Undue Process

Printer-friendly versionPDF version
26 May 2011
Haaretz
Ilana Hammerman

The little girl threw up. Just now, when they had finally arrived, and her brother smiled at her from the other side of the transparent partition; the smile of a 20-year-old who still looks like a child, but is eager to be a man. Just at this moment, she threw up. Threw up and cried. And soiled the pretty clothes she was wearing for the trip, and the floor as well. Her mother - who had already sat down in front of the partition, gazing worriedly into the face of her son on the other side to see if his cheeks were still as round and dark as before, or if they had become shrunken and pale, her ear pressed to the telephone receiver to hear the sound of his voice and try to pick up any hint of his state of mind - her mother pushed her away.

And then a staff person came over, brought her a rag and asked her to clean up the mess. No, she’s not going to clean anything, she came here to see her son. Let his father clean it up, she said, almost shouting at her husband, who stood there confused and embarrassed. He’s not used to hearing his wife shout at him or to taking care of vomiting children, and certainly not to mopping floors. In their family, that’s the woman’s job, for all the woman’s honor, whatever that may be, is to be found at home. But at this moment, all the woman’s attention, all her emotions, all her physical sensations, after many days and nights of tense anticipation, are focused on the son behind the partition, who cannot be touched, whom she can only speak to on this telephone. He has one telephone receiver on his side and they have two, one for the father and one for the mother. But only one of them at a time can listen to him, not both at once. It is not a conference call.

But anyway, there’s not that much to say in such circumstances: A hug, a kiss - that’s what was really needed here, in this big room with dozens of people sitting in long rows on either side of the see-through partition, speaking into telephones. So how are you? Fine. How are things? Okay. Are you eating? Yes. The food is okay? Yes, well, not so much. Did you bring the clothes I asked for? Yes, I brought them, but they won’t let them in. Why? I brought short pants but they said they have it written down that you requested long pants. I brought sandals. But sandals aren’t allowed. I brought a green shirt, but green is forbidden, and so is light blue and dark blue. Give them a new list. But I need sandals, my feet are too hot in the shoes. What can I do? Sandals are forbidden.

The floor has been cleaned meanwhile; the father took care of it. Now he, too, asks how things are and what’s new and what’s going on. The little girl hasn’t said a word. She lets out the last of her sobs and waits for this whole long ordeal to be over with so they can go home. Just yesterday she was so pleased they were letting her come visit her brother! What disappointment, what shame! At home, she’ll take a shower, wash her hair, change clothes and go back to being a playful and coquettish 9-year-old who works her fickle charms on everyone around her: One minute she’s a sweet little thing and the next a seductive adolescent. But right now she’s just in the way, a bother, a pest.

They left the house in a taxi at four in the morning. Then they rode for over an hour on the bus. Then they waited in a long line outside an iron gate. The rising sun began to dissipate the morning chill of the Jerusalem hills. After two, three, four hours, the sun was blazing up in the vast sky above the mountain ridges and the detention camp situated there; a large square compound surrounded by a wall and towers. But their name hadn’t been called yet. A group of people who had arrived after them had already been called to pass through the gate. And this gate was only the first one on the way to the see-through partition, and they were still waiting there. Waiting and waiting.

But they got here so early. Something must be wrong. The people in charge apparently agreed as they consented to check the papers they brought with them: May 27 it says there. Yes, today is May 27. But their visit was supposed to be on the 24th, they’re not scheduled for a visit today. The mother, who for three months now has quietly welled up with tears whenever anyone speaks to her about her imprisoned son; getting angry when told that no self-respecting young man from her people has not spent some time behind bars these days, and that perhaps her son will emerge from the experience something of a hero. She replies that she does not want him to be a hero. Maybe if he were the fighting kind, if he’d fought the occupier, but that’s not him, that’s not where his head’s at, she just wants him at home, next to her! In these last few months, this strong mother, who has lived through her share of sorrows, has come to feel something is going hopelessly wrong.

At any rate, she bursts into hysterical weeping now. No, she is not going to budge from here until she sees her boy. Okay, okay, say the paper-checkers, okay, you can go in. On the other side of the gate, someone presses a button and the narrow turnstile turns and the family squeezes through and boards the bus that will take them to the next gate.

