High Court: Enhanced interrogation was legal to stop 'ticking bomb'

Did Israel’s Shin Bet finally cross the line and torture a suspect under interrogation?

By
December 13, 2017 13:17
An IDF soldier stands next to a blindfolded Palestinian prisoner

An IDF soldier stands next to a blindfolded Palestinian prisoner. (photo credit: REUTERS/IDF HANDOUT)

 
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Extreme forms of physical pressure during an interrogation of a Palestinian man, which the Shin Bet admitted to on the record, was legal in order to stop an imminent terrorist threat, the High Court of Justice ruled on Wednesday.

Legal experts consider it the most important decision about interrogations and torture allegations in 18 years.

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Essentially, the court took the state’s side on all of the key issues before it: that extreme forms of physical pressure or “enhanced interrogation,” but not “torture,” had occurred; that the enhanced interrogation was legal because of a valid “ticking bomb” concern; and that the prosecution could fulfill its duty to investigate with a mere initial review, as opposed to a full criminal investigation, of the Shin Bet (Israel Security Agency) interrogators involved.

The Public Committee Against Torture (PCATI), the NGO at the forefront of taking the Shin Bet to court over torture allegations, said that Palestinian prisoner Assad Abu Gosh received harsh beatings, was placed in the “banana” position that painfully pressures the back and other body parts, and was pressured on his fingers.

The questions before the High Court were of historic importance and could have major impacts on all future cases in this area.

These included: Did the Shin Bet finally cross the line and torture a suspect under interrogation? And if it did, how will the state go about deciding which methods were torture and whether or not there was some immediate security risk that might justify harsher interrogation methods of some kind?

In 1999, the High Court, led by then-president Aharon Barak, declared it illegal for the Shin Bet to use torture in its interrogations.



Without setting clear definitions, the court in 1999 also effectively endorsed the Shin Bet’s use of “moderate physical pressure” methods 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 of the terms “moderate physical pressure” and of a “ticking bomb” situation had never been set, and no Shin Bet agent had ever been convicted by any court.

Not only that, but despite over 1,000 complaints alleging Shin Bet torture since 1999, not a single Shin Bet agent had even been criminally investigated or indicted.

In fact, most of the time, cases went nowhere because the Shin Bet and the government denied that any harsh interrogation methods, let alone torture, were used. Usually, their word trumped allegations by a terrorism suspect about how he was treated.

At least that’s how it had been until the case of 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’s interrogation facility in Petah Tikva.

He was convicted in a plea bargain in 2009 for manufacturing a bomb, possessing weapons of war, and membership in an illegal organization, and sentenced to five years in prison.

But the key part of his story is the interrogation by the Shin Bet from September 3 until October 24, 2007, which included methods of enhanced interrogation. During that time, he revealed the location of an explosive vest he had built to be used by other members of his terrorist cell on Yom Kippur.

It was during this interrogation process that PCATI alleged Abu Ghosh was tortured.

Despite these allegations, while Abu Gosh’s case received a nonpublic “initial review,” the state prosecution refused to criminally investigate.

PCATI then filed to the High Court petition.

Top legal officials have told the Post, and state lawyers later confirmed, that the information the Shin Bet received from the interrogation tactics saved lives from an impending terrorist attack.

Standardly, the Shin Bet dismisses most complaints about torture during interrogations as false and motivated by suspects’ hatred of their interrogators or by a desire to create an excuse to be used in Palestinian society as to why a prisoner incriminated fellow Palestinians.

The Shin Bet’s public admission to using enhanced interrogation on Abu Gosh meant these standard defenses were out from the start.

Suddenly, the Shin Bet, the state prosecution and the courts had to wrestle with the thorny questions of defining the difference between permitted “moderate physical pressure” and prohibited torture, as well as between a real “ticking bomb,” which justifies pressure, and a crime-prevention situation that does not.

While PCATI succeeded at convincing the High Court to order the Justice Ministry unit that is devoted to overseeing complaints against the Shin Bet to perform a more in-depth review of the Abu Gosh case, including a re-questioning of involved Shin Bet interrogators, ultimately the High Court supported the state’s conclusion that no law had been violated.

Justice Uri Shoham took the lead in explaining that the court would not second-guess multiple attorney-generals who had found the Shin Bet’s actions legal. He rejected major evidence brought by PCATI, including a forensic expert report of Abu Gosh’s injuries and a report by top international law experts – each of which concluded Abu Gosh was tortured.

Shoham wrote that both reports were based on a narrative Abu Gosh told the experts years after the event, which contradicted or embellished what he had said at the time about his treatment.

On the other hand, the Shin Bet interrogators did admit that Abu Gosh had complained of back pains during his interrogation and that they had not passed this on to their supervisors. PCATI also had said that Abu Gosh had been afraid to complain too much right after his interrogation.

High Court Deputy President Hanan Melcer and retired justice Miriam Naor agreed with Shoham’s opinion, while Naor reaffirmed that she would not endorse actual torture in interrogations in any scenario.

(Naor reached the mandatory retirement age for judges of 70 in October, but continues to sit on cases she began hearing before that time.)

The court’s opinion publicized some additional information for the first time, including that Abu Gosh told the Shin Bet where his weapons lab was, where they found significant materials for future bombs.

Shoham also declared definitively that a “ticking bomb” situation does not have to mean an attack is imminent or that the detainee being exposed to the extreme pressure knows exactly where the bomb is. In Abu Gosh’s case, the Shin Bet did not find the explosive belt until 17 days after the interrogation and, even then, it was found as a result of additional information provided by a different detainee as well, said the court.

Rather, in an interpretation that had been in dispute until now, the court said that the fact that the Shin Bet had information that he was a bomb-maker and that he had fully assembled bombs in play was enough to permit extreme pressure methods.

PCATI expressed great disappointment at the result and said that the High Court in 1999 had been ready to declare the state’s organs as failing to properly uphold the law, and that the current High Court was less brave.

Condemning the decision, PCATI stated: “Such a ruling effectively legitimizes the use of torture methods, some of which have been prohibited by the High Court. It blocks torture victims who have suffered physical and psychological trauma from achieving justice and denies the necessary moral change in Israeli society.”

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