Suspicion can now land you in jail

Israel has opened a new front in its self-styled war on terror: taxis.

A sullen looking cab driver, Ofer Schwartzbaum, was charged last month with "assistance to killing" for driving a Palestinian suicide bomber on Dec. 25 to a site near Tel Aviv where he detonated an explosion. Four Israelis and the bomber were killed.

"I did not know he was a terrorist," Mr. Schwartzbaum said at his indictment at Tel Aviv Magistrates Court, adding that he never would have taken him if he had known.

Schwartzbaum is the first Israeli Jewish driver ever to face such charges. Gideon Ezra, deputy public security minister, says the indictment has already borne fruit, causing taxi drivers to "think twice" about whom they pick up. In particular, he says, the drivers must know they have to check whether Palestinians they drive have permits to be inside Israel, which the bomber did not possess. "It is awful if the driver has even the slightest of slight suspicions and takes the terrorist," says Mr. Ezra, former deputy chief of the Shin Bet internal security agency.

In recent years, four Arab cab drivers have been convicted of an even graver charge, "assistance to murder," and given prison sentences ranging from 10 to 15 years.

But it is this case, with its implications for the Jewish majority, and the greater attention it has generated, that has put an intense spotlight on gnawing legal and moral questions facing not only drivers, but Israeli society as a whole.

The issues include: Does the government have the right to mobilize civilian sectors in combating terrorism? What is the trade-off between civil liberties and expanded police powers? Can someone be convicted as an accomplice simply because he suspected or should have suspected that someone

else would carry out a crime?

The indictment of Schwartzbaum is part of a change in norms in Israeli society since the outbreak of the intifada in 2000 and the proliferation of terrorist attacks inside Israel's borders, analysts say. "With [Palestinian] bombs going off, the courts want to join the war, so they make things easier for the prosecution [of drivers]," says Moshe Gorali, who covers judicial affairs for Ha'aretz newspaper.

He cited the case of one driver, Khaled Ashour, convicted in July 2002 of "assistance to murder" for taking two Palestinians without permits to a Tel Aviv site that they bombed. In sentencing Mr. Ashour to 15 years, the judge wrote, "the main factor that must guide the court is to deter" drivers in the future.

In other heavy sentences, the judges stressed that drivers should have been suspicious of their passengers, a definition of criminality far broader than actual knowledge that the passenger was en route to a bombing. One example was a bomber who wore a large overcoat on a warm day.

The placing of a new onus of responsibility - including document checks normally associated with police - upon the drivers has backers and also sharp critics. "If the idea is to raise the standards of responsibility in Israeli society, than it is justified," says David Heyd, a Hebrew University philosopher. "The police force is too small, and without massive cooperation it is possible there would be even more terrorist attacks, so that such an approach saves lives."

But, Professor Heyd adds, "there is a danger this could become a slippery slope. In a liberal society, you always have to be suspicious of giving additional powers to the government and police."

Legal analyst Moshe Negbi believes the line of violating individual rights in the name of security has already been crossed. The tough punishments of drivers, he says, "reflect a hysteria and panic on the one hand and the impotence of the authorities to deal with the terrorist problem on the other hand."

"Erosion of civil rights is typical of a time of emergency and you can see this phenomenon in the US with aspects of the Patriot Act, during the McCarthy era, and the deeming of Japanese Americans to be fifth columnists during World War II," Mr. Negbi adds.

Mr. Gorali, the Ha'aretz correspondent, raises another question. He wonders why the Israeli Arab drivers faced tougher charges than Schwartzbaum. "As it appears now, there is a question about inequality," he says.

In the view of Moshe Halbertal, also a Hebrew University philosopher, a driver who transports a terrorist is an active part of the causal chain leading to an attack, but his responsibility must be seen as relative to his role. He does not have the same responsibility as a policeman who drives a terrorist, he says.

"Checking IDs and handbags is abnormal for a driver, but we live in an abnormal situation," he adds. "The problem here is that there are limits to deterrence. The norms have to be known prior to the action. If there was no clear rule, then to create the rule by retroactive punishment is unfair."