Analysis: What does ‘ticking bomb’ mean when it comes to Shin Bet interrogations?

Has the Shin Bet used pressure when a threat existed, but was general or far off in the future, or to solve a past crime, but not to prevent a future crime?

By YONAH JEREMY BOB
Israeli security forces detain a Palestinian near the West Bank town of Abu Dis (photo credit: REUTERS)
Israeli security forces detain a Palestinian near the West Bank town of Abu Dis
(photo credit: REUTERS)
Tick tock, tick tock.
That sound or concept should get any detainee nervous as they may be part of a “ticking bomb” scenario permitting the Shin Bet (Israel Security Agency) to give them much rougher treatment.
Why? In 1999, the High Court of Justice prohibited the Shin Bet from torturing detainees.
However, it left open the door to using “moderate physical pressure” on detainees if there was a serious, concrete and immediate danger to life that the Shin Bet thought it could prevent – hence was born the “ticking bomb” exception (though the words “ticking bomb” do not appear in the ruling).
At various times since then, human rights groups, usually on behalf of Palestinian detainees suspected of being terrorists, but more recently also on behalf of the small group of Jewish detainees arrested as suspects in the infamous Duma terrorist attack, have questioned whether the Shin Bet has used moderate physical pressure beyond the narrow exception created by the High Court.
Has the Shin Bet used pressure when a threat existed, but was general or far off in the future, or to solve a past crime, but not to prevent a future crime? The views on the issue could not be more polar opposite.
On one side are officials like Yisrael Hasson, former deputy director of the Shin Bet and Knesset member.
Hasson rejects any notion of the Shin Bet crossing any lines.
He says that when the agency applies pressure, the threat is usually measured in days or less, truly immediate, and that it is a concrete and foreseeable threat.
Supporters of the Jewish detainees accuse the Shin Bet currently of using pressure not to stop them from future dangerous crimes, but to solve the Duma crime or other crimes in the past.
They say that regardless of whether solving those crimes is important, that it does not fit the High Court’s narrow exception for applying pressure only in ticking bomb scenarios that are future-oriented.
Hasson angrily said these accusers “are liars.”
He doubled-down, saying that in the current interrogations of Jewish detainees and with other detainees the Shin Bet only applies pressure when there is a “concrete danger” and it meets the definition of an imperative “necessity.”
He added that the courts are involved in approving extensions of detention, including being briefed on certain of the pressure tactics being used, and that the courts would not continue to approve these extensions if they were not absolutely necessary to save lives.
Sarit Michaeli of B’Tselem represents the other side of the coin.
First, Michaeli made it clear that she thinks the High Court’s exception itself is against international law, however interpreted.
She said that any supposed “moderate physical pressure” is just another name for torture or other inhuman and degrading treatment that virtually no other democratic countries employ.
Next, she said that “the ticking bomb is virtually unheard of” in real life – meaning the High Court created an extremely narrow and almost theoretical exception that the Shin Bet then broadened into a systematic basis for using pressure in a large number of security cases.
Michaeli said it is hard to imagine that every time the agency has used pressure the detainee knew exactly where a bomb was about to go off.
Rather, Michaeli said that the Shin Bet presents to the public that it is “trying to solve serious crimes” like the murder of the three Jewish teenagers in June 2014 or the murder of a Palestinian family in Duma in August, “in a way that makes torture seem reasonable.”
The B’Tselem spokeswoman suggested that the Shin Bet might also communicate that solving these heinous crimes could improve a “deteriorating security situation on the West Bank.”
But she said that while this was important, it also did not fit the High Court’s ticking bomb exception.
Others argued that the “immediacy” principle of the ticking bomb exception itself is more about how serious the danger is and that it is expected to remain concrete, and less a clock demanding a planned attack in the coming hours or days.
According to this view, a ticking bomb could even be weeks away.
The principle behind it is that if the Shin Bet is confident that terrorists, Jewish or Arab, are committed to and concretely planning attacks, then the agency does not need to wait until the last second to stop them – including if it may need to use pressure to uncover the full plot and participants.
Some add another observation.
They say that there should be an exception for using pressure, but that the guidelines from the High Court should be more concrete and the Knesset and the prime minister should be more openly and directly involved.
According to this view, part of the criticism of the Shin Bet arises from the vagueness of the High Court’s constructed exception.
Further, this view argues it is problematic that the decision of when to use pressure is so focused on the Shin Bet, with a guest appearance from the attorney-general – and even that only after the pressure has been applied, leaving the security agency with great uncertainty.
It is unlikely that all of the views on using pressure in detainee interrogations can be resolved given the different fundamental worldviews on the issue.
But it is possible that the High Court, with a new and updated ruling, could clarify its ticking bomb exception so that there are fewer divergent views about that concept, and that it could also press for greater executive and legislative branch involvement in overseeing where the line between collective security and an individual detainee’s rights is drawn.