when yourHonors will see the material, you will know that there is nothing thereto contribute to the defendant's defense. ' 32 Following this statement,the court examined the evidence without the presence of the defendantor his counsel, and rejected the defense's motion. 33

The court convicted Abu Saada, and sentenced him to life impris-onment.3 4 At the appeal, a prosecutor from a different department han-dled the case, a common practice in Israel. That prosecutor decided,contrary to the trial court's determination, that Zakzak's statement thathe could not see the events in the tent and his offer to be relocated inthe prison in order to assist in finding the identity of the murderers,were essential to the defense. 35 Upon the prosecution's request, the

28 Id.

29 Id.30 Abu Saada, IsrSC 53(1) 832, at paragraph 2.

31 Id. at paragraph 2.32 Id.

33 Id.

34 Id.

35 It is easy to imagine what a defense attorney armed with those statements could have donein a professional cross-examination of the witness.

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privilege was removed by the minister, and all Zakzak's statements weretransferred to the defense and to the Supreme Court.36

The prosecution went further, announcing that the district court'sverdict could not stand, and that the Supreme Court should acquit AbuSaada.37 This was due to the prosecution's inability to summon Zakzakto the witness stand again. 38 The Supreme Court agreed and acquittedthe defendant. In its decision, the Supreme Court held that seriousfaults had marred the proceedings and the conviction, in violation of thedefendant's rights. 39 The court noted that there are three mechanismsof supervision in the Israeli system on this matter: (a) the minister whosigns a certificate of privilege has a duty to consider whether the privi-lege is requested to protect the state security or other public interest; (b)the prosecution has a duty to consider whether the privilege is re-quested, and, more importantly, if the privilege can harm the defense;(c) the court itself has to decide, after checking the evidence, if the privi-lege is justified and if the evidence is requested for the defense.4 °

The Supreme Court held that, in this case, the supervision hadfailed on all three levels.4 1 First, there had been no justification for sign-ing the certificate of privilege after the indictment, because Zakzak hadalready agreed to testify in open court without hiding his identity.42

Second, the prosecution had erred not only in objecting to the requestfor disclosure of the evidence but also by misleading the court and thedefense regarding the content of the material.4 3 Furthermore, the prose-cutor had not just objected to the evidence's disclosure, but had assertedin open court that the privileged evidence would not be useful to thedefense.4 Third, if the trial court had examined the privileged evidence

36 Abu Saada, IsrSC 53(1) 832, at paragraphs 2-3.

37 Id. at paragraph 4. The prosecution requested that the court grant an acquittal based onthe fact that the first prosecutor had not proven the defendant's guilt beyond a reasonable doubt.However, the Supreme Court chose not to acquit based on this standard. The court stated thatreasonable doubt exists even when the prosecution presents strong evidence. In this case, how-ever, because of the hiding of the statement and the consequent lack of cross-examination, thecourt decided that the evidence that the prosecution had brought did not have enough weight

even for a civil burden of proof. Id. at paragraphs 3-4.38 Part of the deal with Zakzak was that after his testimony he would be transferred to

Jordan. Id. at paragraph 1.39 Id. at paragraph 5.40 Id.41 Id. at paragraph 6.42 Id.43 Id.44 Id.

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carefully in the ex parte hearing, then it would have noticed thatZakzak's statements should have been disclosed.45

The Supreme Court noted that the failure of all three mechanismswas worrisome. However, the Court found some comfort in the factthat a prosecutor had ultimately revealed the mistake, assisted in fixingthe problem and requested the acquittal of the defendant.4 6

IV. CAN IT HAPPEN AGAIN?

Abu Saada's failures raise the question of whether the errors in itsproceedings were an isolated occurrence, or whether they will be re-peated in future cases. In my opinion, the errors are doomed to occuragain.47 In an adversarial system like Israel's, the defense attorney has acrucial rule in the process of doing justice. However, as the law nowstands, the defense counsel argues at a privileged evidence hearing wear-ing a virtual blindfold, not knowing the exact content of the evidenceagainst his client. Even if the prosecution describes the essence of theevidence to the defense in general terms, the defense counsel still hasvery little information and is forced to trust the prosecution and thecourt.

