Are Israel Police's interrogation tactics legal?

LEGAL AFFAIRS: From Nir Hefetz to regular cases, the methods that law enforcement agencies use to get confessions are under scrutiny.

 NIR HEFTZ sits outside the courtroom during the trial of former prime minister Benjamin Netanyahu. (photo credit: Reuven Castro/Walla)
NIR HEFTZ sits outside the courtroom during the trial of former prime minister Benjamin Netanyahu.
(photo credit: Reuven Castro/Walla)

Nir Hefetz was just the tip of the iceberg.

Suddenly, in December, the Israeli public became aware that the police use a wide variety of audacious interrogation tricks to break open their cases.

In excruciating detail, defense lawyers for former prime minister Benjamin Netanyahu fleshed out how police used a version of psychological extortion, sleep deprivation, exposure to insects, reduced food intake and limited medical attention over two weeks to break Hefetz and pressure him to become a state’s witness.

Hefetz’s turning against his longtime boss Netanyahu was one of a few key turning points that led to the fall of the prime minister, his current prosecution, and changing history.

Sources have told The Jerusalem Post that the Jerusalem District Court will hear directly from the officers who interrogated him to give their side of the story, but that even if some of the tactics crossed the line, Hefetz has made it clear that his accusations against Netanyahu are authentic.

 Nir Hefetz seen leaving the trial of former Israeli Prime Minister Benjamin Netanyahu, outside the District Court in Jerusalem, November 16, 2021.  (credit: YONATAN SINDEL/FLASH90) Nir Hefetz seen leaving the trial of former Israeli Prime Minister Benjamin Netanyahu, outside the District Court in Jerusalem, November 16, 2021. (credit: YONATAN SINDEL/FLASH90)

Furthermore, he has said the main reason he stopped lying to protect Netanyahu and switched to telling the truth was to avoid jail time – a classic and legal basis for a criminal to cut an immunity deal.

This past May, a comptroller’s report said that there were “court decisions that revealed unusual failures in the [police] investigatory process in parallel to the legal proceedings – law enforcement and prosecution officials were asked to learn lessons.”

However, the comptroller found that “the process for learning lessons in the prosecution was never completed because of the opposition of the Prosecutors Union, and that generally the prosecution’s district offices refrain from a process of learning lessons” to correct such failures.

While the comptroller’s report was out of the headlines shortly after, Hefetz’s descriptions woke up the public to what Tel Aviv Public Defender official Michal Orkabi says is a regular part of defense lawyers’ lives in trying to achieve justice.

She says many suspects (her and her colleagues’ clients) are coerced by the police into confessions – sometimes even false self-incrimination just to escape the pressure cooker of police questioning.

And it is not that Orkabi does not recognize that some interrogation tricks are necessary and legal.

“Interrogation tricks are legal under statutes and court decisions. The test of their validity is, at the end of the day, did a suspect give a free and voluntary confession,” she says.

Continuing, she states, “You can manipulate a suspect, you can tell him: cameras recorded him, even though there were no cameras; or that his friends said X to him, though none of them did. You can lie... you can tell them you found their DNA somewhere, even though you did not. The courts permit these kinds of interrogation tricks.”

But she believes there is still a massive problem.

“The court makes a distinction, which I think is misleading. You are allowed to lie [to suspects], but you cannot ‘forge.’ For many years, there were many suspects who were questioned who did not speak Hebrew,” the public defender explains.

She says that sometimes police would get these suspects to sign off on a document where the suspects did not comprehend the Hebrew in terms of the contents of the document or fully understand the legal implications for their case.

In addition, “People want to get out of these situations. An interrogation under caution creates a lot of pressure.... Sometimes it can ruin your ability to think straight. People think, I will confess now [to the police], but maybe in court I will explain why I confessed to something I didn’t do.”

Further, she states, “There is a misconception that innocent people will not confess falsely. We worry people will confess falsely based on false moves from the prosecution.”

Asked about Hefetz, she says that “criminal lawyers see this every day. I have seen much, much worse!

“One suspect went into an interrogation where the police placed a folder on a dresser – I know because there was a video recording – which said Karlof 2022. The interrogation was in 1999!” She explains that the interrogators were trying to freak the suspect out about his long-term future.

Orkabi explains that “because you are isolated from your family, it is easier to pressure you. They [the police] decide when you can go to the bathroom, have a drink, smoke a cigar, when you can speak. You do not know what is happening with your wife. The only person you can see is your defense lawyer – and even that is very limited.

“The police use all kinds of hints. They can’t say, ‘If you don’t confess, we will arrest your family members.’ But they can say, ‘If you stay silent, we will “ask” your family members questions and “invite” them to an interrogation.’ They can say they are just explaining the process – this way they pressure you without crossing the line,” she notes.

In another instance, “One suspect wanted to speak to a rabbi to ask should he incriminate his friend or not? The police said he could meet a rabbi. He met with a police officer dressed up and posing as a rabbi, who told him to incriminate his friend. He trusted the interrogators questioning him, and they crossed all of the lines. The violation of all of the boundaries was very, very clear.

“And even the court thought they had crossed all the boundaries – but [the court] accepted it [the confession] into evidence anyway!” she says in exasperation and to illustrate her broader criticism of the system.

Discussing how Israel protects suspects’ rights somewhat less than the US, since it does not absolutely disqualify evidence obtained improperly based on the “fruit of the poisonous tree” principle, she says that the general trend in court decisions has improved a bit.

She says, “Israel does not have a complete fruit of the poisonous tree principle, but if the police [illegally] obtain an item of evidence or act against the law, then the court can weigh whether to admit the item as evidence or not. There is now a line of evidentiary items that were disqualified.”

