‘Ticking bomb’ limit on enhanced interrogation is dead

The question of how far enhanced interrogation can go before it constitutes torture – and whether the Shin Bet had crossed that line – was ripe for a decision.

By
June 20, 2018 01:37
3 minute read.
Duma

A man looks out of a house badly damaged by a firebomb attack by suspected Jewish extremists in the Palestinian village of Duma in the West Bank, July 31, 2015. (photo credit: REUTERS)

Maybe the most important and shocking ruling on Tuesday in the blockbuster Duma alleged Jewish-terror/arson case was that the court did not rule at all about whether the Shin Bet’s enhanced interrogation of the two defendants was legal or constituted torture.

Their failure to decide and what they did say in the decision might very well be the death of the “ticking bomb” impending-attack principle which is supposed to limit the use of enhanced interrogation to only the most extreme circumstances.

The question of how far enhanced interrogation can go before it constitutes torture – and whether the Shin Bet had crossed that line – was ripe for a decision.

There have been deep-festering questions about the Shin Bet’s treatment of Jewish extremists since the July 2015 Duma terror attack. The question of whether torture was used and how far the Shin Bet can rough up Jewish detainees are begging for answers.

Further, the Lod District Court had cover for deciding this incredibly high-stakes and sensitive issue, since the High Court of Justice issued a major decision in December setting down a series of new parameters for enhanced interrogation.

In the December Abu Ghosh decision, Justice Uri Shoham declared definitively for a three justice panel that a “ticking bomb” situation does not necessarily mean that an attack is imminent or that the detainee being exposed to the extreme pressure knows exactly where the bomb is.

In Palestinian Assad Abu Ghosh’s case, the Shin Bet did not find an explosive belt he had been working on until 17 days after the interrogation and, even then, it was found as a result of additional information provided by a different detainee.

Yet, in an interpretation which had been in dispute since 1999, the High Court said that the fact that the Shin Bet knew that he was a bomb maker and that he had fully assembled bombs in play was enough to permit extreme pressure methods.

The big question in the Duma decision was whether enhanced interrogation could be used to get a confession for a past crime – which would seem to stretch the idea of a ticking bomb even further.

On Tuesday, the judges avoided the question and provided a path for future courts to avoid the question.

They acknowledged that even though Duma was a past event, the Shin Bet had valid concerns about preventing future attacks by that cell, based on connections to another serious price-tag incident and the defendants’ links to a Jewish extremist cell espousing a rebellion against the state.

The problem with the court’s reasoning is this: absent any specific concrete concern whatsoever – unlike in the Abu Ghosh case where there was an explosive belt, even if it was unfinished – can’t the Shin Bet then just use that as a full-proof excuse in any case? Isn’t any suspected terrorist potentially linked to future attacks?

Whether the court’s decision was right or wrong here, its reasoning changes the ticking-bomb loophole into an endless black hole.

What messages of restraint, then, are being sent to keep the Shin Bet in line?

In the Abu Ghosh case, the Public Committee Against Torture in Israel (PCATI), 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.

The High Court there sidestepped giving a ruling on the issue of whether these methods had been torture, instead disputing Abu Ghosh’s claims of what enhanced interrogation techniques were used on him and how much they hurt him.

The Lod District Court on Tuesday avoided the issue even more, not discussing any of the techniques used and refusing to rule on whether they were torture. It used the legal technical cop-out that the confessions’ validity could be decided without deciding the torture issue.

This not only seems to again give the Shin Bet a no-limits message, but gives no closure to the national debate over the issue.

In the Abu Ghosh decision, Justice Shoham’s main argument was: how can the High Court question three attorney-generals who all said that what the Shin Bet did was legal?

Yet, question and overrule the attorney-general is exactly what former Supreme Court president Aharon Barak did in 1999 when he forbade torture.

Tuesday’s Duma decision continued with the latest trend of courts seemingly being unwilling to take a stand on enhanced interrogation issues.

In that way, by not deciding, they may be putting the ticking bomb and other limits on enhanced interrogation to rest.

 


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