On July 20, 2021, the Association for Civil Rights in Israel petitioned the High Court of Justice to cancel government decisions that expanded the functions of the Shin Bet from six to ten, contrary to the provisions of the law. The petition cited data received by the Association in response to a Freedom of Information request, according to which, beginning in 2004, the government authorized the Shin Bet to perform four additional functions beyond the six functions listed in the Shin Bet Law, through government decisions with the approval of the Subcommittee on Intelligence and Secret Services, and specifically not via amending the Shin Bet law. The expansion of powers was done secretly, without publicity, and away from the public eye. The petition argued that expanding the authority of the Shin Bet in secret threatens democracy and human rights and violates the law.
In expanding the authority of the Shin Bet, the government relied on a basket clause in the Shin Bet Law (section 7(b)(6)), which allows it to authorize the Shin Bet to perform an additional function. The last task assigned to the Shin Bet through this basket item was to trace contacts between coronavirus patients and citizens who came into contact with them. This decision was discussed in a ruling in a previous petition we submitted, and in the ruling from April 2020, it was ruled that the clause allows the government to authorize the Shin Bet to play an additional role only in circumstances where there is an immediate danger and for a limited time. The High Court then ordered that if the government wants to continue authorizing the Shin Bet for contact tracing, it must resort to a full legislative process, and cannot do so on the basis of a government decision.
The petitioners argued that section 7(b)(6) is intended to give the government some operational flexibility to use the Shin Bet in dealing with unexpected threats and for a limited time, but it cannot constitute a mechanism for permanently expanding the functions of the Shin Bet. The petitioners argued that permanent expansion of Shin Bet functions requires explicit authorization by law, especially in light of the fact that it involves serious violations of human rights. Each new position enables the exercise of powers in an area that previously could not be exercised (powers such as wiretapping, online surveillance, investigations, etc.). They also argued that the permanent expansion of the functions of the Shin Bet is a preliminary arrangement that requires legislation, and that permanently expanding the functions of the Shin Bet through a government decision violates the principle of separation of powers. There is also a serious flaw in the mechanism that allows expanding the powers of the Shin Bet permanently, in secrecy, without the public knowing about it, and even excluding most Knesset members, since transparency regarding the limits and powers of the Shin Bet is essential. Finally, they argued that even if the government mistakenly believed that it had the authority to permanently expand the functions of the Shin Bet through the clause, the discretion it exercised in choosing an administrative certification track was extremely unreasonable, and it should have acted to amend the law.
On October 19, 2022, a hearing was held on the petition, following which the High Court of Justice issued a conditional order instructing the state to explain why the use of section 7(b)(6) will not be restricted, so that it can be invoked only in urgent circumstances.
In September 2023, the government and the Shin Bet announced that they agreed to make the order permanent, and in February 2024, the Knesset also announced this. Accordingly, on July 18, 2024, a ruling was passed that makes the conditional order absolute, and significantly reduces the government's ability to authorize the Shin Bet for additional tasks not included in the Shin Bet Law secretly and through a speedy process. The ruling states that the best way to impose additional functions on the Shin Bet is through legislative changes; that the government may assign additional functions to the Shin Bet that are not enumerated in the law only in extreme cases, where this is required due to urgency or secrecy; and that accreditation be reviewed periodically.
HCJ 5048/21 Association for Civil Rights in Israel v. Government
Attorney: Gil Gan-Mor