The High Court of Justice is more accepting of the torturing detainees, as of two recent decisions, than it has been since 1999, lawyer Smadar Ben Natan said at a conference hosted by the Public Committee Against Torture in Israel (PCATI.)
Though it occurred last week, a video of the conference was only released on Monday.
Ben Natan’s comments related to a December 2017 High Court decision, but even more to a November 2018 decision that the Shin Bet’s (Israel Security Agency) enhanced interrogation of Hamas operative Fires Tavish in September 2012 was not illegal torture even though it caused him to vomit.
The senior human rights lawyer highlighted that the three-justice Tavish decision panel of Yitzhak Amit, David Mintz and Yosef Elron also held that the current policy in which the Shin Bet receives mid-interrogation legal guidance from the attorney-general's office is legal.
The major decision followed a similar blockbuster decision in December 2017 which together appeared to have made it significantly easier for the Shin Bet to justify enhanced interrogation than many legal scholars had presumed since a 1999 High court decision declaring torture illegal.
Combined, the two rulings were extremely rare examples where the Shin Bet, while publicly admitting to using enhanced interrogation, defended its use.
PCATI had argued that the High Court's own landmark 1999 decision declaring torture illegal had said that the Shin Bet can never get advanced permission to use enhanced interrogation - a form of moderate physical pressure which the court has said is short of torture - but can only get a post-interrogation approval of its actions.
According to Ben Natan at last week’s conference, this distinction is critical, both philosophically and practically.
Philosophically, she said that the distinction fleshes out the difference between saying that torturing detainees can be planned and justified in advance versus that they can never be pre-approved, but only in rare instances approved after the fact. Even where approved afterward, it would only be if the results of the interrogation, such as stopping an imminent attack, excuse the torture.
On the ground, she explained that the difference between pre-approval and post-approval is whether individual Shin Bet agents take the dilemma seriously and take individual responsibility for their actions, or whether torture becomes a factory-style bureaucracy with no individual culpability.
PCATI CEO Rachel Stroumsa went so far as to say that the High Court rulings consciously avoided answering the question of what interrogation methods it would consider to be torture.
She claimed that this watered down the value of its 1999 ruling.
In an interesting aside, Ben Natan said that she had heard from detainees who had been quietly, and without any connection to formal legal proceedings, paid compensation from a Shin Bet fund for injuries from interrogation.
The Shin Bet denied to The Jerusalem Post
that such a fund currently exists and rejected any allegations of torture, but did not address whether such compensation might have occurred in individual cases in the past.
Ben Natan concluded that part of the shift was politically-driven.
She said that two of the justices making the Tavish decision, Elron and Mintz, were hand-picked by Justice Minister Ayelet Shaked, who has said explicitly that she wants to transform the court into being less liberal.
Ben Natan said that attacks on the court during the current election season, as well as promises by Shaked and others to bring the court into an even more conservative direction, are likely predictive of how it will treat the torture issue and other civil rights issues going forward.
A spokeswoman for the courts disputed Ben Natan’s characterization to the Post
regarding the specific panel as being influenced by Shaked, saying that a later February decision by High Court President Esther Hayut - considered a moderate-liberal and a shield against Shaked’s efforts - had supported the panel’s decision.
In her February decision, Hayut rejected PCATI’s appeal for a broader panel of the High Court to override the three-justice panel, writing that the smaller panel was in line with standard court precedent.
Likewise, former Hebrew University Law School Dean Yuval Shany said he did not view the recent decisions as a radical change. Rather, he viewed them as part of a gradual movement of the High Court toward the perspective of the Shin Bet in permitting enhanced interrogation in a wider category of cases than the narrower definition of an imminent ticking-bomb attack.
He did, however, criticize the almost complete absence of criminal probes of torture complaints made by detainees since 2001. At the heart of the court’s Tavish ruling, it explained that Tavish was only given enhanced interrogation from September 18-21, 2012. This was after weeks of refusing to cooperate and taking into consideration that the Shin Bet had strong evidence he was withholding information which could lead to the prevention of terror attacks.
In fact, the court found that information he provided during two separate enhanced interrogation rounds helped to find Hamas weapons which had been used for terror attacks in the past and which were due to be used for terror attacks in the future.
While PCATI said that merely finding hidden weapons did not meet the "ticking bomb" standard that the High Court set in 1999 as a condition for using enhanced interrogation, the court disagreed and said that the Shin Bet did not need to know exactly when a future terror strike would occur.
Moreover, the court said that the terror attack did not need to be imminent in terms of occurring that day, as long as the agency believed it might not be able to prevent the incident in the general near future if it did not act decisively.