Did Shin Bet torture innocent man or did he get away with murder? - analysis

A Maariv expose told of an Israeli who was arrested and allegedly tortured after he killed a Palestinian who he claimed was going to harm kids.

 Actors demonstrate the Israeli Shin Bet torture method known as "Banana b'kiseh", where a detainee with hands and feet cuffed is painfully stretched over a chair by his jailer in the shape of a banana, during a press conference held by the Israeli human rights group B'tselem (photo credit: REUTERS)
Actors demonstrate the Israeli Shin Bet torture method known as "Banana b'kiseh", where a detainee with hands and feet cuffed is painfully stretched over a chair by his jailer in the shape of a banana, during a press conference held by the Israeli human rights group B'tselem
(photo credit: REUTERS)

On Monday, Maariv’s Kalman Liebskind published an expose attacking the Shin Bet (Israel Security Agency) for allegedly torturing a Jewish resident of Samaria who killed a Palestinian, claiming it was in self-defense.

The article did not focus its attention on the police, the prosecution or the Attorney-General’s Office. Yet, top officials in those offices are often consulted when the Shin Bet interrogates a Jew for killing a Palestinian. This is especially true where access to a lawyer is denied and enhanced interrogation tactics are involved.

Has Liebskind’s expose, entirely from the perspective of the Jewish resident, blown the top off scandalous behavior by the Shin Bet and possibly law enforcement? Or has it exposed these agencies as unable to properly push through an indictment due to complex political pressures supporting the Jewish resident?

The answer to this question could not be more relevant as a new government takes power with questions about how elements of the coalition may sway government agencies in how much they police some of the Jewish terrorism that has grown in recent years in response to ongoing Palestinian terrorism.

There are two facts that the Shin Bet and law enforcement must contend with and for which there is no easy way around in terms of explanations and justifications.

 The IDF and Shin Bet arrested a number of Palestinians belonging to a cell directed by Hamas (credit: IDF SPOKESMAN’S UNIT) The IDF and Shin Bet arrested a number of Palestinians belonging to a cell directed by Hamas (credit: IDF SPOKESMAN’S UNIT)

Two facts that Shin Bet and law enforcement must contend with

Second is that the prosecution closed the case relatively quickly within only a couple of months with no charges. This was after A. had been treated like a terrorist with harsh measures applied to him, which require top approvals for departing from standard human-rights protections.

None of this is debatable.

The prosecution told The Jerusalem Post it had “reviewed the totality of the circumstances that were raised by those distinct parties involved during their interrogations,” adding that closing the case due to “insufficient evidence was decided after a thorough review and analysis of the collected evidence.”

This is a pretty generic and laconic explanation that does not really contend with the Shin Bet’s counternarrative. No deeper off-record briefing was provided. The police did not respond to inquiries at all on Monday and, as if to show how little they wanted to be connected with the saga, said on Tuesday they were too busy dealing with the Ariel terrorist attack to address the issue at all.

Accepting all of A.’s narrative along with these facts, Liebskind goes a step further, concluding that “Nothing in the story of this incident showed that A. had premeditation to harm someone, certainly not a desire to commit a terrorist act, as attributed to him in the investigation… it quickly became clear to all parties that the encounter between the group from Ariel and the Arabs from the nearby village of Ischakha was initiated by the attackers who came from their village toward the Jewish boys, armed with weapons.”

“Those who leave their homes with the desire to harm Arabs do not usually take 17 small children with them and do not go out into the field with them when unarmed.”

Kalman Liebskind

However, defense sources have confirmed to the Post that at least portions of the Shin Bet have questioned why A. was not charged with Israel’s equivalents of manslaughter or negligent homicide (note: the prosecution did not respond specifically on these issues).

The basis for such charges would ride on: 1) A. killed a Palestinian; 2) The sharp metal object he killed the Palestinian with was not the kind of object he needed for a simple peaceful walk with some teenagers; 3) For over 20 minutes, the Palestinians following the Jewish group did not actually attack, until the school children started throwing rocks and A. made multiple threatening moves toward the Palestinians; 4) the entire visit was in an unsafe disputed area, suggesting A. may have used the children as human shields for political purposes.

Some of these facts or their characterizations are disputed.

According to Liebskind and A., the sharp metal object he had that killed the Palestinian was a harmless object for cutting wires. But they do not explain why he needed this object for a short peaceful walk with children where no danger would be anticipated.

They also say the children only threw rocks and that A. only made threatening motions to the Palestinians after 20 minutes of being followed and cornered into an area where they felt they could not escape from.

If true, this may be one of the key facts in A.’s defense.

For example, A. said he only stabbed the Palestinian when he saw the Palestinian was getting ready to stab him. It is unclear how A. was able to move so much faster with the metal object – which he allegedly was keeping in reserve in his pocket – than the Palestinian, whose knife was allegedly already out.

One explanation is that after A. apparently faked that he had a gun and the children threw rocks, possibly A. already had the metal weapon out, and the Palestinian felt he was acting in self-defense.

This would be very bad for A.’s narrative.

So if the Palestinian cornered A. and the children, this would be crucial because it would mark the broader context as being one of a Palestinian attacker trapping the Jewish group to eventually go in for the kill. It flips the narrative in favor of A.

But there is a problem with this counternarrative.

The problem with this and with Liebskind’s comment about the presence of the children is that the Shin Bet views A.’s decision to visit the disputed area with children as a highly suspicious move from the start.

Even the idea of the Jews doing “weeding,” depending on the context, could be presented by the Palestinians as uprooting their crops. This is something that both sides have done to each other in disputed areas and which often leads to violent confrontations.

What if A. essentially set the table for a likely violent confrontation? What if he tried to use children as human shields in a disputed area, only to fail at this move, when the Palestinians were unwilling to grant him immunity based on the presence of the children?

The Palestinians could still be prosecuted for threatening the Jewish group with weapons and trapping them. But A. could also be prosecuted because he would have set the table, brought a weapon and used the weapon to kill a Palestinian.

Why then would the prosecution close the case with no charges?

Why then would the prosecution close the case with no charges?

The Shin Bet might point out that A. kept silent despite the enhanced interrogation tactics and that, unlike normal murder cases, this was not held against him.

A senior former top official familiar with both the Shin Bet and the prosecution confirmed that there are cases where the Shin Bet, closer to the suspects, and the prosecution, closer to the angle of how a judge will view the facts, reach different conclusions.

He also said the Shin Bet or prosecution sometimes make good-faith errors.

Critically, they might not have been that far apart. Liebskind makes it sound like the case was closed on the grounds of the charges being “groundless.” But in truth, it was because of “insufficient evidence” – much less of an endorsement of innocence.

There was another important extralegal consideration.

To win this case, the prosecution would have not only gone up against A., but it would have had to deal with a public-relations circus of a group of minors coming into court testifying about how terrified of the Palestinians they had been.

This could have been a trap even if they “only” charged A. with negligent homicide.

We may never know what really happened in this disputed area near Ariel, but this incident certainly is not going to calm the fiery passions on both sides.