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Tel Aviv University
TAU Law hosts Yael Berda: Losing academic credibility by forcing complex reality of the conflict into post-colonial paradigm



Editorial Note:
Yael Berda, a former human rights lawyer currently at Princeton University, has been invited to speak at a conference at Tel Aviv University Law School. Berda is a self-proclaimed neo-Marxist, critical scholar who views Israel as a post-colonial state, a category popularized by Edward Said and adopted by Israeli critical scholars including Oren Yiftachel, Neve Gordon and Yehouda Shenhav with whom she collaborated in the past.
To bolster her thesis that Israel is a post-colonial state, a notion that mainstream political science and international relations do not accept, Berda works hard to compare Israeli practices with regard to permits for the Palestinians, to that of Great Britain, the quintessential colonial empire. She conveniently ignores the fact that the permit regime stems from the need to protect the Israeli population from terrorist attacks. No one who reads Berda's writing would ever know that terrorism has been a weapon of choice of Islamist and their masters in Tehran, as well as secular elements in the Palestinian Authority that rejected the Oslo agreement.
It would be equally hard to learn from Berda that Israel has given up control of the Gaza Strip and large part of the West Bank, in spite of lack of a formal agreement. In fact, the unilateral IDF withdrawal from the Gaza Strip has put about a million inhabitants within the range of missiles and rocket attacks from the Hamas- controlled territory.
No fair observer can deny the inconvenience that the permit regime has caused the Palestinians as they conduct their daily lives. At the same time, by trying to force the complex reality of the Israeli-Palestinian conflict into the Procrustean bed of the post-colonial paradigm, Berda and her hosts at the Law School at Tel Aviv University have lost all academic credibility.
Unlike other public venues, academia is expected to serve as a "market-place of ideas," a mission that was famously formulated by Wilhelm von Humboldt and implemented throughout the Western world. Manipulating reality and misrepresenting information most definitely do not serve that goal.

Law and History Workshop
The Law and History workshop hosts Yael Berda,
Princeton University Department of Sociology
Date 14/6/2012
Categorizing populations – 
forms, spaces, and emergencies: the mundane administrative legacies of colonial 
rule in India and Israel



Friday April 27th, 2012

9:30-11:00 1st Panel – From Subjects to Citizens: The Post-Colonial State

Yael Berda, Princeton University: Categorizing populations – forms, spaces, and emergencies: the mundane administrative legacies of colonial rule in India and Israel

Yael Berda (Princeton University)

Categorizing populations – forms, spaces, and emergencies: the mundane administrative legacies of colonial rule in India and Israel

The historiography of a population is not only written by scholars, articulated by politicians and educational materials in public schools, is it also constituted by the administrative categorizations and classification that people experience in census questionnaires, filling out forms for I.D cards, or when their passports and identity are checked at airports and border passages. The official form, in which a single box is checked, demands a choice, determined by a person or the state, of assuming an administrative collective identity.

On the basis of these categorizations of groups rights are granted or denied, determining not only political and social status but also affecting people’s daily life through facilitation or denial of the right of entry and exit into the state, property rights, rights of marriage and family unification and access to public services.

Practices of monitoring borders, control of population movement, classification of subjects and segregation of groups, issuing identity cards, constructing maps and processing passports are central to political regimes as they are constructed and experienced by both civil servants and the public. As part of it’s administrative toolkit, the British colonial state exacerbated racial and religious hierarchies yet this strategy of inequality undermined the universality and impersonality that Max Weber identified as core principles of an “ideal type” bureaucracy, in which civil servants are supposed to provide services to subjects “sine ira et studio” (Latin for “without scorn or bias”). In colonial states, governance by “the rule of colonial difference” between rulers and ruled is central yet unaccounted for in organizational theory. I argue that colonial bureaucracy follows a different set of principles than Weber took as his model.

By contrast with the rational-legal form of bureaucracy in which officials were constrained to operate impersonally with universal norms, colonial bureaucracies featured wide discretion, flexibility, secrecy and separate laws for separate population groups. This bureaucratic model has shaped the administration of population management in the postcolonies, where old sets of categories of formerly subject populations persist, through emergency regulations, administrative practices and organizational routines. In this paper I attempt to offer a comparative organizational account of population management practices in India and Israel to explore the role of these practices in constituting the relationship between the subaltern and the state.




