State Attorney: Backing the Shin Bet’s interrogation tactics when they are under fire

Nitzan spent much of his career arguing before the High Court on a range of issues, but especially regarding security-related issues.

By YONAH JEREMY BOB
Updated: APRIL 22, 2016 09:56
SHAI NITZAN. (photo credit: MAARIV)
SHAI NITZAN.
(photo credit: MAARIV)
State Attorney Shai Nitzan is a force.
He has a wide smile, can be low key and can switch suddenly into reciting poetry or putting forth philosophical positions on issues of national interest like judicial activism. But even then there is a passion and an all-encompassing seriousness that animates him.
He is so busy that he rarely speaks to the media on or off-the-record and is hardly even available to his spokespeople who are supposed to represent him to the public.
And he had this intensity in High Court of Justice proceedings and Knesset committee hearings in prior top Justice Ministry positions. Yet his position as the country’s top prosecutor of the likes of the Duma defendants, former prime minister Ehud Olmert, Rabbi Yoshiyahu Yosef Pinto and others has taken him to a new level.
Born in 1959, he is married with five children and lives in Jerusalem. He served in the IDF Paratroop Brigade and is no intellectual slouch, with four academic degrees. Nitzan spent much of his career arguing before the High Court on a range of issues, but especially regarding security-related issues.
He was appointed as the country’s top prosecutor in November 2013, somewhat as an outsider never having been a prosecutor, and replacing the prosecutor’s prosecutor, Moshe Lador.
But one place Nitzan has always been comfortable, and earned enemies on both the Right and the Left, is for defending the Shin Bet’s use of aggressive interrogation and investigations tactics to address security cases.
Nitzan is on record as admitting that it is not impossible that individual agents of the Shin Bet (Israel Security Agency) do not go over the line in their interrogations of detainees on rare occasions, but that as an institution, it has run according to the law with strong oversight since the Bus 300 Affair in 1984.
There have been major changes since the Bus 300 Affair. They include the High Court’s 1999 torture ban and the 2013 Turkel Report on whether the interrogations comply with international law which led to transferring investigations of detainee complaints of torture against the Shin Bet into the Justice Ministry and out of the agency.
Critics of Shin Bet interrogation tactics have recognized that the new unit is more transparent, meticulous and comprehensive in its “initial reviews” of torture complaints.
However, they criticize that it appears that the new paradigm is to stop all cases at the stage of an initial review, with no cases ever reaching a full criminal investigation let alone an indictment, despite over 1,000 complaints being filed over recent years.
In October 2015, the Jerusalem Post was exclusively provided internal Justice Ministry memoranda about the reasoning for closing certain initial reviews.
If asked about if he is comfortable with the idea that the reasoning of most of these “initial reviews” is written similarly to memoranda closing full criminal investigations and use defenses like “necessity” for Shin Bet agents which one might use at trial, Nitzan would not flinch.
He would no doubt argue that the probability is that most of the complaints, whether from Palestinians or Jews, are patently false, and filed by security criminals to strike back at law enforcement and as part of an ideological play to garner global sympathy.
Those close to him would add that many of the complaints are filed for cover by detainees who eventually handed over information about their co-conspirators to the Shin Bet so that they can explain that they only broke after being beaten and tortured.
He would admit that the “initial reviews” are a kind of criminal investigation, but would cite the High Court as having approved the special procedure not requiring the full criminal investigation formally.
In terms of how the world views the issue and whether Israel would get more sympathy and less criticism if it were to open full official criminal investigations against Shin Bet interrogators, the impression is he would say that he cannot spend too much time worrying about the world’s view.
And Nitzan is not ignorant of criticism of Israel, having previously been a leader of the state’s efforts to fight off the Goldstone Report’s allegations.
It would appear that he would focus attention also on the Shin Bet agent’s side of the story, likely noting that the agent genuinely believes everything he did, he did for the state and that criminally investigating him for his actions that are part of his duties would not be fair.
Allegations of torture of detainees have regained prominence in the media’s headlines since the Shin Bet and the attorney-general admitted to using “moderate physical pressure” against multiple Jewish suspects in its investigation of the grisly July Duma murders.
While your average Israeli is more inclined to look the other way when the Shin Bet uses such pressure on Palestinians, when they are used on Jews, it seems to get more attention.
One thing which is extraordinary is the difference in thinking currently on the issue of using pressure in interrogations in Israel versus in the US, despite the fact that Israeli thinking on security issues often tracks the US.
In December 2014, the US Senate Intelligence Committee released the Feinstein “torture report” (for Senator Diane Feinstein) after reviewing six million classified intelligence documents over five years and concluded that “enhanced interrogation” (or torture depending on which side of the debate you take) never worked for the US during the post-9/11 years it was used.
Top Democrats who received real-time classified intelligence briefings about the enhanced interrogation program at the time and approved it, like former US Congressman Jane Harman, now firmly disapprove and in retrospect argue that pressure only obtains false confessions.
In November, the US Congress, despite being majority Republican, by wide bipartisan majorities passed into law a ban against using enhanced interrogation, in a move supported by CIA Director John Brennan.
How would Nitzan response to the challenge that pressure on detainees does not work and should be illegal? Here, most say Nitzan would be adamant and call the idea that pressure does not work nonsense, maybe even addressing Senator Feinstein to say something like – with all due respect he knows Shin Bet cases historically firsthand, and knows it has helped.
Not that he does not understand the concerns and the objections. He would likely say that he understands those who ask ‘was it right’ to use pressure on detainees and was a particular case where it was used really serious enough to declare it a ‘ticking bomb’ case. The High Court has said Shin Bet agents cannot be prosecuted for using pressure in ticking bomb cases – cases where the interrogation could prevent an imminent danger. Critics on the Right and the Left argue that the Shin Bet has made the definition of ticking bomb and imminent far too flexible.
But then he would double-down and argue that even as those points might be part of a legitimate debate, that to say pressure never works is just not accurate.
A classic case which Nitzan might put forward to prove his point would be the Abu Gosh case where the Justice Ministry’s side of the story would be that pressure helped security forces catch someone who was going to set off a bomb on Yom Kippur.
What does the future hold on these issues? Will more Jews be interrogated with pressure by the Shin Bet in the future? Those closest to him would say that he might struggle with this question, hoping not to use pressure and banking on the low number of truly dangerous Jewish extremists in the past, but being unable to discount it completely, admitting that he is not a prophet.