As talk of UN investigations, International Criminal Court trials and complaints about the sufficiency of Israel's investigations of complaints against it has spiked during the current Gaza war, unprecedented scrutiny is expected to return to all aspects of Israel's investigations of itself, including the Shin Bet (Israel Security Agency.)
The Shin Bet (Israel Security Agency) has at least two polar opposite identities.
It is first the brilliant and invincible savior of Israelis from terror attacks. During the current Gaza war, it has also worked hand and hand with the IDF on a vast array of offensive and defensive operations.
It also strikes terror into Palestinians being interrogated for security crimes, many of whom complain of torture while being questioned (a new wave of complaints can be expected in the near future, post-war).
Therefore, a monumental – yet quiet – revolution began in the Shin Bet in June 2013, with the first-ever appointment of an independent prosecutor whose sole focus is the organization. Working from the Justice Ministry, former Military Advocate-General’s Office head prosecutor Col. (res.) Jana Modgavrishvili is tasked with pursuing complaints against the Shin Bet.
THE ORGANIZATION is not immune to change. Shin Bet reform was initiated following the Bus 300 and Nafsu scandals of 1986-1987, with Supreme Court justice Moshe Landau revealing that many Shin Bet agents were knowingly lying to courts, denying using torture to interrogate suspects and prevaricating where they deemed it necessary for national security.
A new system was put in place by 1992, with a somewhat independent internal investigator of complaints against the agency.
The next big change came in 1999, when the High Court of Justice prohibited torture in investigations and only granted freedom from prosecution for use of moderate physical pressure to prevent a “ticking bomb” attack in progress.
In 2007 and 2010, the Justice Ministry made initial decisions that the system was still not independent enough, and that the investigator lacked sufficient ability to properly question talented Shin Bet interrogators in violations. That reform was caught up in bureaucracy for years, however.
That is, until February 2013’s Second Turkel Commission Report on the legality of Israel’s apparatus for investigating itself, with Modgavrishvili finally appointed four months after the report was published.
And yet, while critics recognize that there have been changes and compliment Modgavrishvili for greater openness and responsiveness, the current revolution may still fall far short of satisfying the Shin Bet’s critics.
On the one hand, the new department is infinitely more transparent than that of the prior internal Shin Bet investigator, who was completely unseen and subsumed within the Shin Bet.
On the other, the department is still far more secretive than typical government departments, to date without any regular media contact and handling mostly highly classified Shin Bet materials.
THE IMPRESSION is that Modgavrishvili will not be a radical change from her predecessor, in opening full criminal investigations or filing indictments. Sources close to her say she would likely be non-ideological on decisions about whether to file indictments, looking at each situation on a case specific basis: where the evidence demands it, she would be obligated to file just as she would obligated not to file if the evidence was insufficient. Framing the issue as a purely technical-legal issue, devoid of other considerations can then also become a convenient shield from statistical and other criticisms.
Critics of the state’s investigation of the Shin Bet note that despite more than 800 complaints since 2001, not a single, full criminal investigation has been opened.
Therefore, it is important to note whether the new processes properly address the Second Turkel Report’s criticisms of the investigative process.
One focus Modgavrishvili is likely to have will be to “fix,” or improve, less-than-ideal procedures.
For example, while the IDF rarely files indictments against soldiers relating to conduct complaints against Palestinians, it frequently alters its rules of engagement following a tragic incident or outcome viewed as problematic, criticizing the rules in place and not the individual.
Therefore, advising the Shin Bet to cease certain interrogation tactics or alter tactics could help it avoid perceived legal or public relations backlash. According to Modgavrishvili’s line of thinking, the emphasis should be on the process – transparency of investigations – instead of on emphasizing results, such as the number of indictments.
The fact is that the system is striving for comprehensive independent investigations, aiming to improve criticism of the prior investigative apparatus. Addressing “comprehensiveness” and “independence” are keywords, as they were some of the major criticisms of the Second Turkel Report.
However, having engaged various sources close to the report, it is unclear whether such an approach will assuage criticism.
Modgavrishvili herself would likely admit to having some advantages over the prior investigators of Shin Bet interrogators – as she is a senior lawyer, with an approach that can lead to questions in an investigation that an interrogator might miss.
YET, MODGAVRISHVILI’S position is paradoxical.
While she spent a career – at least symbolically – pushing the Shin Bet to get information out of those they interrogate in order to convict them, she is now investigating them for going too far in obtaining that information.
So how much change has there been on the ground? The Public Committee Against Torture in Israel (PCATI) said that 18 out of 22 appeals of decisions not to open an investigation into complaints of torture have been sitting on Attorney-General Yehuda Weinstein’s desk for an unacceptable time period.
The NGO said 12 of the appeals have been awaiting a decision for 20 months, and another three for 13 to 18 months – whereas it said the attorney-general is mandated to decide within six months.
In the near future, Modgavrishvili’s department is supposed to add three additional investigators, but until then, she could be stuck with as many as 90 cases at a time. The impression is that Modgavrishvili would like to be in a different place as soon as possible in addressing the backlog of complaints, with substantial progress expected by the end of 2014 and all of the much older cases dealt with by May 2015 (one year after being fully operational).
At a hearing on July 9, the High Court gave Modgavrishvili until the end of 2014 to address complaints of torture dating back to 2011. Yet newer cases will likely be dealt with more slowly than during a routine period.
Sources close to Modgavrishvili added that regarding four out of 29 cases in which her office has already met with the complainants, a decision on whether to open a criminal investigation may only take a few more months.
ANOTHER HOT issue that Modgavrishvili may need to weigh in on behind the scenes is whether the Shin Bet should be obligated to videotape its interrogations, as the police are mostly mandated to do.
