Rule of law: The Shin Bet’s stillborn revolution?

Despite appointment of external investigator to review alleged abuse of Palestinian detainees, outside observers would likely say changes have fallen short.

By
October 3, 2015 09:38
Prisoners exchange deal

Palestinian prisoners who were released from Israeli prisons as part of a prisoners exchange deal between Israel and Hamas wave from a bus . (photo credit: REUTERS)

How fair are the state’s investigations of detainees’ complaints of torture at the hands of Shin Bet investigators? Have radical changes in the system over the last two years led to actual radical change in investigations, or is any revolution to date stillborn? The short answer is that while the changes to the system have been substantial, decisions on cases are issued faster, and more information is being provided to complainants, many outside observers would likely say the changes have fallen far short, since decisions on cases still take too long and zero full criminal investigations have been opened.

In judging the progress, it could be helpful to look back at a July 2014 Jerusalem Post review of the then hoped-for revolution in the state’s handling of Palestinian detainee complaints against the Shin Bet (Israel Security Agency) for alleged torture or abuse during interrogation.

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The article was titled, “The Woman heading the Shin Bet revolution.” The woman referred to was IDF Col. (res.) Jana Modgavrishvili, who was appointed in June 2013 as the first external investigator of the Shin Bet.

Why was an outside Shin Bet investigator necessary? A little history lesson is in order.

While the Shin Bet is revered by much of the country by its nearly mythical ability to thwart terrorist attacks and bust cells before they carry out their attacks, its historical record in handling detainee torture complaints had been problematic at best.

The first 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 systematic approach was put in place by 1992, with a somewhat independent internal investigator of complaints against the agency.



In 1999, the High Court of Justice prohibited torture in investigations and granted freedom from prosecution only for use of moderate physical pressure to prevent a “ticking bomb” attack in progress.

In 2007, 2010 and 2013, the Justice Ministry and the Second Turkel Commission Report on the legality of Israel’s apparatus for investigating itself determined the Shin Bet’s internal torture investigations were not sufficiently independent and professional – leading to Modgavrishvili taking over.

No one can debate her professionalism and top qualifications, but has Modgavrishvili accomplished a revolution in how the Shin Bet handles detainee torture complaints? An excellent objective indicator focused on by the Turkel Commission, the courts and the Justice Ministry is time – or whether Modgavrishvili has shortened what was nearly unanimously viewed as the excessive time it had been taking investigators to decide cases – with many cases backlogged more than five years.

One year later, the Post reported that sources close to Modgavrishvili were fairly confident they could make substantial progress on addressing a vast backlog in cases by the end of 2014 and could complete addressing all cases by May 2015 – around one year after Modgavrishvili had a staff and office fully assembled.

The High Court itself ordered Modgavrishvili to address all torture complaints dating back to 2011 by the end of 2014.

In another report by the Post in February 2015, little concrete progress was seen.

During operations Brother’s Keeper and Protective Edge in summer 2014, a spike in new complaints of torture, including use of harsher techniques which had not been heard of in recent years, added to the backlog.

If meeting its own and the courts’ expectations of catching up on old cases is the test for whether there has been revolutionary change, the verdict at this point would need to be that any revolution has been stillborn.

A letter by the Public Committee Against Torture in Israel to the High Court on July 7, 2015, obtained by the Post indicated that there were still eight cases that Modgavrishvili had not made a decision about from 2011 or earlier, five from 2012, and 10 from 2013, and that there have been no decisions at all on the 26 cases from 2014 to 2015.

PCATI noted that in Modgavrishvili’s entire tenure, she has only given 14 substantive responses to inquiries about cases and that the current average time to receiving a decision or clarifications about a torture complaint is a staggering 32 months.

While Modgavrishvili could note that she has only been fully operating for 16 of those 32 months, PCATI can note that she has not decided a single new case that was filed during her 16 month tenure. One gets the impression that Modgavrishvili would admit that five years is too long to take to decide a torture complaint case, but would be hesitant to discuss concrete numbers beyond that point, though most outside observers would see one to two years as already on the long end.

In an August 18, 2015, letter to the High Court obtained by the Post, the most recent public report by either side on the status of the cases, Modgavrishvili wrote that when she opened her office, estimates of how quickly it could tackle the backlogged cases was handicapped by not having received all of the old files.

