The day after the U.S. Senate Intelligence Committee’s Report on Terror dominated American and international news, the Israel media headlined Israel’s practices and protocols regarding the use of torture as one of the CIA’s justifications for its abusive treatment of suspected terrorists.
Yet, these so-called justifications seem to bear little resemblance to the constraints imposed by Israeli law. A striking example is the CIA’s rationale for its interrogation procedures. Ignoring the 1999 Israeli Supreme Court decision that prohibited using psychological pressure and “a moderate degree of physical pressure” even when human lives were in jeopardy, the CIA lawyers based
their “ticking bomb” argument on a more permissive 1968 ruling that the Israeli Supreme Court subsequently overturned.
As a matter of principle, the Israeli Supreme Court has ruled that the security services’ authority to infringe on individual human and civil rights must be designated in specific legislation, meaning that the responsibility lies in the hands of the Knesset rather than the courts. However, in the 13 years since 9/11, some – but not all – of the reports on the CIA’s counterterrorism measures were only available to a few select congressional committees, and the CIA’s interrogation authority has never been specifically legislated. Although bits and pieces of information surfaced from time to time, the public – and most lawmakers – only learned of the extent of the CIA’s activities when the 528-page version of the Report on Terror – extrapolated from the mostly classified official 6,000-page report – was released in early December.
There are many distinctions between how the United States and Israel walk the fine line between national security and the protection of human life in times of terrorism or war – among them accessibility to the judicial process. “Our starting point in Israel has been that the doors of the Supreme Court – which in Israel serves as a court of first instance for complaints against the executive branch – are open to anyone wishing to complain about the activities of a public authority,” stated Justice Aharon Barak, who headed Israel’s Supreme Court from 1995 to 2006.
In his 2008 lecture on “Human Rights in Times of Terror – a Judicial Point of View,” Justice Barak pointed out that “when human rights were directly affected,” Israel’s Supreme Court rejected government arguments that “counterterrorism activities are beyond the reach of the judiciary.” He noted that this has been the basis of the court’s rulings on “the power of the state to arrest suspected terrorists and the conditions of their confinement in Israel or outside it … the rights of suspected terrorists to legal representation and the means by which they may be interrogated.
“The court opens its doors to anyone claiming that civil rights have been violated,” he added. “Everyone has standing. This is the general approach of the court in times of peace. We apply it also in times of terror. It is used mainly by civil rights associations that come to us in defense of human rights of those sectors of society that most people do not wish to protect – including, of course, suspected terrorists.”
However, these rights do not extend to the West Bank, which is governed by the Israeli military. Under its authority, suspects can be arrested and held in administrative detention, which has no time limit and can be extended indefinitely. According to B’Tselem-The Israeli Information Center for Human Rights in the Occupied Territories, “Over the years, Israel has placed thousands of Palestinians in administrative detention for prolonged periods of time, without trying them, without informing them of the charges against them, and without allowing them or their counsel to examine the evidence. In this way, the military judicial system ignores the right to freedom and due process, the right of defendants to state their case, and the presumption of innocence, all of which are protections clearly enshrined in both Israeli and international law.”
Nonetheless, it was a petition brought by lawyers for five Palestinian suspects and two civil rights organizations – the Public Committee against Torture in Israel and the Association for Civil Rights in Israel – that resulted in the 1999 Israeli landmark decision, banning the use of torture during interrogation.
However, in the same ruling, the court did allow security officials to claim the “necessity defense” if they were later prosecuted for interrogation methods they employed, but with the caveat that, depending on the circumstances, the Attorney General or the court could determine whether the “necessity defense” would truly be applicable.
According to an article by Anshel Pfeffer in the Dec. 9 issue of Haaretz, in addition to citing Israeli Supreme Court rulings to justify torture legally, “… some CIA officers were concerned they may need legal justification for the interrogation methods they had begun using when questioning al-Qaida suspects in the wake of the 9/11 attacks.”
Apparently the CIA chose not to reference the integral part of the same ruling that stated that “necessity is an after-the-fact judgment based on a narrow set of considerations … and the defense of necessity does not define a code of primary normative behavior.”
As Justice Barak stated in his 2008 lecture – and has continuously reiterated in his books and articles – in the fight against terrorism, democracies must determine and maintain the proper balance between national security and human rights.
“A democracy must sometimes fight with one hand tied behind its back,“ the 1999 Supreme Court opinion concludes. “Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.
“Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us, and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged.”
Sarabeth Lukin is an American/Israeli journalist who lives in Jaffa.