Yael Berda

I will first describe the permit regime briefly, then continue to the existing sociologicalcritique of liberal bureaucracies, based on the classical work of Max Weber, and offer an alter-native critique of the bureaucracy of the occupation, based on the features of the colonial bureau offered in the works of Timothy Mitchell and Yehouda Shenhav. I will describe the historical chronology of the permit regime and subsequently offer a case study of Palestinianswho are denied entry into Israel by the secret service (Shabak) and the Israeli police.The core of the bureaucracy of the occupation can be discovered in the permit regime,a regulatory system that requires every Palestinian wishing to cross into Israel (including EastJerusalem), travel from the West Bank to Gaza or in the West Bank itself, to obtain a permitissued by the branches of the civil administration. The permit regime is intrinsic for every human and social need that requires freedom of movement in the occupied territories: per-mits for work (in Israel or the settlement), for commerce, medical treatment, universityeducation, visiting family, agricultural permits to one’s land in the “seam zone” and more.All permits are subject to the discretion of the military commander of the territories, thesecret service and the Israeli police.If we are to use Michel Foucault’s conceptualization in his Security, Territory, Population,(FOUCAULT, 2006, p. 108), it is the acts of sovereignty of spatial control exerted by the Israeliarmy, by monitoring territory with the threat of physical force (such as the checkpoints andwall) which constitute the fundamentals of the practices of governmentality that attempts todirect the apparatus toward the control and monitoring of the population, both as individ-uals and as a collective. The permit regime is perhaps the prevailing weapon in stiflingPalestinian society, way beyond the issues of freedom of movement. Its implications havealtered the relationships between communities and within them, as well transformed mari-tal patterns and social and economic class, based on the individuals’ ability to cross the bureau-cratic labyrinth of the permit regime and obtain the documents needed for movement.The permit regime supplants much of the need for physical violence, and as such is doesnot pose a threat to life and the physical body, but rather a denial of the conditions needed forlife. If we are to articulate it in the language of Giorgio Agamben, who has juxtaposed sover-eign power with the creation of “bare life” (AGAMBEN, 1998, 2005), human life that is stripped from its human rights by the State of Exception, in which the sovereign suspends the law throughthe law itself, the permit regime creates a procedural “bare life”, where bureaucracy deniesindividuals and collectives, on the basis of race, the basic conditions needed to sustain life.Procedural bare life takes its effect in its creation of uncertainty, denying the individual of their decision making power, as well as devastating social, economic, cultural and political life, sinceit obstructs, primarily, a potent power of a population – its ability to organize.Following this introduction, which conjugates Kafkaesque metaphors alluding to anybureaucratic system, we may ask at this point, in what ways does the permit regime differ fromother forms of bureaucracy? What are the distinguishing features of the permit regime thatcan classify it apart from the “ideal type” of liberal bureaucracy? Under what conditions does a bureaucracy fail to conform to the liberal model of bureaucracy?The liberal critique of bureaucracyAs early as Max Weber’s constitutive writings on bureaucracy (1968, 1970, 1978) he warnedof the dangers of confusion between means and ends, diagnosing bureaucracy as having an inherent disparity between efficiency and morality. Both conservative and critical thinkers The bureaucracy of the occupation: an introduction to the permit regime2

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criticized bureaucracy; the critique can be divided into two major sociological avenues. Onepath is the critique of the dysfunctio'nal patterns of bureaucracy, such as Thomas Merton (1940)and Michel Crozier (1964), whose method of research in his groundbreaking Bureaucratic Phenomenon was to attend to dysfuncti'onalities of bureaucracy in order to decipher its appara-tuses. The second track was the one that diagnosed bureaucracy as harboring a permanentmoral flaw. In the Dialectic of Enlightenment, (1969) Adorno and Horkheimer follow the path ofMax Weber’s warning of the indistinguishability of means and ends, resulting in an organiza-tional system’s preservation of itself while omitting its own initial values and goals. Frantz Neumann (1944) distinguishes between the rule of law and the rule by law, rule by bureau-cratic administration, focusing on the practices of the Nazi bureaucratic regime. Hannah Arendt(1951) viewed bureaucracy as a banal form of evil, one that constituted the basis for totalitar-ian regimes. Sigmund Bauman follows in her footsteps, while tracing the road to the human extermination machine through the bureaucratic order and paperwork of the Nazi regime.This line of criticism views bureaucracies as containing an inherent flaw, part of the DNA ofmodernity, that inevitably will lead to the immorality of the system and the loss of theability of its agents to discern and act on the basis of liberal morals and values.However, another type of bureaucracy has existed in the colonies, which Arendt pointsto, when she traced one of the origins of totalitarianism in the imperial administration (ARENDT,1951). In her chapter on race and bureaucracy, Arendt focuses on English colonial bureau-cracy and its view on the rule of subject races. She maps the thinking of the Lord Cromer,than viceroy of Egypt. In the two books written by him in 1908, Cromer uncovers the basicstructures of colonial bureaucracy. As Yehouda Shenhav explains: “Cromer devised a formof bureaucracy for the governance of ‘the subject races’ in societies which allegedly ‘couldnot be mapped’ into the catalogue of modern nation states. This model – which was part ofthe British philosophy of indirect rule and which diverged from Weber’s ideal type of bureau-cracy (see SHENHAV 1999; 2003a) – was conducive to imperial expansion as well as to thedenial of national aspirations among the so-called ‘subject races’. Cromer’s work was discov-ered in the late 1940s by Hannah Arendt (1951) who used his case to draw a link between19th-century imperial expansion and 20th-century state violence exerted by totalitarianregimes. Arendt argued that ‘race thinking’ and bureaucratic rule could unleash extraordi-nary power and destruction”. (SHENHAV, 2005). As can be asserted from the works of Cromer, an executive official theorizing his own policies and administrative practices, in lieu of lib-eral bureaucracy’s reliance on rules, stability, hierarchy, accountability, efficiency and speed,colonial bureaucracies tenets are secrecy, flexibility, ever-changing rules by military decrees,personalized governing and total discretion.This article is an invitation to investigate the inner workings of the bureaucracy of theoccupation. I argue that the bureaucracy of the occupation, and specifically the permit regimeis based on the administrative memory of colonial bureaucracy, whose fundamental elements differ greatly from the model of liberal bureaucracy. I suggest that the liberal critique ofbureaucracy, be it the critique of its dysfunct'ionality or the critique of the growing disparitybetween moral values and administrative functi'ons, still complies with the basic formula ofWeberian bureaucracy. A deeper investigation into the apparatuses of colonial bureaucracyreveals that its basic organizing foundations are the very dysfun'ctionalities and exceptionsof the liberal bureaucratic model. Thus, its deviations from the liberal model are not devia-tions at all, but the inherent and fundamental foundation of a bureaucratic system.Yael Berda3