Over time, she said that she and her staff learned of many other backlogged cases which her predecessor had never even touched and that this substantially increased the volume of backlogged cases, making her earlier hopes for progress unrealistic.

Further, Modgavrishvili said waiting for the end of separate but related judicial proceedings in which Palestinians claim their confessions to crimes should be thrown out due to duress or request retrials, also delay her ability to review the same Palestinians complaints against the Shin Bet.

While some amount of delay due to these related proceedings is certainly expected, it is unclear if the related delays are proportionate and a review of that issue on a statistical basis, possibly by the High Court, might better conform expectations regarding those delays from all parties involved.

The Post has learned that as of late September, the Justice Ministry would claim it has made further progress and that only 2 percent of the pre-2013 cases are still open, with all of the 2011 cases closed (though these statistics are still not reflected in any public documents.) Only three cases are left from 2012, which have already been sent to State Attorney Shai Nitzan with recommendations on how to proceed.

Modgavrishvili also noted in her letter that the number of torture complaints in 2014 was four times the number filed in 2012, and that ongoing handling of these complaints diverted further resources from wrapping up the backlogged cases.

Her description of these 2014 cases, other information obtained by the Post and the events surrounding them also appear to further confirm that the Shin Bet, justified or not, heavily increased its use of enhanced interrogation methods (or torture and abuse, as PCATI would define them) against Palestinian detainees in the summer of 2014.

Of the 17 cases from 2014, testimony has not been taken from the complainants in any of the cases, with only two cases, that of K.A.A. and S.K., scheduled for the taking of testimony in October-November.

According to the IDF, K.A.A. and S.K. were both released following convictions and having served their full prison terms. Thus, their release was not because of any special arrangement with the Shin Bet related to dropping their complaints against it for torture.

Yet published decisions regarding S.K. indicate he was only convicted of minor crimes (even as his time in administrative detention could raise the specter of other possible crimes for which he could not be indicted) and sentenced to a mere 42 months in prison.

There were no indications from his conviction that he was involved in the kidnapping or killing of the three Jewish teenagers, whose kidnapping was the alleged justification for much of the enhanced interrogation methods used in summer 2014. Given that S.K. was convicted of only minor crimes, was sentenced to a mere 42 months in prison, and left no indications of being involved in the kidnapping and killing of the three Jewish teenagers which was allegedly the main justification for the summer 2014 enhanced interrogation, it would seem highly surprising that his complaints have not moved forward much faster.

Part of the problem certainly seems to be that Modgavrishvili’s office is understaffed with only four staff members, including herself, with Modgavrishvili being one of only two lawyers.

Pressed, Modgavrishvili would likely admit that a larger staff would help reduce the delay. She implies that she has requested more staff, but she also is known for repeatedly toeing the party line that even if she does not get more staff from the Justice Ministry, her current staff is adequate.

Whatever the reason, as long as Modgavrishvili’s average time for deciding cases is more than two years (PCATI would demand closer to 6-12 months) and with a substantial number of cases that are three or more years old, it will be hard to shake the accusation that even as Modgavrishvili clearly improved the Shin Bet’s response time, her office has still fallen far short.

An even harder knock against claims that there has been a Shin Bet investigations revolution is that even among the numerous cases that have been preliminarily investigated by the Justice Ministry, the record is zero full criminal investigations, let alone indictments.

When Modgavrishvili took over, while she made some commitments with regard to timing, she was clear not to commit to opening a minimum number of criminal investigations.

Opening a minimum number would effectively answer the repeated accusation that no criminal investigation has been opened against the Shin Bet for torture since 2001 – this despite nearly 1,000 complaints.

PCATI director Dr. Ishai Menuchin said it is “more than 1.5 years after [Modgavrishvili’s] appointment... in place of the Shin Bet [internal investigator] and almost nothing has changed. The answers are longer and provide more justifications [for closing cases], but the statistics have not changed [for opening criminal investigations].”

He added, “Close to 1,000 complaints have been filed since 2001 and not even a single criminal investigation has been opened. We only are able to receive [longer] answers regarding the closing of cases, like we received” from Modgavrishvili’s Shin Bet predecessors.”

