Saturday, May 02, 2009
For an Unambiguous End to Torture, Israel Offers a Troubling Model
Since the new memos have been released, I've noticed that a number of commentators have started discussing how the US can follow Israel's 1999 Supreme Court ruling that, in their words, completely banned torture in Israel despite the threat of terrorism in that country. For example, an article in the New York Times from last week by Serge Schemann claims that although Israel had used 'moderate physical pressure' before 1999, after the 1999 ruling torture was rejected because it was unjustifiable—even in cases of ticking bomb scenarios—and that democracy meant not giving into the temptation to torture. Recently, Robert Baer, a former CIA officer and author, appeared on the Bill Maher show claiming the same - that Israel had successfully rejected torture and found ways to deal with terrorism without it, and that the US could follow in its footsteps and do the same.
The problem is that according to Israeli human rights organisations and the testimony of Palestinian prisoners, Israel has not refrained from torture or ill-treatment since 1999. Furthermore, the 1999 ruling that is so celebrated was far from an unequivocal ban on torture. In fact, the US has probably already learned from Israel—the notorious 2002 memos discuss in some detail Israel's use of the 'defence of necessity', the caveat applied to the 1999 'ban' on torture that arguably made it ineffective, and permitted torture and ill-treatment to occur without accountability and absolved interrogators of liability for their actions.
Before 1999, Israeli laws regarding interrogation were informed by a report from the Landau Commission, which found that 'moderate physical pressure' (including violent shaking, hooding, stress positions, sleep, and sensory deprivation) were 'regrettable but necessary' during interrogations dealing with 'hostile terrorist activity' in instances where more conventional interrogation methods had failed. This treatment would be subject to a variety of confidential safeguards. By 1998, the UN Committee Against Torture ruled that these methods constituted torture, and that in Israel its use had become routine and systematic. In 1999, the Public Committee Against Torture in Israel (PCATI) brought a case alleging torture, and the Supreme Court ruled that the moderate physical pressure was not permissible, and that the prohibition is absolute. An interrogation must only use methods that are 'reasonable and fair'; that is, those that are 'necessarily... free of torture, free of cruel, inhuman and degrading treatment of the subject and free of any degrading handling whatsoever' (interestingly, the court did not rule that sleep deprivation constituted an act that fell outside of lawful sanctions), The court also noted that torture is incompatible with Israel's Basic Law of Human Dignity and Liberty.
This is where Baer, Schemann, and others seem to have concluded their analysis; but the ruling does not stop there. The court included a fatal caveat in its grand declaration: the defence of necessity. Under the defence, interrogators who use moderate physical pressure can avoid criminal responsibility for their acts when they believe that circumstances require them. Based on section 34 (II) of the Israeli Penal Code, if an interrogator acts in a way that is 'immediately necessary' for the purpose of saving the life, body, or property of himself or another from serious, imminent harm, and claims that no other means would have achieved the desired result, he can avoid criminal liability. This sounds reasonable in theory: it immediately brings to mind the ticking bomb scenario, or a Hollywood set-piece in which the tough, determined interrogator saves a bus full of innocents at the last minute from a mad terrorist hijacker. In Israel, however—based on reports of human rights organizations—it hasn't played out quite that way.
Firstly, any further development of the defence beyond the paradigm of the ticking bomb scenario was left up to the government and the security services, who would have to lay down any guidelines advising when a situation could be deemed acceptably imminent to necessitate methods that would otherwise constitute an illegal act of torture. Adding to this vague and potentially over-permissive formula, part of the Court’s ruling stated that even a terrorist act that would occur in days or even weeks could be 'imminent'. Ultimately, the Court said, the Attorney-General could decide himself whether a ticking bomb scenario had in fact occurred and the interrogator had acted properly. PCATI claims that the Attorney-General, as a result, grants 'wholesale, with no exception, the necessity defence approval for every single case of torture', and that 'hundreds' of cases have been approved this way—with, up until today, not a single interrogator being held responsible for acts for improper use of 'moderate physical pressure'.
The claims of detainees are even more disturbing. In 2007, a Hamoked and B'Tselem report (you can read it here) claimed that Palestinian detainees had been punched and kicked; hit with objects; thrown against walls; bound painfully with plastic handcuffs (some detainees were left with marks for months); sworn at; subjected to religious and sexual humiliation and degradation; denied basic needs (such as visits to the bathroom, medication or water); left shackled for hours in the sun; held in solitary confinement; held in uncomfortable and unsanitary conditions; subjected to sensory and sleep deprivation; tied in painful stress positions; and subjected to threats and intimidation against the detainee or his family, including threats of sexual violence against family members. Whether tactics amount to torture or 'merely' inhuman and degrading treatment is a matter of academic discussion. All are, at the very least, ill-treatment; and none, arguably, are inherent in ordinary lawful sanctions. Some of these did not occur during the interrogation themselves but during arrest and detention procedures; but surely such treatment as this, even outside of the interrogation room, contributes as much to breaking the detainee down and treats them as inhumanely as it would if it were accompanied by questions. While the incidence of ill-treatment may have decreased since the ruling, it nonetheless occurs with alarming frequency; and surely torture is such an abhorrent act that even a single detainee tortured is one too many, and presents a cause for real concern. In addition, there are claims that the security services have created confidential manuals laying out methods of 'moderate physical pressure' that can be used against detainees and which give interrogators the permission to do so in advance. This suggests that even despite the Court’s ruling, such treatment has again become systemic.
As a result, PCATI initiated further legal action in 2008, having filed a contempt of court motion with the High Court against the Prime Minster and security services, claiming that 'the GSS systematically violates the Court's Judgment. In practice, a variety of sources point to the continued existence of a practice of GSS procedures and authorisations for torturing interrogees.' (See the PCATI website for more info).
So what can the US learn from Israel? Perhaps that when you prohibit torture and ill-treatment, you must do so absolutely for it to have any real effect. The creation of exceptions and defences to be developed, implemented, and monitored at the discretion of the government and security services is clearly going to be ineffective and subject to abuse. What the US needs (in my opinion) is a single, unifying federal statute against torture, one that unequivocally and effectively implements the Convention Against Torture. This is wishful thinking: we haven't even gotten so far as uncovering the full extent of torture and ill-treatment since 2001 quite yet; and the US has a number of declarations, reservations, and understandings applied to the Convention as it is. But while the 1999 Israeli ruling was an important one insofar as it declared, at least in theory, that torture is inconsistent with Israel's guiding democratic principles, it neither rejected nor prohibited torture absolutely. The real lesson is that any concessions to torture—even those that apply exclusively to emergency situations—open the door to further abuse. The Obama Administration has the perfect moment to reaffirm the international legal prohibition of torture outright by strengthening domestic law so that torture is never permitted and those that torture are always held to account; if there is any lesson to be learned from Israel, it is that for any such prohibition to be meaningful and effective, it must be absolute and unequivocal.