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The fundamentals of the permit regimeThe bureaucracy of the occupation relies on the organizational elements of the colonialpermit regime that was implemented against the Palestinian citizens of Israel, during the mil-itary rule of the Arab population between the years 1949 and 1966. However, it introducesa new element, where the bureaucracy is not simply based on the racial hierarchy that exist-ed in all colonial regimes, separating the rules that applied to locals from those that appliedto the imperial ruling class, but rather one which merges the category of race with the cate-gory of “security threat”, producing what I have named as “security theology”. In the rest of the paper I wish to map the basic sprawling administrative apparatus of the bureaucracy of the occupation, its multiple departments and organizational bodies, and describe the con-trol of the secret service of apparatus through the ongoing creation of a “security theology”which provides the regime of justification for its practices. I will focus on the permit regimeand specifically, permits allowing workers to enter Israel, since this type of permit describesthe regime as one of privileges and, according to international law, a sovereign state has an uncontested prerogative to deny or allow entry into its territory.The permit regime is a separate administrative system that has developed organically through its administration, without direct decision-making by government or army officials.The regime is one where the bureaucrats bear colossal discretionary power while remainingnameless, free of administrative responsibility and accountability. Since this separate systemremains out of the limelight of public debate in Israel, it does not encompass modes ofrestraint. There are no options for appeal, critique or intervention in decision-making.The permit regime is comprised of a wide array of administrative bodies and departments,headed by the civil administration of the Israeli military and realized by the liaison officesestablished by the Oslo Accords, representatives of the general secret service (Shabak) andthe Israeli police, the investigation units of the border police, the Ministry of Interior, the Labor Ministry, the office for foreign workers, the command of the coordinator of govern-ment action in the territories and the military courts. What I have referred to as “procedur-al bare life” manifests as a result of daily administrative practices of these competing andcollaborating departments, mainly since it lacks most features of classic liberal bureaucracy,which include some form of appeal, critique and accountability. The system is secret; its rules are unknown to those who are not administering it directly, in their own field of operation.Its decision-makers are unknown and it is infested with conflicting decisions and what mayseem like acute managerial inefficiency. However, all these features epitomize the effective-ness of the regime in preventing Palestinians from entering Israel as workers. These fea-tures and the bureaucratic mayhem they create for seekers of a permit, become powerful tools for population control and offer many an opportunity for intervention and mass recruit-ment of informers by the secret service, a subject that I will elaborate on later. In this system,space and time, uncertainty and fear of the discretionary power of the secret service become power tools of procedural violence against the Palestinian population, turning their lives into“procedural bare life”, which does not pose a direct threat to physical existence but deniesthe basic conditions needed for daily life.I will offer a basic outline of this system that is constructed by a patchwork of authority,states of exception, departments and military decrees that create the apparatus of the man-agement of life. I have had the opportunity to peek into this apparatus following my dailylegal work as a defense lawyer of Palestinians from the West Bank and East Jerusalem, whichThe bureaucracy of the occupation: an introduction to the permit regime4