Pressed on the issue, Modgavrishvili would seem to be sticking to the technical shield of saying every complaint is case specific, and where the evidence demands, she will not hesitate to prosecute, but where the evidence is insufficient she must close the case.

This is a seemingly unbeatable refrain and most prosecutors would tell you that anyone who demands a certain number of prosecutions does not understand the nuances of the law.

But at a certain point, when the number of cases closed reaches numbers like 1,000 over nearly 15 years and the pattern continues for the first 16 months of Modgavrishvili’s reign, that technical answer becomes less comfortable.

Regarding opening investigations, PCATI makes a logical argument for two tracks.

In track one, where the Shin Bet claims that torture complaints are frivolous, Modgavrishvili could vet and even close cases with a mere preliminary review.

In track two, where the Shin Bet admits to using enhanced interrogation methods, but claims the necessity and “ticking bomb” defense (it applied physical pressure to gain immediate information to stop an impending terror attack), a criminal investigation should automatically be opened, even if the case is eventually closed without an indictment because of the necessity defense.

PCATI says that “preliminary reviews,” which is all Modgavrishvili has performed to date, are not only insufficient once the Shin Bet has admitted to applying physical pressure (even with a defense), but they may even represent an attempt to obfuscate and may contradict Israel’s international law obligations for efficient investigations.

Preliminary investigations could be explained as criminal investigations-lite in that they are less comprehensive, can be done more out of the public eye and can allow suspects to continue in their jobs without serious disruptions.

There is no way that the state will agree willingly to this framework, but the High Court could eventually step in and take PCATI’s side, if the long delays continue.

But besides the cases where the Shin Bet admits to applying physical pressure, counterintuitively the state’s softest spot may be cases where the Shin Bet denies it applied physical pressure, because those cases tend to involve less dangerous detainees, often with more minor charges like those of S.K. (as opposed to some torture cases against top Hamas leaders).

The Post did obtain access to some of these specific cases closed by Modgavrishvili’s office.

In February 2015, Modgavrishvili, represented by her deputy, Rachel Matar, closed the complaint of 31-year-old woman N.A.Z., who was arrested in 2009 and filed a complaint in 2012.

N.A.Z. complained of torture and abuse as follows.

She said her arrest by the IDF included brutal physical force, curses, threats and screaming, at the Kishon detention center where she was questioned 15 times she was handcuffed with her hands behind her back in a painful manner causing back pains, when she asked to see a doctor for the back pain her requests were refused, the air conditioning was turned extremely low to make her feel freezing, the interrogators threatened her and her family, that a Shin Bet interrogator told a police interrogator “we brought you a woman, you like women,” that she was given a cup to drink from with pictures of naked women on it and that the Israel Prisons Service held her in inhumane conditions.

Modgavrishvili interviewed N.A.Z on June 9, 2014 and closed the case almost eight months later, either finding that N.A.Z. had withdrawn some of the allegations, such as being handcuffed in a painful manner during her interrogations.

She also wrote that she found evidence to contradict N.A.Z.’s claims, such as the Shin bet investigator “Eldad” rejecting the claims, or more objective evidence, such as time records indicating that N.A.Z. was only interrogated twice – on August 19 and 25, 2009.

In July 2015, Modgavrishvili closed the complaint of Y.Y.N.J., who was arrested in March 2011 and filed a complaint in July 2011.

Y.Y.N.J., 20, said that his Shin Bet interrogator “Stephen” yelled at him, threatened to destroy his family’s house, punched him, and told him that at his next interrogation stop they would rip open his bowels.

He claimed a soldier aimed his gun at him, placing the gun’s tracer light on his body. He said he was arrested with abusive physical force, was held outside in extremely cold conditions for five hours, his request to use the bathroom was refused, he was handcuffed to his chair with his back in a painful position, causing him back pain, and that he was held in inhumane conditions.

Modgavrishvili interviewed Y.Y.N.J. on April 8, 2014, and closed the case almost 15 months later, finding that Y.Y.N.J. had withdrawn some of the allegations, such as being handcuffed in a painful manner during his interrogations.

She also found evidence to contradict Y.Y.N.J.’s claims, including the Shin Bet investigator “Stephen” rejecting the claims, or more objective evidence such as time records indicating that Y.Y.N.J. was interrogated on March 16, 2011, for nearly three-and-a-half hours during the time he claimed to have been out in the cold for five hours.