Despite those small positive trends, she says that “it is difficult to overcome the threshold” to get courts to disqualify evidence, and that the vast majority of the time, police can break the rules, and as long as they did not go too far and got a valuable piece of evidence, the courts will look the other way.

She says that even in the US, there was a spectrum of how courts might rule, but that the biggest difference was that often in the US, “The judges don’t care if what the suspect said is true or not. They look at the actions of the interrogators. The police can say these are really bad criminals, so we will lie, but the court will say ‘No, not everything is allowed. I will disqualify the evidence’” as a matter of principle, regardless of whether the court thinks the confession was true or not.

“In the past, Israeli judges said we will punish both the police and the criminals” by rebuking the police, but still convicting the criminals. “But they saw that it didn’t work. There was no impact on police from simply saying ‘no, no, no’” to them, she adds.

ADDRESSING THE issue from a completely different perspective, former head of the police operations command Yaakov “Kobi” Cohen says interrogations walk a fine line, noting the principle “Don’t put an obstacle before a blind person. It is not like math, where you can just see that this [interrogation] method is prohibited and this one is permissible.”

Cohen was one of the few willing to discuss the hot-button issue from the police side.

“The interrogation trick will be evaluated by the prosecution and the court afterward,” which will be the real test and point to clarify if something was legal.

But he says police try to avoid doing things that could be characterized as deeply fraudulent, such as “where someone might say that you constructed a situation where the suspect did what they did because there was no real choice. There are limits, but they cannot be measured exactly.

“Without interrogation tricks, the police could not exist. You cannot just turn to someone and ask them to confess, ‘I did it.’ With 99% of people, no one admits or confesses. There are also defense lawyers, and things get very complex,” says Cohen.

According to Cohen, many interrogation tricks get vetted by police supervisors.

Sometimes the police supervisor knows they can just pull off a certain trick, “but if they are unsure, they will ask the prosecution. Big cases usually have a supervising prosecutor,” says the former head of police operations.

Cohen says, “Sometimes the prosecution approves, but sometimes they do not approve a proposed method of interrogation, or they say ‘you can do it, but only in a different way.’ You pull on the rope, but do not tear it.”

He says there is oversight “by the state at many levels, and in the end, it is the courts who say whether it was improper or proper.”

How are there stories of police crossing the line, and what happens to problematic interrogators?

“The Police Investigations Department (PID) is not in the picture usually. Most of the cases in which there is a claim of a ‘departure’ [from the rules] did not get to the prosecution [for approving the trick] and do not involve grave charges.”

In other words, many screwups happen in less important cases, where the higher-ups are less involved.

“Maybe the interrogator needed a mere approval from a supervising police official and the supervisor gave an approval, but the interrogator did not carefully stick to the guidelines for the approval and went beyond its limits. Or maybe the supervisor, who is still only human, approved a departure [from the rules] which he should not have,” he explains.

He recognizes that there are rare occasions where claims of interrogator misconduct make it to the prosecution, to PID and could even end up in court.

Next, he was asked whether it is tougher to crack cases involving heads of criminal organizations or corrupt politicians.

“People are people. You need to find the weak link. Everyone has one. Whether crime organizations or politicians. You search and you find something. Politicians have a circle of advisers – you find the weak link, and the same with criminal organizations. Someone did something: he cheated on his wife or anything else which might raise a question mark. You ‘open him up,’ and that opens up other doors,” says Cohen.

How do the police avoid false confessions?

“For someone who was at the scene [of a crime], interrogators always hold something up their sleeve; they can ask what the person left behind at the scene. Someone could say, ‘I perpetrated the murder and did not leave anything behind,’ but the interrogator knows that the real killer left behind a hat.”

He says that interrogators ask such verification questions “to make sure someone is not just confessing” to be released from questioning. Other questions that can easily pick out a false confession include asking a suspect about the time of day of the crime, whether it was dark or light out, and many questions about the physical layout of the scene.

In addition, he acknowledges that neither the prosecution nor a police supervisor can follow every action of an interrogator 24 hours a day, but posits that generally the system works.

Regarding defense lawyers, he said they help catch police mistakes. “We are humans, we make mistakes.... The goal is to get justice. I respect defense lawyers. They provide a check on the police and the prosecution; and if there are problems in an interrogation, sometimes cases get dropped.”

The police spokesperson’s unit responded that the police “act according to the police laws which authorize it... to conduct interrogations where there is a suspicion of a crime... which are supervised by high-ranking officers of the police, by the prosecution and the courts.

“Police interrogations are designed to obtain evidence that reveals the details of what occurred at the time of the crime, with the purpose of getting to the truth, while being careful about the law and the rights of suspects,” says the statement.

It says further, “We vehemently reject the baseless claims that try to harm and defame interrogators,” noting that all police activities are recorded for the courts to evaluate.

In addition, the statement indicates that “interrogation ruses and tricks are valid,” based on set standards, and that the police will continue to professionally interrogate suspects in order to protect the public from crime.

One potential major change in this story is a new proposed law by Justice Minister Gideon Sa’ar which the Knesset Constitution, Law and Justice Committee has already held hearings on, and is expected to discuss more and hold second and third reading votes on in the near future.

The law would bring Israel closer to the US in encouraging judges to disqualify improperly obtained evidence, but would still not have the same absolute rule of disqualifying evidence that was obtained improperly regardless of whether the evidence is viewed as true.

Where the issue will go from there could depend on Sa’ar, Hefetz and how much the public cares.•