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has provided the means for information through the daily legal interaction with the variousauthorities.But first, I wish to return briefly to the ideal type of bureaucracy Max Weber contracted asbeing “quick and exact, clear, stable and known”. The bureaucrat operated by published andacknowledged rules, knew the law and was responsible for keeping a clear connection and dis-tinction between means and ends. Weber viewed uncertainty as the source of inefficiency,which in turn, would limit the possibility of the applicant to plan their life, as well as fail thesystem in its search for standardization and effective supervision.As Hannah Arendt shows in the origins of totalitarianism, racially based imperial bureau-cracies were the administrative foundations of totalitarian regimes. Arendt traces those ori-gins to the disparity between bureaucratic practices in the metropolis, based on the liberalset of values, and their extreme transformation in the colonies, where bureaucracy was car-ried out differently through the hierarchy of race. As I claimed earlier, the bureaucracy ofthe occupation draws its inspiration from the colonial bureaucratic model, which was usedas a complementary weapon to physical violence in order to control the subject races underimperial occupation. In the works of Timothy Mitchell (2002), Yehouda Shenhav (2005) andStoller and Cooper (1997), we can derive the organizational foundations of colonial bureau-cracy which are secrecy, administrative flexibility, instability and uncertainty, complete dis-cretion and the lack of accountability of the administrative authority, provided by the anonymi-ty of decision makers.I assess the bureaucracy of the occupation is an evolved form of colonial bureaucracy, thathas created an effective, racially based form of control that reduces the need for physical violence. Since its foundations are the exceptions and deviations from liberal bureaucracy,those attempting to aid Palestinians, be they human rights organizations, lawyers or work-ers’ unions, simply synchronize the bureaucracy and structure it administratively, throughthe making of new exceptions in specific cases, which remain exceptions to unknown rules.In this way, the bureaucracy of exception gains more power and control over the lives of the Palestinian population, since the permit regime itself gains power the more it is acknowl-edged, contested and actually legitimized. In order to better understand the inner workingof the apparatus, it is helpful to understand the historical construction of the permit regime.The Oslo Accords – the sketch of bureaucratic controlIn 1972, five years after the occupation of the Palestinian territories, Israeli defense minis-ter Moshe Dayan declared a policy of “open borders” between Israel, Gaza and the West Bank.In 1981, Government Executive Decision 106 established the civil administration of the Israelimilitary in order to separate the military actions of the army from the management of Palestinian civil life as required of the occupying force by international humanitarian law.One of the first administrative actions of the nascent civil administration was conducting apopulation census, which would, decades later, prove to be the most powerful tool of the per-mit regime.During the first intifada, the Israeli Army began to announce and enforce curfews and clo-sures on West Bank villages. But only in 1989 can we mark the birth of the current permit regime, when the army demanded workers from Gaza to carry a magnetic card as a prereq-uisite of obtaining permission to enter Israel. In 1991, during the Gulf War, the first closureon the territories was enforced. Checkpoints and barricades were set up to enforce the clo-Yael Berda5

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sure, which lasted over one month. Dayan’s general permit of entry that had been grantedfor two decades was cancelled and a new military decree required Palestinians to obtainindividual permits for entry into Israel, allowing the military commander of the occupied terri-tories full discretion in distribution of permits. In 1993 the first closure without an end datewas announced. It was a first operation of what was to later become the main feature in popu-lation control, used as a political, military and economic tool against the Palestinian popula-tion. In May 1994, the interim agreement (Gaza-Jericho Agreement) was signed betweenIsrael and the PLO, first dividing the West Bank into three areas and then designating thetransferring of authority in the civil spheres (besides land issues) from the civil administra-tion to the Palestinian Authority. This was promulgated by delegating areas A, B and C tothe Palestinian Authority, the Israeli armed forces and the civil administration with a patch-work of varying authority over security and civil issues. The civil administration, once anemployer of over 30,000 workers, was reduced to 500 bureaucrats, soldiers and civilians. Thereduced civil administration was responsible for coordination and liaison with the PalestinianAuthority, the administrative control of Palestinian movement into Israel and between theWest Bank and the Gaza Strip and the governing of the Jewish settlers that remained in area C(approximately 60% of the land in the OPT). The second annex of the agreement estab-lished the District Liaison and Coordination Offices (DCLs) in seven Palestinian areas (todate, there are 10 liaison offices which comprise the main administrative spaces of the per-mit regime). The DCLs have become sites of permanent waiting for Palestinian individualsseeking permits of every kind in order to travel (work permits, access to medical care per-mits, education permits for students and faculty, agricultural permits, family unificationpermits, seam zone permits and permits to drive a car within various land cells of the OPT).The waiting is joined by a perpetual uncertainty, hope and despair in achieving the task of completing the bureaucratic labyrinth. The organizational change in the civil administration bared implications not only on the size and effectiveness of operations, but was a focal pointin the shifting of the governing paradigm – from one focused on organizing and managingcivilian life in the OPT to a security paradigm whose main goal was the separation of thePalestinian population from the Israeli population. This was also the event in which the secretservice ceased to be an advising body, and became a main decision-maker concerning Palestinian freedom of movement.The law (rules and decrees) that govern Palestinian movement are racially based, negat-ing the fundamental principal of territoriality, which asserts that one law apply to all popu-lation within a specific territory. The prevention of movement is applied to Palestiniansonly, while the Jewish settler population is not restricted regarding freedom of movement.Jointly using the Israeli population census database, a double-headed bureaucracy was erect-ed, where Israeli and Palestinian coordination and liaison offices administered work per-mits for Palestinians who worked in Israel. The structure of the double bureaucracy was stillin the process of precarious administrative construction, when the structure crashed due tothe political changes and the turbulent security situation in Israel and Palestine following thecivilian bus bombings of 1996 in Israeli cities. The crash of the double-headed bureaucracyleft the Palestinian DCLs to funct'ion as extremely slow post offices, most of the time delay-ing further the request of individual Palestinians to the Israeli DCLs. The Israeli DCLs con-tinued to funct'ion until October 2000, the days that have come to be known as the el Akza uprising (intifada). The DCLs severed their connection with the Palestinian Authority admin-The bureaucracy of the occupation: an introduction to the permit regime6