The prosecution and the court are obliged to look at the casethrough the eyes of the defense counsel, and to figure out what thedefense counsel could have done with that evidence. In my opinion,this proceeding has serious potential for error. As the Israeli SupremeCourt noted in 1950, in the famous Malka decision: "There is no exam-ination of the wisdom of a talented defense attorney, and it is impossibleto guess how he could use the material in front of him.' 48 This meansthat neither the court nor the prosecution can put themselves in theshoes of the defense counsel and accurately predict what the defensecounsel might do with the material were it available to him.

Even if the defense attorney describes his strategy, it is hard for thecourt to determine the potential usefulness of the evidence. Often, evi-dence is just a starting point for further investigation or for cross-exami-nation by the defense, and sometimes evidence can influence the value

45 Id.

46 Idat paragraph 7.

47 Another question is whether these errors occur in the United States under the rules ofdiscovery and the prosecutor's role in facilitating defense discovery according to Brady v. Mary-

land, 373 U.S. 83 (1963).48 CrimA 35/50 Malka v. The Attorney-General, [1950] IsrSC 4(1) 429.

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of other evidence. Therefore, it is almost impossible to foresee whatmight be produced. This argument relates to all kinds of evidence, doc-uments and witnesses. The court cannot foresee what a witness willtestify about on the stand. Therefore, when dealing with oral evidence,the court has to decide whether to privilege future testimony withoutknowing the content of the evidence.49

Furthermore, Israel's legal history includes additional examples ofwrongdoing in cases involving privileged evidence. For example, in JohnDoe, the prosecution submitted to the court a tape recording of an inter-rogation by the GSS.50 Upon challenge by the defense counsel, the Su-preme Court found that the prosecution's submission of the evidencewas incomplete and misleading in two ways. First, the tape recordingonly included part of the interrogation and was only one piece of theavailable evidence. Second, neither the trial court nor the defense coun-sel had been aware that the submitted tape had been duplicated notfrom the original recording, but from another copy. 51 This informationhad been hidden from the trial .court, and, if the defense attorney hadnot filed a motion to the Supreme Court requesting disclosure of theprivileged evidence, the information would never have been found out,and the trial court, as well as the defense counsel, would have beenmisled.52

In another case, Siksik, the existence of a person who had beenwith the main witness in a drug dealing transaction was hidden from thedefense.53 The prosecution never submitted a certificate of privilege,and there -had been no mention of this person in the investigation mate-rial. Defense counsel accidentally discovered this person's existence dur-ing cross-examination. Only at that point did the prosecution followthe proper procedure and acquire a certificate of privilege. But eventhen, the trial court did not receive all the information it needed to ruleon the question of privilege. 54 These are just a few examples of whatmay, and probably will, go wrong with privileged evidence.

49 Compare CrinA 889/96 Mazariv v. State of Israel, [1997] IsrSC 51(1), paragraph 10.50 CrimA 677/94 John Doe v. Mr. Itzhak Rabin, Prime Minister and Minister of Defense,

[1994] IsrSC 48(2) 169, paragraph 3.51 Id. at paragraph 7.

52 Id. at paragraph 9.

53 CrimA 1152/91 Siksik v. State of Israel, [1992] IsrSC 46(5) 8, paragraph 2.54 Id. at paragraph 17.

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V. WHAT CAN BE DONE?

This section discusses how actors can reduce the future probabilitythat such miscarriages of justice will occur in the Israeli criminal justicesystem. First, we should know that we pay a social and legal price forusing the mechanism of privileged evidence. Using the mechanism ofprivileged evidence adds a non-adversarial process to an adversarial sys-tem. The more we use the mechanism of privileged evidence, the morewe see miscarriages of justice, violations of due process, and the convic-tion of innocent defendants. Awareness is the first step towards avoid-ing these errors.

Second, the courts should incorporate this awareness-that the us-age of privileged information poses risks to due process-into its balanc-ing test for evaluating petitions to disclose privileged investigationmaterials. That consideration should lead to a presumption that evi-dence should not be privileged when the evidence has some meaning orrelevance to the defense. Under such a presumption, the prosecutionwould reveal all the evidence unless it could prove that there would beno way the defense could use the evidence for its benefit. Currently, theLivny rule requires that if the evidence is essential to the defense, justicedemands its disclosure, trumping security interests and the public inter-est. But if the evidence has a meaning or relevance to the case that isnot essential, the court has to consider the relative importance of theevidence to the defense, in comparison to security or other public inter-ests. As the rule now stands, if the first interest is more important thenthe second interest, the evidence must be disclosed. In my opinion, thecourt should also consider the additional risk of a miscarriage of justicewhenever the mechanism of privileged evidence.is used and thereforeplace the burden of proof on the prosecution.

