Did Israel’s Shin Bet finally cross the line and torture a suspect under interrogation? And if it did, how would we go about deciding which methods were torture and whether there was some immediate security risk that might have justified harsher interrogation methods of some kind? After 18 years, the High Court of Justice is expected to give us answers – some observers say likely as early as next week.
In one of the most dramatic decisions of its history, the High Court 18 years ago, led by then-president Aharon Barak, declared it illegal for the Shin Bet (Israel Security Agency) to use torture in its interrogations.
Without setting clear definitions, the court also effectively endorsed the Shin Bet being able to use “moderate physical pressure” that was less than torture in cases of a “ticking bomb,” or where there was a chance to uncover and stop an imminent attack.
While, over the years, the High Court has added individual specific limits or defined individual interrogation methods that should not be used, broader definitions have never been set, and no Shin Bet agent has ever been convicted by any court. Not only that, but after over 1,000 complaints alleging Shin Bet torture since 1999, not a single Shin Bet agent has been criminally investigated or indicted.
Most of the time, cases go nowhere, because the Shin Bet and the government deny that any harsh interrogation methods were used, let alone torture. Usually, their word tends to trump allegations by a terrorist suspect about how he was treated.
Enter Assad Abu Gosh.
What made the Abu Gosh case unusual, certainly since July 2015, was that the Shin Bet and the government admitted publicly in the context of a High Court petition that enhanced interrogation was used, as reported first by The Jerusalem Post
at the time.
Abu Gosh was arrested on September 3, 2007, and sent to the Shin Bet facility in Petah Tikva.
He was convicted in a plea bargain in 2009 for manufacturing a bomb, possessing weapons and membership in an illegal organization, and sentenced to five years in prison.
But the key part of his story is that he was interrogated by the Shin Bet from September 3, 2007, until October 24, 2007, including enhanced interrogation.
During that time, he revealed the location of an explosive vest he had made for other members of his terrorist cell, with which to perpetrate an attack set for Yom Kippur.
The Public Committee Against Torture, the NGO at the forefront of taking the Shin Bet to court over torture allegations, said that Abu Ghosh received harsh beatings, was placed in the “banana” position, which painfully pressures the back and other body parts, and was pressured on his fingers.
Despite these allegations, while Abu Gosh’s case has received a nonpublic “initial review,” the state prosecution refused to criminally investigate.
PCATI then filed the High Court petition.
Top legal officials have told the Post
, and state lawyers later confirmed, that the information the Shin Bet received saved lives from an impending terrorist attack.
Standardly, the Shin Bet dismisses most complaints about torture during interrogation as false and motivated by suspects’ hatred of their interrogators or by a desire to create an excuse for them with Palestinian society for why they incriminated other Palestinians.
The Shin Bet’s public admission to using enhanced interrogation on Abu Gosh means these standard defenses are out from the start.
Suddenly, the Shin Bet, the state prosecution and the courts must wrestle with the thorny questions of defining the difference between permitted moderate physical pressure and prohibited torture; and between a “ticking bomb,” which justifies pressure, versus a precrime situation, which does not.
All of this may come to the fore as soon as next week, when Supreme Court President Miriam Naor steps down.
Technically, the High Court and Naor could wait until three months after her retirement date to decide whether the Shin Bet tortured or used enhanced interrogation on Abu Gosh and whether it was necessary, to stop a “ticking bomb.” But lawyers involved are predicting an imminent decision around her October 26 retirement date.
A climactic decision also seems likely after an extraordinary hearing before Naor and High Court justices Uri Shoham and Hanan Melcer on September 22, being reported on only now.
At earlier stages of the High Court petition, the state had defended the lack of a full criminal investigation, contending that the necessity defense of stopping a “ticking bomb” applied, justifying the use of enhanced interrogation.
In fact, much of the case has revolved around procedural questions about when the state prosecution must move from a quiet, nonpublic, initial review of allegations against Shin Bet interrogators to a full public criminal investigation. In some ways, PCATI was using the case as a test case to try to press for more criminal investigations and fewer ends to cases after mere initial reviews.
PCATI has said that as soon as the state confirms that enhanced interrogation was used, a full public criminal investigation of Shin Bet interrogators is required, even if the state believes a necessity defense is likely to apply.
In contrast, the state has argued that if a case will be dead in the water because of a necessity defense, a nonpublic initial review is sufficient.
These same questions have been debated endlessly regarding whether the state prosecution takes too long with initial reviews of allegations against ministers and moves to slowly to criminally investigate.
Such questions are important, especially after the February 2013 quasi-governmental Turkel Commission Report II led the state to move the office probing allegations against the Shin Bet from being an in-house Shin Bet operation to being run by the Justice Ministry.
We are now about three-and-a-half years after the new Justice Ministry unit led by retired IDF Col. Jana Modgavrishvili took over these cases.
While she gets high compliments for increasing the probes’ thoroughness, PCATI still finds it problematic that even she has not requested any full criminal probes, including on Abu Gosh.
But as of September 22, initial review versus full criminal case, important though it is, is clearly no longer the main question. The state seems to have sidestepped pressure from Naor regarding that issue by having Modgavrishvili undertake an extra-thorough initial review.