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istrative bodies and the permit regime was implemented draconically. The work permits forWest Bank Palestinians became political tools in the hands of the defense minister and the labor and commerce minister, used in negotiations with the Palestinian Authority. The build-ing of the separation wall, the establishment of the border police units of the “JerusalemEnvelope” of the wall, the legislation and implementation of high penalties and jail sentencesfor Israelis employing or driving Palestinians without permits weighed heavily on the small-er independent employers who had for decades relied on Palestinian labor. Over 50% ofPalestinian workers lost completely their sole source of income, their only remaining optionto work illegally with the risk of being beaten or jailed for illegal entry. At this point, the per-mit regime was severely enforced at all levels, while a yearly average of 1,000 Palestiniansserved jail sentences for illegal entry into Israel in the military and civil Israeli courts. The permits and magnetic cards became the single most important issue in one’s ability to sus-tain the conditions needed for life for residents of the West Bank. As the wall was complet-ed and the checkpoints became permanent, the permit regime gained powerful control overmovement and patterns of Palestinians in the West Bank. After October 2000, 200,000Palestinians were classified as “Denied entry into Israel for security reasons”,2 preventing them from obtaining a magnetic card, a prerequisite for requesting a permit of any kind. The Israelipolice categorized another 70,000 Palestinians as “denied entry” by secret, internal regula-tions that were published for the first time in May 2007.Effective inefficiency – the creation of uncertainty and “procedural bare life”As described earlier, the apparatus of the permit regime is inefficient, cluttered by conflict-ing orders, departments and issues, where there is no certainty, administrative or other, nora process of appeal, right to plea or be granted a hearing, or need for administrative argu-mentation or accountability.The applicant, usually in urgent need of a permit, is sent from one department to thenext, where there is no connection between the official making a decision and the officialwho actually signs the permit. The closure policy,3 physically preventing movement of thosewith permits as well as a crackdown on illegal workers, created an administrative block bycalibrating all permits without warning, compelling the to restart the entire bureaucraticprocess of obtaining permits by the employers de novo. The process of obtaining a permit for a Palestinian worker is a rigorous one. Employers wishing to employ Palestinian workersmust first prove to the Ministry of Labor that no Israeli can work in their business: usually aprocess that takes a few months. They are then given an allotment of Palestinian workers.With this allotment form they must go to the payment department of the employment serv-ice, request specific workers and pay the equivalent of $250 a month in taxes per worker. The department forwards the requests to the DCLs in the civil administration of the occupied ter-ritories.As I mentioned, a prerequisite to obtaining a permit is that the worker possesses a biomet-ric “magnetic card” indicating that he has not been categorized as a “security threat” by thesecret service or a criminal threat (on traffic tickets as well) by the Israeli police. I will elab-orate further on the subject of the classification as “denied entry for security reasons” later.Another prerequisite for entry into Israel is that the worker meets the criteria, be at least 30years old, married and the father of children. The age criteria changes based on the deci-sions of the defense minister. Criteria changes are not announced to the public, and remainYael Berda7

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unknown until they come into effect. Most workers and employers are informed of the changeswhen they are stopped at the checkpoints, even when bearing permits, because they are under-age. I will not go into the results of the age criteria, which has stratifying implicationson young men’s unemployment and the difficulties of the construction industry that relies onworkers over the age of 35. Workers in the settlement areas can be married with children,21 or 28 years old, depending on the administrative assessment of the “security situation”.Permits arrive at the DCLs in the locality of the worker and between four days to two weeks.Most of the permits allow for workers to be in Israel from 5 am to 7 pm. Due to the longlines at the checkpoints, workers will gather from 3 am at the checkpoints.The system allows some unpublished exception to the basic internal regulations. Forinstance, there exists an option for exceptional permits, which allow for longer work hourssuch as a permit from 5 am to 2 am. The 24-hour permit, a rarity allowing maximum free-dom of movement, is given to employers after passing a Special Committee for ExceptionalPermits, which convenes once a month at the headquarters of the civil administration. Anyrequest of the employment department of the civil administration is lengthy, usually accom-panied by degrading treatment, long waiting periods and general uncertainty about the hours that the department func'tions, who the officials responsible for decision-making are, andwhat their area of responsibility is. Because of the variety of workers that includes militaryofficers, low-ranking soldiers in compulsory service and civilians, who tend to specific tasks,time is spent mostly on finding the right department or person to process the request. Anapplication or request to different administrative bodies in the local district liaison offices,in the civil administration, the Department of the Coordination of Government Actions inthe Territories (Cogat) or commanders in the field, will render the applicants with severalconflicting answers to the same question. Peeking over the shoulder of the military bureau-crat shows that the only exception to the uncertainty is that the applicant has been classifiedas “denied entry for security reasons”, which is undefinable by any administrative body exclud-ing the secret service.The category of “Denied entry for security reasons” and the apparatusof recruiting informantsIf we are to use Carl Schmidt’s “Political Theology” (1922) as a theory of sovereignty, it canfacilitate the understanding of the secret service’s use of a “security theology”, the regime of justification that underlies the bureaucratic apparatus of the permit regime. As Shenhavexplains “Schmitt pointed an accusing finger toward liberal political theory which allegedlyincapacitated the sovereign by forcing him to rely on, and be restricted by, the legal rule oflaw. He criticized liberal law and democratic parliamentary institutions for lack of “decision-ism” and for neglect of the exception, namely how the legal system suspends itself in light ofpolitical threats (SCHMITT 1922/1988, p. 14). Instead, he suggests that all significant con-cepts of modern theory of the state are secularized theological concepts, arguing that theomnipotence of the modern lawgiver is derived from theology. In Political Theology the“Sovereign is he who decides on the exception” (SCHMITT 1922/1988, p. 5), suggesting thatthe exception in jurisprudence is analogous to the miracle in theology (SCHMITT 1922/1988,p. 36)” (SHENHAV and BERDA, 2007).In the bureaucracy of the occupation, the category of “denied entry for security rea-sons”, applied to almost one third of young Palestinian males, serves as the sovereign’s “mir-The bureaucracy of the occupation: an introduction to the permit regime8