However, the cases discussed in sections II and III above suggestthat no balancing test could have resolved the problems that inevitablyarose. This is why the solution must be procedural. If the root of theproblem is related to the officials who function according to the law, thesolution should relate to these officials and functions.

Justice Kedmy made the suggestion in Abu Saada that the stateshould be represented in a hearing about privileging evidence by a pros-ecutor who is a "foreigner" to the case.55 In Abu Saada, the inspection

55 This is already the case when the stated reason for privileging the evidence is the protec-tion of state security. Under section 44 of the Evidence Ordinance, hearings in these cases arebefore the Supreme Court, so, usually, the case is handled by another prosecutor from another

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of the case on appeal, by a prosecutor who was foreign to the mainprocedure, enabled a correction.56 To that suggestion, one might addthe additional reform that the hearing on privileging evidence should bein front of a judge who is not hearing the actual case, especially in thecontext of Israel's non-jury legal system. 57

Another suggestion is that the court should appoint a public de-fender, not to be counsel to the defendant, but as an amicus curiae, or"standby counsel," in addition to the defendant's attorney. Then, if theprosecution wants to be heard without the presence of the defendantand his attorney, the appointed amicus curiae will be able to stay in thecourtroom, hear the arguments, read the evidence, and argue that thepetitioner's request to privilege evidence is not justifiable. Of course,the appointed attorney will be required to have security clearance, andwill be bound to secrecy. This solution will make the ex parte hearingmore adversarial and balanced.

Another possible suggestion is to reveal to the defense counselsome of the privileged evidence, but to forbid counsel from revealingany information to the defendant. The advantage of this suggestionover the previous one is that the defense counsel is in a better position toargue against privileging the evidence than an amicus curiae or astandby counsel who has no prior relationship to the client. However,there are two disadvantages to this suggestion: first, it puts a barrierbetween the defense counsel and her client when the attorney is boundto secrecy from her client; second, in order for secret information to berevealed to the attorney, she must have clearance from security authori-ties, and that requirement limits the right of the client to choose hisattorney as he wishes.

In my opinion, some combination of these last two suggestionswould be ideal. If the attorney has security clearance and she is willingto keep the information secret from the client, assuming the client con-sents to that, some of the privileged evidence can be shown to the de-fense attorney. If the attorney has no security clearance or is not willingto keep a secret, then the court should appoint public defense, or anydefender, who will act as a substitute for the defense attorney, and will

department. However, under section 45, the case is heard by the same court, and the state isusually represented by the same prosecutor, or even more disturbingly, by a police officer. SeeAbu Saada, IsrSC 53(1) 832, at paragraph 2.

56 Id.57 See Adi Ratig, The Sting: Privileged Evidence, Requirement of Reasoning and Free Speech, 14

MISHPATIM 108 (1984).

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try to prevent any unjustified privileging of information from the de-fense and from the court.

EPILOGUE

We live in era of terror. For Israel, this is not a new development.We have been facing terror for many years, and unfortunately, thisthreat will probably be with us for many years to come. However, wemust not acquiesce to miscarriages of justice in our system. If, whilefighting terror, we change our laws to allow more miscarriages of justiceto occur, then it means that, in some way, the terrorists have won. Atrue democracy should fight against terror without sacrificing humanrights while doing it. As Justice Barak, president of the Israeli SupremeCourt, wrote in the decision that outlawed torture:

This is the destiny of a democracy-it does not see all means as ac-ceptable .... A democracy must sometimes fight with one hand tiedbehind its back. Even so, a democracy has the upper hand. The ruleof law and the liberty of an individual constitute important compo-nents in its understanding of security. At the end of the day, theystrengthen its spirit and this strength allows it to overcome itsdifficulties.

58

58 HCJ 5100/94 Public Committee against Torture v. State of Israel, [1999] IsrSC 53(1)817, paragraph 39.