Yigal Amir and Jonathan Pollard

Right now there is an ugly situation building up in Israel, regarding the murderer of Yitzhak Rabin. And let there be no doubt that I regard Yigal Amir as a murderer. I do not, however, think that Amir's crime is especially heinous because Rabin was the Prime Minister. A friend of mine argues that, in killing Rabin, Yigal Amir was attacking Israel itself, and to that I say, phooey.

Amir wants to marry. He wants to have conjugal visits with his wife. Those elements in Israeli society which want to make his punishment as dire as possible short of executing him (which would have been his fate if they could have arranged it), don't want him to have the possibility of having an heir. His brother, currently in the army, has been repeatedly interrogated as to his politics and is under constant surveillance, without any reason whatsoever. The vendetta by the Left is unrelenting.

Pollard, an American citizen who sold American secrets to a foreign power, was also sentenced to life in prison. I happen to think that the sentence might be excessive, but not undeserved. He's not an Israeli, and so he did betray his country. But the US government has allowed him to marry and he does meet with his wife, because the Constitution does not allow "cruel and inhuman punishment". If memory serves, at the time of JFK's assassination, if Lee Harvey Oswald had not been shot, he would not have been in danger of execution as the Supreme Court at that time did not allow capital punishment. (I could be wrong about this).

Israel is a country without a written constitution (although it has a quasi-constitution in the "Basic Law"). Its laws are a mixture of Ottoman, British, and Jewish. There is no trial by jury. There is no writ of Habeas Corpus. Laws can be, and are, passed ex post facto. Bail is often denied in lesser offences than murder (in the US, bail must be granted in all such cases, but of course the amount can be so high as to assure the defendant remains in jail until the trial); it is highly arbitrary. There is no automatic presumption of innocence. In the European manner, the defendant must prove his innocence.

I'm not sure Amir is being entirely ingenuous about his wanting to marry and sire children. He may indeed be testing the system to see just how far he can go. But in this case, as the article shows, he is entitled some room to move.

If American Jews support moves to get Pollard released, in spite of his crime as an American against their country, then Israelis ought to support Amir's petition, in my (not very) humble opinion.

Preserving the rights of the most contemptible

By Moshe Gorali (Haaretz)

The court record suggests the justices of the Supreme Court might disagree with the judge who this week denied conjugal visits to assassin Yigal Amir.

Just as Israeli democracy had difficulty dealing with the assassination of prime minister Yitzhak Rabin by Yigal Amir, so too it is finding it difficult to deal with the challenge now being presented by Amir himself.

Three years ago, the Knesset passed a special law that was designed to prevent him from ever being released from prison.

The law was not presented for constitutional review, which it is doubtful it would have withstood as it was designated for a specific person; because it creates cruel and unusual punishment; and because the Knesset's job is to set norms for the future and not punishments after the fact.

Judge David Bar-Ophir ruled at the beginning of the week that Amir was forbidden from having conjugal visits with his fiancee, which aroused no little criticism among legal scholars, who doubted the ruling would pass the test of the Supreme Court.

"It's a primitive decision," says a retired senior judge. Prof. Daphne Barak-Erez said after the ruling that "the real test of a democratic country that is strict about human rights, is in the preservation of the rights of the most contemptible, the most abominable and the most dangerous."

Regarding the ruling itself, Barak-Erez says: "The judge's decision to define conjugal visits as a privilege is problematic, and affects the outcome."

It is quite probable, in fact, that the Supreme Court, should the issue be brought up before it, will promote conjugal visits from the low status of "a privilege" to the status of "a basic right."

In 1987, when the Supreme Court was dealing with the right of prisoners to conjugal visits, Justice Menachem Alon wrote in a decision:

"The right to sexual relations and to conjugal visits with a partner is a basic, natural and humane right for any person, and the punishment of denial of freedom does not automatically include the denial of this basic right."

Like every right, this right too can be restricted. But whereas a privilege can be given and denied perfunctorily, the restriction of a basic right requires very weighty reasons.

Judge Bar-Ophir adopted the view of the Israel Prisons Service (IPS) and the Shin Bet security service, which claimed in the state's reply to Amir's request that "the rule is that a security prisoner shall not be given the possibility of receiving conjugal visits, unless the General Security Service [Shin Bet] has expressly stated that it has no objection to them. In the above case, the security factors ... have positively expressed their opinion against allowing conjugal visits, for reasons of state security."

That is the position of the Shin Bet, which is based on classified material that was submitted to the judge, as well as on the following reasons: Amir did not express regret for his crimes; there is a fear that he will not hesitate to use his partner for the purpose of undermining public security and order; as well as the fact that he is "an object of admiration and a model for emulation for others," as the attorneys wrote. "For this reason as well, there is room to insist on preventing his unsupervised contact with the outside."