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acle”. The “security threat” serves as a ubiquitous category, one that enables the secret serv-ice to suspend all other legal and administrative procedures, published or unpublished.This security paradigm, views every Palestinian as a potential threat, and the only objectivecertainty on this scale is the denial of entry. I will shortly relay the various cases, which myresearch has produced as indications for the reasons that one is classified as “denied entry”.Since the classifications and categorization by the military civil administration are secretand unpublished, the only way to assess the reasons is by the grouping into categories of the300 cases I have represented in. as I mentioned earlier, the “denied entry” category pre-vents one from obtaining a magnetic card which is a prerequisite for requesting a work per-mit. In 2006, there were 200,000 Palestinians who were classified as “denied entry for secu-rity reasons” and another 70,000 who were classified as “denied entry for criminal reasons”by the Israeli police. In the summer of 2007, another 12,000 Palestinians were classified asdenied entry by the police (denial of entry by the police includes people who have pendingcases in criminal or civil courts, cases opened by the police but never investigated, or whohave served jail sentences for any charge, and are denied for two to five years after they arereleased, and those who have not paid their traffic tickets). Only through the database ofthe civil administration can one obtain the knowledge if they are denied entry by the policeor by the secret service. In the computer system of the Ministries of Interior and Labor, alldenials of entry are classified as security reasons.The criteria and rules for denial of entry are not published, since according to the military legal advisor of Judea and Samaria4 the publishing of the criteria would create asecurity threat in itself, since terrorist organizations would then gain information thatwould aid them in evading the permit regime. From the experience of hundreds of appli-cations through lawyers and human rights organizations we can deduct the reasons forclassification:1. If a family member of the applicant for a permit was killed or injured by Israeli forces,the entire family will be classified as “denied entry”, for the fear of revenge. Thisclassification applies to all family members, including women, and people over theage of 80.2. If a family member of the applicant is serving a sentence in an Israeli jail on a securi-ty offence (including being part of a political organization deemed illegal by militarydecree) or is currently in administrative detention.5 There are exceptions to this rule,but we have no knowledge of the reasons or constancy for these exceptions.3. If the secret service has received information about the political or military activitiesof the applicant. In many encounters, a family or neighborly dispute is the backgroundfor the information passed to the secret service. (In tens of cases, it is a commonthreat in labor disputes between Israeli employers and Palestinian workers that if theworkers will not comply with the employer, the employer will relay information to admin-istration and will prevent the worker from entering Israel.)4. The applicant resides in a village that has been classified a security threat, a classifica-tion that includes all residents of a specific locality.Yael Berda9

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5. If an applicant has refused a proposition by the secret service to work as an informer for the secret service or the police, he will be classified as denied entry, until he choos-es to comply.The bureaucratic labyrinth of the permit regime constitutes many possible entry pointsfor the intervention of the secret service in the administrative procedure. These inter-ventions usually include an offer to work for the secret service and in return receive a mag-netic card and a permit. (These propositions have been used also in urgent cases, such as a family member who needs a life-saving operation in Jordan, will be denied exit intoJordan – a severe violation of international human rights law –, if the family memberdoes not agree to serve as an informer). The applicant who is denied entry is ordered tocome to the offices of the secret service, usually located in caravans or buildings behindthe DCL offices. The applicant fills out a form, called an “Istirham” (request for pardon).In many cases, people denied entry arrive early in the morning, give their identification cards to a guard and are told to wait, sometimes until sundown and than sent home. Someapplicants wait for months and years, daily, outside the offices of the GSS is order to speakto a “captain” in the attempt to remove the classification of “denied entry”. In almost everycase I have knowledge of, during an interview with the representatives of the secret serv-ice, the applicant is offered “work” with the secret service in exchange for the abatement of the classification and receiving a permit. In some cases, cash payments are offered aswell. In the cases that the applicant who refuses to “work” with the secret service is ofhigh interest to the secret service, his decline to accept the offer will create the factor forthe continuation of the denial of entry. There are exceptions to this rule, in which appli-cants have declined the offers, and did receive a permit after the classification was removedfrom the administration’s database. We cannot know what the reasons are for these excep-tions, or their actual numbers.The recruitment of informers who are part of a protected civil population, by the forcesof the occupying power is completely prohibited by article 31 of the 4th Geneva Convention.However, the widespread violation of this customary international law through the recruit-ment of informers by bureaucratic means, since the establishment of the permit regime,15 years ago, has created great suspicion and atomization in Palestinian society, including avery limited trust within the nuclear family, for fear of the pressures of the secret service.Hannah Arendt describes this situation succinctly:The effectiveness of terror (alluding to government terror) depends almost entirely on social atom-ization. Every kind of organized social opposition must disappear before the full force of terrorcan be let loose. This atomization – an outrageously pale academic word for the horror it implies– is maintained and intensified through the ubiquity of the informer who can be literally omnipresentbecause he is no longer merely a professional agent in the pay of the police but potentially everyperson one comes in contact with. (ARENDT, 1951, p. 253)However, the “denial of entry for security reasons” is not conclusive, or irreparable. In somecases, requests and complaints to the foreign affairs department, or the international organ-izations liaisons department in the command of the coordination of government action inthe territories can produce an “exceptional permit” or a “special exceptional permit given The bureaucracy of the occupation: an introduction to the permit regime10