With that issue minimized, on September 22 the state fundamentally altered its position and the playing field. Suddenly, it challenged the idea that it would even need the necessity defense in the Abu Gosh case, declaring that whatever enhanced interrogation methods were used, they fell far short of anything that might even need that defense.
Critically, the state said that any harsher interrogation methods used on Abu Ghosh fell short of the international law definition of torture as including “severe pain and suffering.”
In the same breath and to show it would investigate Shin Bet agents in a theoretical worse case where there was torture, the state took the unusual step of affirming that some torture methods could not even be used to stop a “ticking bomb.”
This will force the court to decide multiple landmark issues. It will need to decide whether it will stand by the attorney-general’s interpretation of illegal torture and legal moderate pressure or overrule him. The reasoning in answering this issue will also be crucial.
If the court affirms the attorney-general’s view that pressure on Abu Gosh was not torture, PCATI and other critics will likely accuse the court of complicity, because of the strength of Abu Gosh’s allegations.
Conversely, a ruling against the state prosecution would be viewed not only as affirming the strength of Abu Gosh’s case but also as disapproval of recent attorney- generals’ choosing not to criminally investigate a single one of the 1,000 complaints against the Shin Bet since 2000. It might also be viewed as declaring the new Justice Ministry office probing complaints against the Shin Bet as having not succeeded.
If the court goes this way, it would signal a major expansion of its policing of the attorney-general and the Shin Bet’s interrogations.
In contrast, the extraordinary tone and openness of the justices on September 22 seemed to suggest that the Shin Bet and Justice Ministry need not worry.
Regarding the above fateful questions, Shoham asked PCATI skeptically about whether they really thought it was reasonable to overrule not only the current attorney-general but also the last two before him, who also thought Abu Gosh was not tortured.
This was a strange question, because that is exactly what the court did in 1999. Ironically, current chief state attorney Shai Nitzan was the young legal adviser who tried to convince the court not to issue its eventual 1999 ruling prohibiting torture.
Mainly, Shoham’s question may indicate how far the court has shifted since 1999 in becoming more reluctant, on broad philosophical grounds, to rule against the state on security issues. The court now mainly limits itself to narrow grounds, where it says the state failed to enforce its own laws and procedures.
In this reading, Naor pushed the state around only when it had thinly reviewed Abu Gosh’s allegations.
But once Modgavrishvili got involved, she and the other justices believed the main technical issue with which they might question the Shin Bet had been removed.
Shoham also seemed to lecture PCATI for accepting at face value the extent of the allegations against Shin Bet agents by suspects and convicts like Abu Gosh – though, again, in Abu Gosh’s case the Shin Bet did not deny it used harsher interrogation tactics, only that they fell short of torture.
Melcer seemed to take the state’s side on whether the Abu Gosh file met the threshold for being considered a “ticking bomb” – based on a classified Shin Bet report, he said that it did.
This returns to the accusations of critics on the Right and the Left who argue that the Shin Bet has made the definition of “ticking bomb” and “imminent” far too flexible, expanding it from hours or a couple of days to weeks or more.
Responding, the state has argued that the “immediacy” principle of the “ticking bomb” exception itself is more about the danger being serious and concrete, and less a clock demanding a planned attack in the coming hours or days.
In other words, the Shin Bet does not need to know whether the Jewish target’s name is “Yossi” living in Jerusalem and set for Monday, or “Yosef” living in Tel Aviv, or whether the Arab target is “Muhammad” or “Mahmoud” set for next week – only that the danger is real and likely to happen soon if not actively prevented.
The implications of this debate are huge for what the Shin Bet can do in its interrogations, and the court seemed to lean in the state’s direction.
Melcer also seemed to push the envelope on allowing harsh interrogation methods. In a breathtaking line, he argued that the frog position, which pressures the back and other body parts, might not be severely painful for an athletic person. True or not, it is a line one would expect to hear uttered out loud by a security services agent, not by a justice.
Naor seemed to tell PCATI that it should not care so much about the distinction between an initial review and a full criminal probe, if the initial review is serious and comprehensive enough.
All of the justices seemed to be ready to disregard many of the expert reports filed by PCATI in which top legal experts said that Abu Gosh’s treatment was torture under international law.
The justices said that even if the experts were eminent, their opinions were based on a later and revised set of allegations made by Abu Gosh against the Shin Bet, and not based on his more limited original allegations. PCATI said that some of the reports were based on forensic evidence of abuse on Abu Gosh’s body, which was valid evidence regardless of Abu Gosh’s changing allegations.
The sum total of the justices’ open statements suggests that they will be rolling back aspects of the 1999 historic decision or at least interpreting it almost entirely the way the Shin Bet wants.
If the court rules against Abu Gosh and does not publicly disclose more of the classified information that the Shin Bet has presented to it, the public may remain in the dark about one last fundamental question.
Will the court have ruled against PCATI because the Abu Gosh case was weaker than originally billed, but a later, more clear-cut case may still yield an indictment of a Shin Bet agent? Or will the court have signaled a partial retreat from its 1999 decision, more in the direction of the Shin Bet? One way or another, the High Court is about to make history once again.
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