This month has been an extraordinary time in the battle over the future of the Shin Bet’s (Israel Security Agency) use of enhanced interrogations.
Portions of the Right and the Left united for the first time in a conference in which they jointly criticized the Shin Bet’s interrogation tactics. A top Justice Ministry official, deputy state attorney Nurit Litman, answered them in public with greater specificity than has occurred to date.
This was only days after a major High Court of Justice ruling rejecting torture claims by Palestinian Fires Tavish.
Are the major announced reforms from 2013-2018 regarding probes of torture allegations of the Shin Bet’s enhanced interrogations, plus this week’s conference, a turning point in the debate over the highly-explosive issue? Or does the High Court ruling signal not much has or will change?The history of Shin Bet
interrogations until 1999 includes periods where the agency used and covered-up torture. Generally, critics like the Public Committee Against Torture in Israel (PCATI) acknowledge that interrogation methods since the High Court declared torture illegal in 1999 have been “less brutal,” though they still define as torture what the court calls “moderate physical pressure.”
In February 2013, the quasi-government Turkel Commission recommended that the unit investigating allegations of Shin Bet torture of detainees be moved from the agency to the Justice Ministry to be independent.
A series of key dates passed before this new unit was actually up and running. Former IDF chief prosecutor Col. Jana Modgavrishvili was appointed to run the unit in June 2013. She did not take office until February 2014, and did not have a functional unit until May of that year.
In February 2013, the Turkel Commission recommended that Shin Bet interrogations be videotaped. Under a compromise reached in December 2016, those interrogations are shown to inspectors on a live feed video but not recorded.
Fueling the debate about whether the new unit has succeeded in changing the investigations of torture complaints against the Shin Bet, different parties had different ideas about what the purpose of the unit.
Modgavrishvili stepped down in September. Three months later, notwithstanding that she gave the Justice Ministry a year’s notice of her intention to step down, the ministry has still not replaced her.
Five years later, it is now clear that Modgavrishvili and the government viewed the new unit as a way to professionalize probes, have a stronger hand in changing the way the Shin Bet conducts interrogations, file more disciplinary proceedings, and speed up decision making.
Critics of the system prior to 2013, when the Shin Bet reviewed itself, but had not criminally investigated a single case out of over 1,000 torture complaints, had hoped there would be indictments and that the three- to five-year decision track would be cut to between several months and two years.
Five years after Modgavrishvili’s appointment was announced and with over 1,100 complaints filed over more than 15 years, there has only a single criminal investigation.
Even that late 2017 investigation involves a case of alleged wrongful body cavity search by a combination of both the Shin Bet and IDF officials, unique circumstances that do not match up to the typical allegations of beatings and torture in an interrogation solely by the Shin Bet. Thus the sole criminal case is likely a fluke. Moreover, it is unclear it will lead to an indictment let alone a conviction.
It is not surprising that in light of the different goals, that the government claims the new unit as a major success at reform, while critics claim it has changed the packaging but not the substance.
The most important issue for critics, led by PCATI, is the absence of criminal investigations and indictments despite the staggering number of complaints.
There are many reasons that Litman said at the conference and which other sources told The Jerusalem Post about why there are almost no criminal investigations.
But those reasons and the five-year debate surrounding their validity has likely been ended (for better or for worse depending on your side) by the High Court’s December 2017 Abu Gosh decision and its Fires Tavish decision in November.
Together the two rulings constitute the Shin Bet’s admission to using enhanced interrogation.
Combined, these decisions mean: 1. The High Court repeatedly sided with the prosecution over PCATI over whether torture or legal moderate physical pressure was used; 2. Finding hidden weapons after weeks of interrogation and without knowing the date of an attack which would satisfy the ticking bomb justification for such pressure if the Shin Bet believes it may otherwise fail to prevent the attack; and 3. The attorney-general’s office can manage and approve the Shin Bet’s pressure in real time so that agents can worry less about how a court might rule later.
The High Court’s decision can be defined either as a reinterpretation of its 1999 anti-torture decision or of filling all ambiguities in that decision in a direction that aggressively favors the Shin Bet.
But Litman and other sources recently told the Post
that the focus should be on the new unit’s filing disciplinary proceedings against Shin Bet agents and its reforms of the interrogation procedures.
Incidentally, Litman said that the post-2016 institution of live video feed had enhanced the unit’s ability to file disciplinary proceedings and its positioning for pushing for reforms of the interrogations themselves.
Pressed for statistics, the Justice Ministry did not provide any.
However, the Post
has previously reported from exclusive state materials that in one instance Shin Bet interrogators questioned a suspect in the field, rather than at headquarters as expected, and that the Shin Bet was pressed by the unit to refrain from this in all but the most impending attack situations.
PCATI’s next attack against the unit and the reforms would be time.
The new unit was supposed to resolve a backlog of unresolved cases.
Yet, the 15 months it took for the major reform to start and the almost four years for the live video feed are a metaphor for the new unit’s glacial progress in dealing with cases against Shin Bet agents.
Some unresolved cases dating back more than five years are still waiting for decisions. The average time for a case decision is 28 months, according to PCATI.
A 2017 US State Department report said that Israel had noted 139 open cases, of which half were received between 2013 and 2015. At that point, all but one of PCATI’s complaints for 2014 were still unresolved. In late 2015, PCATI had told the Post
the average was 32 months. While a slight improvement, this is nowhere near what the state, let alone PCATI, would find acceptable.
A November letter from PCATI to the unit for probing the Shin Bet cited a few dozen several-year-old cases where the state had given no details about their status other than that they are “being handled.”
In two cases where the Justice Ministry provided more specific information in January 2018 to PCATI that the years-old cases were at a more advanced stage, the Post
recently clarified that one of the cases was finally closed in October. The second case remains undecided.
Litman and other government sources who the Post
spoke to were clear that one of the biggest disappointments with the new unit was the failure to slash the decision time.
The Deputy State Attorney and other sources said that much of the issue was a budgetary question. They said Modgavrishvili had never got the staff numbers she needed, and the additional staff she received took an inordinate amount of time.
Modgavrishvili’s chair has been empty for three months and counting. It remains unclear whether the lack of staffing is due to the difficulty of finding the right highly-trained individuals to probe the Shin Bet, or whether elements of the government or security establishment broadly have little interest in devoting more staff to such a probe.
One security source noted Shin Bet interrogations are meant to thwart terrorist attacks and saving lives, and that there are multiple government and judicial levels of oversight to the interrogations.
Ultimately, whether one views those reforms as a success depends on whether one focuses more on the Shin Bet’s role in stopping terrorism or the detainees’ experience during enhanced interrogation.
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