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in spite of the classification as denied entry”. There is an array of exceptional permits withnames similar to those above, but they are difficult to obtain. The only possibility of appealof the classification as denied entry, is recruiting a lawyer who will appeal to the legal advi-sor of Judea and Samaria, the legal department in charge of advising the military command-er in the occupied territories. In 75% of the appeals the answer, given one to two months later, is laconically similar: “following secret information that exists in his case, the applicantis classified as denied entry for security reasons. You may appeal again in one year.” I donot know of any case where a reason was given for the denial of entry, and after some con-versations with soldiers and officers in the office of the legal advisor, I came to the conclu-sion that they simply do not know the reasons, and the answer is dictated by the secret serv-ice with no process of assessment and critique of the secret service decision. The only possibleappeal at this point is a petition to Israeli High Court that demands financial resourcesand is deeply feared by much of the Palestinian population. In 75% of the cases petitionedto the Supreme Court in 2007 (60 cases), the classification was lifted before a court hear-ing, through negotiation with the state attorney who, in turn, negotiates with the secret serv-ice, which they represent in the Supreme Court. In the remaining cases, the state attorneyreplies to the court that there is no legal grounds for the petition, since there is no right toenter Israel, and it the prerogative of the sovereign state to accept or deny anyone into itsterritory. Usually, even in the answer to the court, the applicant does not know what is heldagainst him. The answer will include a phrase such as “the applicant has ties or connec-tions to terrorist organizations”. When a court hearing takes place, the representatives andlegal advisor of the secret service show the judges (usually three) secret evidence, whichthe applicant and his defense counsel cannot see. There is no point when the informationcan be contested since during the entire legal procedure the reasons for the classificationremain secret and unobtainable to the applicant or his lawyer. In some cases, the SupremeCourt has denied appeals without a hearing based solely on the secret service assessment.This practice did not continue in 2007.The classification of denial of entry is justified by the coordinator of government actionin the territories6 by the fact that the state cannot distinguish between “friend” and “foe”.These definitions return us to Carl Schmidt, whose major critique of the liberal polity was the constraints it drew on the executive power in its ability to distinguish between friendand foe within the borders of a state’s territory. (SCHMITT, 1922, p. 24)The security threat and security theology“The government of Israel does not know of a process of classification named ‘Denial ofEntry’” wrote the spokesman of the prime minister’s office in a letter to attorney Limor Yehouda, from the Association for Civil Rights in Israel.7 The prime minister’s office is respon-sible ministerially for the operations of the secret service. The security threat, the theologi-cal miracle of the bureaucracy of the occupation, creates an island of complete discretionof the secret service. The security paradigm’s view on population management since the OsloAccord has formed an administrative sphere where inside every Palestinian, regardless of their profession, class or age, hides the phantom of the terrorist, which, in turn, allows thesecret service uncontestable decisions and a separate institutional field of power. The prac-tices of the permit regime create a dynamic of exponential power, necrotized and unsuper-vised, that opens a sphere where the law is suspended and the daily bureaucratic and physi-Yael Berda11