The state, responding to the appeal, noted there are 3,300 security prisoners in Israel, and only a few have been allowed conjugal visits. One of them is Ami Popper, who murdered seven Arabs.

"It's not clear why there should be different procedures for security prisoners," says Barak-Erez. "The classification, for the purpose of denying rights, must be the degree of danger presented by the prisoner, and not his categorization as a security prisoner or a criminal. I also find it surprising at the massive reliance on classified information, which constitutes the center of gravity of the ruling."

The danger presented by Amir, which can be the basis for denying his right to conjugal visits, is supposed to be real, not theoretical, and not a matter of hindsight. It should be backed by evidence, and the near certainty of its being realized must be proven. For example, we must be convinced that Amir will exploit the conjugal visits in order to transfer messages of incitement via his fiancee, or perhaps instructions to his followers to murder Prime Minister Ariel Sharon because of Sharon's insistence on the disengagement plan.

In view of what is known about the man's character and his past, the Shin Bet is apparently not taking any chances, and is presenting such a theory, or a similar one. It succeeded in convincing Judge Bar-Ophir. The question is whether the Supreme Court will also "buy" the theory about the real danger presented by Amir.

The Supreme Court has a rich tradition of improving the lives of prisoners, both in word and in deed. "Prison walls do not separate the prisoner from human dignity," said Justice Aharon Barak in 1980, a statement that has been often cited since then.

Barak said that in the famous ruling in which the Supreme Court (in an particularly strong panel: Moshe Landau, Haim Cohn and Barak), forbade the IPS to carry out an enema on prisoners to reveal drugs hidden inside their bodies. The Supreme Court rejected the enema on the basis of damage to human dignity, and preferred this value even at the expense of learning the truth, and perhaps even if it meant letting a criminal go free.

This logic guided Barak, about 20 years later, in a ruling that forbade the Shin Bet from using torture in dealing with Palestinian prisoners; at that time Barak enriched Israeli legal decisions with another statement: "Democracy often fights with one hand tied behind its back."

Right to vote

In 1959, an appeal by prisoners to participate in the Knesset elections was rejected, because of the expense involved in order to make that possible. In 1981 there was a sign of change, when the Supreme Court ruled that "this is one of the basic rights of the citizen ... a right that was not denied by law to a person serving a prison sentence."

And in fact, three years later, during the 1984 elections, the judges forced the Knesset to amend the Knesset Elections Law to enable prisoners and detainees to participate in the elections.

In another case, in 1974, the court rejected the decision of the prison director not to allow prisoner Rami Livneh to bring the writings of Marx, Engels, Lenin and Mao into the prison, for fear that bringing in the books would arouse political arguments among the prisoners. Justice Haim Cohn wrote in the decision at the time:

"We praise the director of the prison for always having before him the maintenance of quiet between the prison walls, but we haven't heard that in the name of `maintaining quiet' he can prevent arguments among the prisoners, including political arguments. As long as discipline and order are maintained in the prison, the prisoners are allowed to argue among themselves about any subject they choose; and if discipline and order are disturbed, those who cause the disturbance will be held to account for their behavior, but they will not be held to account for the subject of their argument."

The unique status of security prisoners is discussed in a ruling from 1996 that dealt with the appeal of terrorist Samir Kuntar to expand his right to telephone calls.

Justice Yitzhak Zamir wrote at the time that "the main interests that must be considered in determining an arrangement regarding the communication of security prisoners with the outside world, alongside the right of the prisoner, are order and security, not only in the prison itself, but outside the prison as well. That means that the security of the state is an interest that must be considered in this matter. Because a person is confined in jail not only as a punishment for a crime, but in order to protect society from him."

In 1996, the Supreme Court ruled that freedom of expression is a constitutional right even for prisoners. At the time, prisoner Avi Golan wanted to write a column for a local Netanya newspaper, and the IPS prohibited it. District Judge Arye Even-Ari adopted the view of the IPS, but the Supreme Court overturned the ruling by a majority of two, Eliahu Mazza and Dalia Dorner, versus Mishael Cheshin.

The debate among the justices also touched indirectly on the issue of conjugal visits. Mazza and Dorner ruled that freedom of expression is part of human dignity, and therefore it is a right even for prisoners, and Cheshin differed with them. In his opinion, freedom of expression is not part of human dignity. He feels that other rights derive from human dignity: the right to sleep in a bed, for example, and the right to conjugal visits.

If the clear stance of Menachem Alon in 1987 is joined to the remark by Justice Cheshin, there is no doubt that Judge Bar-Ophir erred in his classification of conjugal visits - they are a basic right, rather than a privilege.