In a recent NY Times piece ("In Adopting Harsh Tactics, No Look at Past Use", April 21), a former advisor to Secretary of State Condoleezza Rice in 2005 and 2006, Mr. Philip D. Zelikow, is thus quoted:
"Competent staff work could have quickly canvassed relevant history, insights from the best law enforcement and military interrogators, and lessons from the painful British and Israeli experience."
Indeed, there are significant lessons to be learned from Israel's torture experience, or rather from the experience of detainees subject to security interrogations by Israel's General Security Service (GSS). But what, exactly, are these "painful" lessons? And "painful" to who, exactly?
Reading some other recent comments in the Times, this time by Justice Ginsburg ("Ginsburg Shares Views on Influence of Foreign Law on Her Court, and Vice Versa", April 11), one might conclude that Israel has resolved to completely reject torture. Alas, the truth is, quite painfully, very different.
In her remarks, Justice Ginsburg discussed a 1999 decision by the Israeli Supreme Court concerning the use of torture "to obtain information from people suspected of terrorism." That decision was given in response to an appeal submitted by three Israeli human rights groups: The Public Committee Against Torture in Israel (PCATI), the Association for Civil Rights in Israel (ACRI) and the Center for the Defence of the Individual (HaMoked).
Justice Ginsburg is thus quoted in the Times:
"The police [the intention must have been to the GSS and not the police] think that a suspect they have apprehended knows where and when a bomb is going to go off. Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: 'Torture? Never.' "
But Aharon Barak's High Court of Justice (HCJ) never said "never" to torture. While the Court did rule that "Neither the government nor the heads of security services possess the authority to establish directives and bestow authorization regarding the use of liberty infringing physical means during the interrogation of suspects suspected of hostile terrorist activities," the judges didn't rule out a narrow opening for a defense of necessity. In extraordinary circumstances, interrogators that will independently decide to break the law may later on, when brought to justice, try and use "the necessity defense": that they have acted out of extreme necessity in order to save innocent lives.
That narrow opening has proved to be not so narrow. For the GSS, necessity became routine. What was perhaps envisioned as independent action in extraordinary circumstances, to be later defended in a court of law, turned into the granting of a-priori authorizations to harm detainees by the interrogator's supervisor or by the head of the GSS, according to established procedures known to interrogators, prosecutors and judges as "the necessity interrogation procedure". An unknown number of suspects have been thus interrogated since 1999.
The world-renowned Israeli "torture ruling" was anything but an end to torture.
So five months ago, in November 2008, the three Israeli human rights groups went back to court, and filed a contempt of court motion to the High Court of Justice against the government of Israel and the GSS. The motion is currently pending in the HCJ.
So what is the real lesson from torture in Israel?
The lesson is well summarized in Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment:
"No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture."
"Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
The 1999 decision by Israel's HCJ was not an effective judicial measure. The policies that followed, by Israel's Attorney General and the GSS, were not effective administrative measures. On the contrary, they were effective in establishing extreme interrogation techniques as routine and legitimate.
With torture, a democracy cannot allow itself to make exceptions. The powers at will quickly find ways to turn the exceptional into the ordinary. As ACRI's Chief Legal Counsel attorney Dan Yakir puts it: "If you allow for what should never be allowed to happen to occur even once, it does not stop there." It happens a second time, and a third. And then dozens of times, a hundred. It goes on, to happen 266 times. And so on.
This is what happened in Israel.
It is time for Israel's HCJ to embrace the rightful decision that Justice Ginsburg wrongfully thought was issued a decade ago: torture? Never. In Justice Ginsburg's words, we will otherwise be giving "our enemies no greater victory than to come to look like that enemy in our disregard for human dignity."