Now they have passed through another turnstile and are standing in a large courtyard, where they see that many of the people who entered before them are still waiting. Some are sitting on the few plastic chairs scattered around. Most sit on the concrete floor. Under the open sky, in the heat of the day. No trace of the morning chill remains. In the yard there are also toilets for their convenience. The last to use them will be given mops and rags and cleaning supplies and instructed to clean them. They will be among this last group. Meanwhile, whenever a list of names is read out, the people whose names are called stand in line and, one by one, pass through another gate and another turnstile and disappear from view. But, again, their name is not called. The father approaches someone to inquire. The mother follows him.

Their visit was scheduled for the 24th, they are told again. Their son waited for them and no one came. He waited for nothing. Why didn’t you come? But the paper they have says the date is the 27th. Yes, that’s what it says, but it’s a mistake. It’s too bad, but nothing can be done about it. The father decides they’re going home. The mother, who doesn’t usually make decisions on such things, decides they are not going home. If she doesn’t get to see her son, the only way she’s leaving here is as a dead woman.

It’s an awkward situation and the prison service personnel are at a loss as to what to do. They summon someone higher up and then someone else higher up and finally the commander, too. Turns out he does not have a heart of stone beneath his uniform and protective vest. He promises the outraged and despairing woman that he will take care of it somehow. And he keeps his promise: He goes to the trouble to check and finds there is one other prisoner still waiting for his visitors to arrive. They were invited on the 27th and haven’t shown up yet. Maybe their papers had the wrong date on them. So now the family can enter in their stead.

The little girl throws up in front of the partition and the father and mother sit down with the telephone receivers in their hands and try to smile. They are allotted exactly 45 minutes. Then the telephones go silent at the touch of a hidden button. And they get up with all the other visitors and exit through all the gates and turnstiles and fences and board the bus. And make the long trip back the way they came: roundabout, steep and narrow roads, because the main highways are off-limits to them. At five in the afternoon they arrive home. 13 hours for a 45-minute visit. They won’t take the little girl with them again, they say.

“In this case, detention was ordered until the conclusion of proceedings,” says the record of the Judea military court. The proceedings have dragged out, and meanwhile Sa’ed has been in detention for more than four months. He was arrested at his home on February 17, 2009 at two in the morning. It was a cold and rainy winter night. One of the rainiest nights in this very dry winter. Sa’ed and the other young men who were roused from their beds in the middle of the night had to stand there in the downpour. They waited in the street for two hours, blindfolded and handcuffed from behind to a fence. Until all seven of the people whose names appeared on the list had been rounded up.

Then the seven and those who had come to collect them got into military vehicles and drove away. For two days, no one could tell Sa’ed’s parents where their son was. On the third day, they were informed by the Red Cross he was being held at the police station in Gush Etzion. On the eighth day they were informed that he was being held at Mahane Ofer and were also given a copy of an indictment, written in Hebrew. They do not read Hebrew.

It listed these main points: “Count one: … the aforementioned accused, in the region, from 2006 or thereabouts until the day of his arrest was a member or acted as a member of a prohibited association … i.e. … the Popular Front organization (hence the PFLP) … as part of his activity, the accused perpetrated what is noted in the following count … Count two: The aforementioned accused, in the region, during the time cited in the first count, was present at a gathering of the prohibited association, i.e.: on the aforementioned date, in that region, the accused took part in, as part of his membership in the PFLP, in processes for the establishment of the organization … Count three: The aforementioned accused, in the region, during the time cited in the first count of the indictment, carried out some kind of job or performed some kind of service for the prohibited association, i.e.: on the aforementioned date, in the region, as part of his membership in the PFLP, the accused, together with other members of the cell, wrote the organization’s slogans.”

In early February, about two weeks before Sa’ed’s arrest, this writer accompanied him and his parents and his sick sister (not the healthy child who threw up at the prison, but an older, high-school age sister) to Schneider Children’s Medical Center. The doctor there told them Sa’ed’s sister, Saja, would need a kidney and partial liver transplant to save her life. The three other family members there - the father, mother and Sa’ed - would all have to be examined to see if they might be suitable donors. They were hopeful that Sa’ed would prove to be a good match, because he is young. To pay for the transplant, they would have to raise more than NIS 1 million, but there was still a long testing process ahead, so they could talk about that later. After taking in this difficult but not unexpected news, I suggested we make a quick trip to the Tel Aviv beach, to lift everyone’s spirits. Privately, I worried a little that they might be considered illegal there, since the permit they had was valid only for the trip to the hospital. I didn’t check into it further, though, as I did not know how to do so and I also had no desire to do so, because these four stunned people urgently needed just a little relaxation at that moment. And there were plenty of lovely beaches to choose from in Tel Aviv, with fairly clean sand and a nice boardwalk and cafes. And what a beautiful day it was. It would do everyone a little good to just take in the sun and the sea and the sky for a moment or two.