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cal reality of people are controlled by unknown administrative bodies and officials, who arethe actual “phantom sovereign”.The system does not allow a free flow of information to the elected or delegated deci-sion-makers, and in this way disconnects the system’s ability to change and shift policy. Anotherlook beyond the shoulder of the military commander of the occupied territories or a SupremeCourt judge reveals an inherent anxiety and fear to contest the decisions of the secret serv-ice. Because of the security expertise of the secret service, contesting such a decision couldinvolve the responsibility of a real security threat and therefore this freezes the ability of anyindividual in the system, regardless of administrative or legal position in the hierarchy, tomake changes in the bureaucracy that is erected upon “security theology”. The procedureof secret information in the courts, and the inability to contest evidence, create a space ofvirtually total control and uncertainty, where the only possibility for certainty is the exis-tence of a security threat in itself. This process turns security-based decisions into a “securi-ty theology”, to a belief, that those who contest it, are deemed as heretics that can bring acalamity. This belief justifies and gains power as it proceeds daily, through an omnipresentcontrol of the bureaucratic system.The permit regime, as I argue, is inefficient, but extremely effective. It replaces physical violence, with sterile administrative control, backed by the dynamo of the security threat. Itis built upon the spatial reorganization of the territories, and relies on technology and doc-umentation in order to administer racially differential rules of movement. The proceduralbare life of the Palestinians does create the fear of death, but rather denies the conditionsfor life. The security theology provides the moral justification as well as the organizational foundations of decision-making in the field of Palestinian population management and thedenial of freedom of movement. The bureaucracy of the occupation is vast, complex, andconstantly changing and reforming. Its potent power is undeniable, forming and controllingthe lives of individuals and collectives through administrative violence. This article is aninvitation to explore the bureaucracy of the occupation, offering possible ways of decipher-ing the apparatuses of population control in the Palestinian territories, and in other formsof colonizing regimes, where a hierarchy of race defines the legal and administrative opera-tion of population control.


AGAMBEN, Giorgio, Homo Sacer: Sovereign Power and Bare Life, Stanford University Press, Stanford1998.AGAMBEN, Giorgio, State of Exception, University of Chicago Press, Chicago and London 2005.BAUMAN, Zygmunt, Modernity and the Holocaust, Cornell University Press, New York 1989.CROZIER, Michel, The Bureaucratic Phenomenon, The University of Chicago Press, Chicago 1964.FOUCAULT, Michel, Security, Territory, Population (Lectures at the College De France), Picador, NewYork 2006.FOUCAULT, Michel, Society Must Be Defended: Lectures at the College De France 1975-1976, Picador,New York 1997.MERTON, Robert, “The Bureaucratic Structure and Personality”, Social Forces, vol. 18, no. 4,1940, pp. 560-568.MITCHELL, Timothy, Rule of Experts: Egypt, Techno-Politics, Modernity, University of CaliforniaPress, Berkeley 2002.The bureaucracy of the occupation: an introduction to the permit regime12

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NEUMANN, Frantz, Behemoth - The Theory and Practice of National-Socialism, Harper & Row, NewYork 1966, pp. 48-52, 89-112.SHENHAV, Yehouda and BERDA, Yael, “The Political-Theological and Racial Foundations ofColonial State Bureaucracy: Juxtaposing the Israeli Occupation of Palestinian Territories withColonial History”, in OFIR, Adi (ed.), Zone Books, New York (forthcoming).SHENHAV, Yehouda, “Imperial Governance, Nazi Bureaucracy and the Omission of ColonialLegacy”, paper presented at the International Critical Management Studies Conference, Cambridge,UK, 4-6 July 2005SHENHAV, Yehouda, “Fusing sociological theory with engineering discourse: The historicaland epistemological foundations of organization theory”, in KNUDSEN, Christian and HARIDIMOS,Tsoukas (eds.), The Oxford Handbook of Organization Theory: Meta-theoretical Perspectives, OxfordUniversity Press, Oxford 2003, pp. 183-209.SHENHAV, Yehouda, Manufacturing Rationality, Oxford University Press, Oxford 1999.STOLLER, Ann L. and COOPER, Frederick (ed.), Tensions of Empire: Colonial Cultures in a BourgeoisWorld, University of California Press, Berkeley 1997 (introduction).WEBER, Max, From Max Weber: Essays in Sociology, edited and translated by H. H. Gerth andC. Wright Mills, Routledge and Kegan Paul, London 1970.WEBER, Max, On Charisma and Institution Building, The University of Chicago Press, Chicago1968.WEBER, Max, Economy and Society, The University of California Press, Berkeley 1978.Notes1.This article is an excerpt from a dissertation towards a Master’s degree at the Department of Sociology at TelAviv University. I wish to thank Professor Yehouda Shenhav for his thoughtful instruction, Sylvia Piterman fromMahsom Watch for many of the collected reports on procedures and cases of entry denial and my clients, thosethat have shared their plight with me in the attempt to appeal their status of “Denied Entry” to the Israeli HighCourt.2. Interview with Brigadier General (Res) Ilan Paz, former head of the civil administration in the occupied terri-tories during the years 2002-2005, Tel Aviv, December 2006.3. For a history and analysis of the closure policy, see HASS, Amira, “Israel’s Closure Policy: An Ineffective Strategyof Containment and Repression”, Journal of Palestine Studies, issue 123, 2002, pp. 5-20.4. Interview with Liron Alush, head of the population registry department in the office of the legal advisor to Judeaand Samaria in the civil administration in the occupied territories, November 2005).5. Administrative detention is a procedure under which detainees are held without charge or trial. No chargesare filed, and there is no intention of bringing a detainee to trial. By the detention order, a detainee is given aspecific term of detention. On or before the expiry of the term, the detention order is frequently renewed. Thisprocess can be continued indefinitely.6. Letter of Colonel Daniel Beaudoin, head of the Foreign Relations Branch, coordination of government activi-ties in the territories, Israel Ministry of Defense, to Physicians for Human Rights, 4 June 2004.7. November 2005.

Yael Berda


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