Again, the Turkel Report II highly recommended videotaping interrogations to deter misconduct, to show the state’s transparency, save it from trumpedup allegations and have a clear record with which to prosecute where necessary.
Here, the Second Turkel Report found a powerful and influential ally in Yuval Diskin, head of the Shin Bet from 2005 to 2011, who said that even if there were drawbacks, all interrogations should be videotaped.
Yet even if Shin Bet interrogations are not taped, those interrogated get to give testimony afterward to police, which is videotaped and can be used as official evidence (since classified evidence cannot be used to prove a crime at trial).
Sources close to Modgavrishvili might also note that the state appointed a new commission after the Second Turkel Report, run by Joseph Ciechanover, who still has not made an official recommendation on the issue.
This issue is not unique to Israel. In a still unresolved controversy, during the US War on Terror after 9/11, alleged tapes of interrogators torturing terrorists were ordered destroyed by the head of the interrogations program.
PCATI SAYS it has some flagship cases that prove torture occurred; specific ones include declarations by military courts that there was torture (though the courts made the declarations in the context of other issues, since they were not final binding judgments, the issue of torture was debatable).
While the Shin Bet does not comment on interrogations, the state has openly admitted in great detail before the High Court in a hearing – reported on exclusively by the Jerusalem Post
on March 3, 2014 – that the Shin Bet does use moderate physical pressure (PCATI disagrees with the State about where to draw the torture line, with the Shin Bet having moved away from "harsher" tactics to tactics like sleep deprivation) in a small number of cases to stop ticking bombs.
In one case, a complaint was filed against the Shin Bet for torture on February 23, 2013, based, in part, on an IDF Judea Military Court decision which confirmed that the Shin Bet had used torture in the interrogation.
This would appear to be an unstoppable case for PCATI against the Shin Bet interrogators, and it may still be, but the devil is in the details.
One version of events is that the decision actually related to the trial against the Palestinian for security crimes, not his counter-complaint against the Shin Bet for torturing him.
Though the NGO says that the Judea Court decision was black and white, another view would say that the Judea Court’s first attempt to force the IDF to give the Palestinian complainant classified evidence against him was struck down by the IDF West Bank Appeals Court.
After its decision on forcing the IDF to reveal classified material was reversed, the Judea Court relented, but added into its opinion that it believed that the Palestinian had been tortured.
Since the court’s comment about the torture was not the main issue before it and was not fully investigated, it is unclear if its comment proves the Palestinian was tortured, though it is still powerful ammunition to make that claim before a later court.
IN ANOTHER flagship PCATI case, a Palestinian filed a complaint on April 2, 2013 for being tortured by the Shin Bet; a decision by a Judea military court declared that interrogation “methods were used against him which cannot be used except in the case” of a ticking bomb. PCATI insists that where a court has essentially declared that torture was used, the matter must be criminally investigated and promptly, to avoid evidence going stale – and this with a case that is already more than 15 months old. PCATI would argue that such cases embody a purposeful and systematic approach of delay – to kill cases until evidence is stale – in which investigating subsequently becomes impossible, leading to solid cases being closed.
But sources close to Modgavrishvili have indicated a different version of why there have been such extensive delay claims, and that a parallel case regarding the Palestinian complainant is before another court; this supports the argument that cases should be evaluated on an individual basis.
The proceeding before the other court includes a review of alleged confessions made by the Palestinian and whether they were validly obtained, or were obtained under duress, torture or some other illegal means. A finding that they were obtained illegally will impact whether the Palestinian is found guilty or innocent of certain crimes alleged against him, but separately could also directly impact the status of his torture complaint.
In this version, moving forward with the torture complaint before the mini-trial on how the confessions were obtained would be premature.
On the flipside, some might question whether a more aggressive Shin Bet investigator could limit the agency from being aggressive in defending Israel’s national security.
WILL SHIN BET investigators sometimes fail to get key lifesaving information out of a terrorist, worrying that maybe an investigation will decide that the terrorist and their information did not fully live up to the ticking bomb definition? For example, during Operation Brother’s Keeper in which the Shin Bet questioned arrested suspects in the kidnapping of the three yeshiva boys, a senior army source told multiple media outlets that the agency was using moderate physical pressure on some of those being interrogated. (Neither the Shin Bet nor the IDF officially confirmed or denied the statement.) Would Modgavrishvili view such pressure as justified to solve a kidnapping, especially where it appears the Shin Bet may have known that some or all of the boys were already dead, and that the search was possibly focused on finding bodies? Some critics even went so far as to say that arrests and rough interrogations were implemented under the guise of solving the kidnapping, to put pressure on Hamas and its unity deal with Fatah.
To this, Modgavrishvili would likely say that her bedrock principles would be that any interrogator who acts out of necessity, or uses moderate physical pressure to obtain lifesaving information to stop a ticking bomb attack, has no need to worry.
To determine whether the interrogator went beyond necessity, Modgavrishvili would likely review the person’s state of mind. Is the interrogator sure the information being sought would help the case? If yes, the Shin Bet agent is not only clean, but doing his job.
There needs to be a logical basis that the information requiring extraction is pertinent to solving the kidnappings, to justify applying physical pressure.
REGARDING HER view of using moderate physical pressure to solve kidnappings, it is worth noting that as an IDF prosecutor, Modgavrishivili in the mid 1990s prosecuted the two surviving kidnappers of Nahshon Waxman.
Perhaps more than anything else, that part of her past, along with that she has had to recuse herself from involvement in some cases (such as the first flagship case mentioned above) where she had been the prosecutor, brings home that she is at the same time a true outsider from the Shin Bet, but also a long-time insider. Which part of her identity she chooses to follow and how she strikes that balance, including whether there are indictments and how she explains closing cases, may determine whether the increased criticism directed at the Shin Bet in recent years and post-war finally subsides.