An egregious example was a man held administratively for five years during which time the court refused to say why. Finally, counsel learned that he allegedly said that he wanted to participate in a suicide attack, but no evidence was offered to prove it.
Secret evidence is also an issue, described by one lawyer as "like entering a dark room and not knowing where to go or what to do." Courts may order evidence kept confidential and unavailable to counsel. It makes a proper defense near impossible, so counsel is hamstrung and clients are effectively guilty as charged.
Some evidence may be declassified, and all or most of it is in regular military tribunals. Still attorneys can't easily access it because specific documents must be described and requested. Without precise knowledge, they must make educated guesses based on previous cases and hope they apply to their clients.
Delays and other obstructions are always problems. In addition, judges have "complete discretion over whether to declassify evidence and tend to arrive at inconsistent decisions" from one case to another.
Even in regular military tribunals, prosecutors may use secret evidence although they can do it more easily for administrative detainees. However, under Israel's judicial system, the deck is heavily stacked against Palestinians very much subject to the whims of the court.
Interrogation reports are another issue. Everything learned must be recorded and made part of the evidence. Yet it's not automatically disclosed to attorneys. They must request it, but weeks may elapse before it's gotten, and usually the material doesn't help because inappropriate details are provided in lieu of relevant facts pertaining to the case.
Torture is another issue with reports saying it's routinely used against the great majority of detainees, and under Israeli law is allowed in "ticking bomb" cases that easily can apply to anyone. Disproving them is daunting as defendants' testimonies are ineffective against prosecution charges and disclaimers on detention treatment.
Further, prisoners must prove that their free will was compromised, and that confessions were obtained under torture. "This is difficult for several reasons:"
-- courts don't consider isolation torture;
-- the Israeli High Court ruled "that the attorney general may determine whether to charge interrogators (accused of torture) who have invoked the defense of 'necessity;' "
-- most often, lawyers can't obtain medical records for evidence of abusive treatment; and
-- even if prisoners prove torture, courts aren't obligated to dismiss evidence if they believe confessions were made despite torture or abuse.
The defense is further hampered by being rarely able to call witnesses in detention hearings. When allowed, they may only testify on matters of family life, moral character, and other factors unrelated to charges. Most often, military prosecutors are attorney's only information source, but not as witnesses. "Instead, the prosecutor answers all of the defense lawyer's questions without being sworn in and has the right" to answer none. To have witnesses in regular military tribunals, attorneys must apply for hard to get travel permits so they may appear in court.
Accessing the law is also hampered as military judges are governed by military orders and military appeals court decisions. Orders must be published but are only available in West Bank civil administration offices, accessible only by special permission. "In practice, many military orders remain unpublished and can be obtained only by contacting the Defense Ministry's legal department directly."
As for judicial decisions, military courts aren't required to publish them, and until recently only four defense attorneys got access to them. The military now publishes some decisions, but they're not widely distributed, comprehensive, or regularly updated enough to be helpful. As a result, lawyers rely mostly on word of mouth for information on new military orders and favorable decisions that may help their clients.
Further, military judges don't have to explain their rulings on matters relating to administrative detentions and extensions. It means defendants are at the mercy of courts and on whether counsel is on good terms with officials.
