Rules of interrogation

At the beginning of the month, the Turkel Commission, chaired by former justice Jacob Turkel, issued its second report on the IDF raid on the Turkish aid ship to Gaza, the Mavi Marmara.

Going far beyond the confines of that unfortunate incident, the 1,000-page report is an innovative “road map” for grappling with the legal and ethical dilemmas arising from Israel’s ongoing war against terrorism, dilemmas not properly treated in a hopelessly outdated international law corpus.

One of the suggestions – Recommendation 15 in the report – states that “there should be a full video recording of all Shin Bet interrogations, according to guidelines set by the attorney-general in coordination with the Shin Bet.”

This recommendation and others carry significant weight, in part because top international law experts from Israel and abroad, including Tim McCormack, a special adviser on international humanitarian law to the prosecutor of the International Criminal Court in The Hague, and Nobel Prize laureate David Trimble, based their report on real-life – and highly controversial – cases connected with the IDF, the Shin Bet and other security bodies.

Yuval Diskin, who was head of the Shin Bet when he appeared before the Turkel Commission in 2011, voiced support for videotaping interrogations.

“Visual documentation of Shin Bet interrogations should be positively considered,” said Diskin about a month before present Shin Bet head Yoram Cohen, who reportedly opposes videotaping interrogations, replaced him.

“Even if not everyone always likes it, I think it would be the right thing to do.”

Just three days after the Turkel Commission published its recommendations however, the High Court of Justice struck down a petition to compel the Shin Bet to record interrogations, including those of suspects deemed by the state to be a security risk. High Court Justices Asher D.

Grunis, Hanan Meltzer and Noam Sohlberg, wary of a direct confrontation with the legislative branch and noting that a new Knesset that had just been voted in might very well reassess interrogation policy, decided to refrain for the time being from striking down the legality of the status quo.

Today, the practice of not documenting interrogations is based on an emergency directive first passed in 2003 in the wake of the second intifada that has been renewed repeatedly, most recently in 2012 and remains in force until 2015.

In defending the emergency directive, the state argued that it was temporary and that the Justice and Defense ministries planned to more narrowly define in law precisely what constitutes a “security offense” that justifies abrogating the obligation to document interrogations.

The state’s legal representatives also said that there was a plan to compare Israeli procedures to other countries.

Public debate about the lack of oversight of our covert intelligence operations has been sparked by the “Prisoner X” Affair involving Australian immigrant and alleged Mossad operative Ben Zygier, who reportedly committed suicide in a high-security Israeli prison in 2010.

Many of us are rightly disturbed by the fact that in the Israel of 2013, a man who made aliya can be arrested, imprisoned, interrogated, die in prison and simply disappear without the wider public knowing anything about it.

At the same time, our obligation as a democracy to maintain the rights of suspects during imprisonment and interrogation must be balanced with security considerations.

Shin Bet commanders, excluding Diskin, have traditionally opposed videotaping interrogations. They have claimed that the tapes might fall into the wrong hands and reveal interrogation techniques and sensitive information extracted from detainees.

Still, the potential hazards arising from videotaping interrogations do not appear to outweigh the ethical benefits of adopting the Turkel Commission’s recommendations.

Videotapes are no guarantee against abuses. The CIA’s decision in November 2005 to destroy dozens of videotapes documenting CIA agents using enhanced interrogations techniques such as water boarding to extract information from al-Qaeda suspects at a “black site” prison in Thailand is evidence of this.

However, videotaping interrogations would provide a little more oversight and help ensure that the Shin Bet does not lose sight of basic ethical principles in the course of duty. The 19th Knesset should pass legislation to that effect before the High Court is petitioned again and finds it hard to rule against the Turkel Commission’s recommendations.