In the photo, Sa’ed and his sister are standing on the Tel Aviv beach: Two slim, attractive young people, both in jeans - his black, hers blue - he in a hooded black sweatshirt emblazoned with a bird in flight over the word REBOX, and she in a long-sleeved, close-fitting purple top decorated with little white flowers. He is bareheaded, his curly hair cut short, and she wears the traditional headscarf that hides her long hair, which otherwise would fall to her shoulders, soft and fragrant and pleasant to the touch: I know because I’ve stroked this hair before.

Both smile gently, but her eyes are sad, while his - looking for the first time in his life at the sea that is less than an hour’s drive from his home - his eyes are smiling. The sea stretches out behind them as its soft waves topped with a silvery froth roll toward them, toward us.

About a month after Sa’ed’s arrest, on March 19, military judge Capt. Lior Kahane decided there was no justification for keeping Sa’ed in custody until the conclusion of the proceedings. He ruled that the testimony of the key witness who incriminated him, known as Prosecution Witness No. 2, had “no anchor in time or place in regard to the respondent’s membership in the Popular Front, and essentially the respondent finds himself in the position of having to prove a negative, ‘Go prove you don’t have a sister.’ The witness does not tie the respondent to any specific activity, does not explain when he joined the PFLP, how, or in which processions he took part,” and the other two prosecution witnesses “do not mention the respondent as someone who was involved in the activity in which they took part.”

Therefore, Capt. Kahane concluded, “In light of the principles of Israeli law, such an incrimination cannot exist in tandem with principles of the presumption of innocence. A person has a right to know of what he is being accused, and it is the duty of the investigating authorities to do everything in their power to uncover the truth. In the circumstances of the investigation made in this case, the accused did all he could do, which is to say that he does not have a sister and that the accuser is a bastard … In addition, there is the humanitarian circumstance regarding the serious medical condition of a family member, which requires the respondent’s presence at the Rabin Medical Center for lifesaving treatment for his sister … Therefore, I hereby instruct that the respondent be remanded. However, he may be released from his remand if the following conditions pertain … a monetary deposit of ten thousand shekels … the signatures of two third-party guarantees in the amount of ten thousand shekels, one by his father … and one by family friend Dr. Ilana Hammerman … the respondent is prohibited from leaving his village.”

When we left the courtroom with the payment voucher, the father wasn’t certain whether it was good news or bad news, for the judge had said something that, being unfamiliar with Hebrew idioms, he did not quite understand: Sa’ed has to prove he doesn’t have a sister? No, I said, it’s a joke, this judge is a little cheerful for some reason, and it’s excellent news: Sa’ed will be released on bail and will await his trial at home. We’ll just deposit the money and that’ll do it. Here’s the voucher: “Ten thousand shekels,” it says. And I have that ten thousand in the bank.

A young military prosecutor, Capt. Genia Walinsky, appealed the decision to let Sa’ed be released on bail. This is what she said: “Even if other people do not say the name of the defendant, they do not say that he was not in the cell. Prosecution witness no. 2 says the cell dealt with writing slogans and with processions. Even if there was no activity mentioned in the witness’s statement, there is a broad ruling that says even an undefined membership justifies remand until the conclusion of proceedings … I hereby request that the court’s decision be overturned.”

The judge of the Military Court of Appeals, Lt. Col. Netanel Benishu, acceded to her request and overturned the decision. He added that testing to determine whether Sa’ed was a potential organ donor for his ailing sister could be done while he was in detention. “Therefore,” he said in conclusion, “at this stage I believe the public interest in avoiding the risk that could derive from the appellant’s release exceeds the harm his detention could cause him and those around him. In these circumstances, I accept the prosecution’s appeal and instruct that the respondent be remanded until the conclusion of proceedings.”