All of the above explanations do not end the questions.

For one, the Shin Bet’s initial questioning broke protocol, as Y.Y.N.J. was questioned at his house in the middle of the night, despite being a minor, where protocol is not to do interrogations after a certain hour, and nearly all interrogations are supposed to be at an interrogation center where everything can be properly recorded.

Modgavrishvili gives a fair explanation for the Shin Bet’s departure from protocol – that it was suspected at the time that Y.Y.N.J knew the location of the knife used to murder the Fogel family of the infamous Itamar massacre.

But giving that explanation would make more sense in the context of opening a full criminal investigation and explaining why an indictment would not be filed.

That is not to say that Modgavrishvili would have filed an indictment or obtained a conviction, but merely opening a full criminal investigation does not require an indictment, it would just raises the stakes, tactics and pressure that a prosecutor like Modgavrishvili could put on a Shin Bet investigator suspected of torture or misconduct. Part of Modgavrishvili’s acceptance of the Shin Bet’s rejection of Y.Y.N.J.’s claim that he was interrogated while handcuffed was also based on him being a minor and smaller. But it could be problematic to depart from protocols for minors in the timing and place of interrogating Y.Y.N.J. (where doing so aided the Shin Bet’s investigation) only to later claim that Y.Y.N.J., being a minor, was airtight proof that protocol was not breached in another area (where this would shield the Shin Bet from complaints).

This is not enough to indict or convict, but it is surprising that these issues were not criminally investigated fully, especially in this case where Modgavrishvili pretty clearly implies that she reopened the investigation into the case because a prior internal Shin Bet investigator, D.E., had bungled the investigation and failed to even interview Y.Y.N.J.

Another common problematic theme is that Modgavrishvili avoids opining on complaints against the IDF and the Prisons Service on the grounds that she is vested with authority to investigate only the Shin Bet.

This is a solid legal argument, but it makes it practically impossible for a detainee to follow up on complaints if he has to dialogue separately with three relatively closed institutions.

All of this points to the trend that while Modgavrishvili is comfortable critiquing the Shin Bet for violating protocol and pressing it to “learn lessons” and “refresh” its protocol in the future and to provide more comprehensive and professional explanations for closing cases without criminal investigations, she is less comfortable with ever actually opening a full criminal investigation.

Her hesitance is not beyond understanding. Though many of the questions she closed without opening a full criminal investigation typically would be part of a criminal investigation, one could argue that opening a full criminal investigation into a Shin Bet investigator should face a higher standard, as with public officials, because the consequences are greater than usual.

Israeli society does not want the Shin Bet to fail to stop terror attacks because its investigators were afraid to press too hard lest they be criminally investigated – much starker consequences than deciding whether to criminally investigate police violations, which happens frequently in this country.

But when nearly 1,000 complaints since 2001 go without a single full investigation, and Modgavrishvili, after 16 months (or longer depending on how one counts), continues that record, faith in her having fundamentally altered the investigations could be low.

Might Modgavrishvili be further pushed by the court to open more criminal investigations? In July 2015, the High Court, in an unusually blunt exchange and directive, though not an official court order, demanded that the state give broader explanations of its justifications for the Shin Bet admitting to having used enhanced interrogation techniques against A.A.G. (with PCATI listing the “techniques” as harsh beatings, being placed in the “banana” position which painfully pressures the back and other body parts, pressure on his fingers, and many others).

Modgavrishvili has apparently given a paraphrase of the justifications to PCATI, but neither the Justice Ministry nor PCATI provided the paraphrase to the Post, despite requests for a copy.

The state is due in November to respond to a petition to explain the justifications of another case where an IDF Judea military court has already ruled that the IDF used enhanced interrogation methods against F.T.

The court has still not issued any earth-shattering rulings since Modgavrishvili took over, but some of the above cases may give it that opportunity in the coming months.

It is still unclear how many times current Supreme Court President Miriam Naor will challenge the security establishment, with few examples in her tenure so far, but a Supreme Court history of pushing the Shin Bet toward higher standards.

In the broadest strokes, while Modgavrishvili has moved Shin Bet investigations forward in transparency and shortened the backlog of cases some, absent a new major court ruling, a significant backlog is likely to continue, and it is unlikely that there will be any full criminal investigations.


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