Demonstrator reenacts waterboarding in Washington anti-torture protest, 2007.
(photo credit: REUTERS)
Tuesday’s landmark US Senate Report on the use of enhanced interrogation techniques on detainees said the CIA had cited Israeli courts as a precedent for justifying the torture program.
On November 26, 2001, soon after the September 11 attacks on the US, the CIA general counsel wrote that “the Israeli example” could serve as “a possible basis for arguing... regarding terrorist detainees that ‘torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm.’” The internal memorandum also said that “states may be very unwilling to call the US to task for torture when it resulted in saving thousands of lives.”
An August 1, 2002, memorandum by the same office to White House counsel includes a similar review of this argument – known as a necessity defense – against potential charges of torture.
In 2005, there was a congressional and nationwide debate over the detainee interrogation program, with many moving to limit the program’s breadth but also formally legalize aspects of it via legislation.
CIA lawyers working in the Office of the Director of National Intelligence and the Office of the General Counsel in 2005 and 2007 referred to the public debate as strikingly similar to the debate Israel had regarding the 1999 High Court of Justice ruling on torture.
More specifically, the lawyer said the Israeli court had authorized some techniques, provided there was first legislative action to allow them – something the government eventually obtained.
The lawyer noted that the use of enhanced interrogation was limited to “ticking bomb” scenarios – those in which there is an immediate security threat.
Further, a court would not able to authorize these techniques in advance, only retroactively approve them in the event that an interrogator facing charges of torture cited a necessity defense.
Despite the citation of Israeli precedent, a major accusation against the CIA’s enhanced interrogation program is that the torture techniques went far beyond the “moderate physical pressure” standard permitted by the Israeli courts, and that the program had used torture even in cases when there was no “ticking bomb” or imminent danger.