And here I would like to switch for a moment to the story of another person, whom I don’t know, who was sentenced in the Supreme Court a few days before. This man did not sit in prison until the conclusion of proceedings. His name is Yanai Lalza and he was convicted of a number of offenses that he committed during his service in the city of Hebron as a soldier in the Border Police. All of the offenses were committed in the course of “a determined campaign of abuse and harassment of city residents” carried out in the streets by the accused and three of his comrades.

During this rampage, the four abducted two passersby, forced them into their military Jeep, took them somewhere, kicked them and beat them with a club and rifle butts, and robbed them. Then they took a third person into the Jeep and later threw him out of the moving vehicle. The man was injured in his fall and ran away limping. Finally, they took a 17-year-old boy into their vehicle. The boy, Amran Abu Hamdiya, was beaten inside the Jeep and then ordered to stand up and jump out. He was made to stand in the rear of the Jeep but he refused to jump, and clung to the roof of the vehicle. His attackers pried his hands loose and he fell from the Jeep, which was traveling at a speed of 70-80 kilometers per hour, and was killed. Or, as the Jerusalem District Court put it: “The deceased had the misfortune to cross paths with the defendant and his companions on their spree of killing and violence of 30.12.02, and so met his death.”

Met his death. What rotten luck. The district court sentenced Lalza to six and a half years in prison. Among the explanations offered for the lenient sentence were the defendant’s shaky mental state and difficult family circumstances, including the health of his sister, who had been injured in a car accident and was undergoing lengthy rehabilitation. The state appealed the leniency of the sentence, and the High Court, sitting as the Court of Criminal Appeals, accepted the appeal.

The decision handed down on March 31, 2009 stated that the “failure” of the respondent and his friends “reflects in a nutshell the essence of the antithesis to the values of the enlightened human community and the values of the Jewish people throughout the generations … Such occurrences require an iron fist when it comes to punishment so as to completely uproot them from our midst, lest any trace of them remain. There is no absolution for someone who exploits his power and his weapon as a soldier in the IDF against an innocent and helpless civilian due to his ethnicity, to the point of taking his life. Whatever circumstances for leniency there may be must be considered, but their relative weight must be diminished in proportion to the horror of the deed. And in this case the horror and the savagery of the deeds outweigh all else.”

The iron fist of punishment added another two years to the prison sentence - a total of eight and a half years - saying that the sentence was meant to express “the extreme nature of the criminal acts we witnessed here … and to send a tough and condemnatory message that acts of abuse of this kind must never be seen or heard of in these parts.” Reading these documents shortly after Sa’ed was again sent to detention until the conclusion of proceedings, I took notice of the defense’s request in Lalza’s trial to also take into consideration for leniency’s sake “the lengthy house arrest of the respondent during the proceedings …”

And with that I return to the gloomy story of Sa’ed, who is being held until the conclusion of proceedings that could well take weeks or even months - in prison, and not in his home, and to the unhappy ending it might have. The military prosecutor who appealed the decision to release Sa’ed to house arrest argued that “in the event that he is convicted of the crimes attributed to him, he would be sentenced to 10 years in prison.” The judge looked at her tiredly and asked: “10 years?” And the word “ten” - which I heard with my own ears and which even caused me to blurt out an embarrassing shout in the courtroom in which the only other spectators were Sa’ed’s father and mother - the word “ten” was erased from the protocol and replaced by a phrase frightening in its arbitrariness: “He shall be sentenced to years in prison.” Years in prison for vague membership and a vague meeting and painting vague slogans, which, as military judge Capt. Lior Kahane pointed out, can hardly be pinpointed in any way, shape or form.

Sa’ed, whom, during the most recent hearing in his case, the key prosecution witness said he hadn’t known at all before they met in jail, that he’d only known his name through rumors and only gave it under pressure of questioning in the hope that it would help get him released; Sa’ed, who fell victim to a vague incrimination by another prisoner under the bleak circumstances that spawn dozens of similar instances every day. Because of all of this, young Sa’ed could well be sentenced to years in prison. For if one is to judge by cases similar to his, it is quite possible that neither the weakness of the evidence against him nor the state of his sister’s health will make any difference, and the military court will decide that he, too, ought to be punished with an iron fist, lest illegal slogans and processions, real or imagined, be seen and heard in these parts.

And if that happens, then his parents will likely end up taking his little sister to see him through the partition, since she will meanwhile get bigger and promise to behave nicely and not to throw up, and she’ll also cajole them and make cute faces as only little girls can do, until they cannot be resisted.