Torture.18.03.13

Torture 18.03.13

by

Howard Adelman

In my piece on The Gatekeepers, I deliberately left out one item because I wanted to discuss it separately. Avraham Shalom who served as head of Shin Bet from 1980-1986 mentioned it in the context of insisting that when it comes to terrorists, there is no morality with respect to their treatment. Candidly, he tells the story of some of the torture techniques used. One was shaking. In one case, he said, the victim was a slight person and when he was shaken he suffered from the equivalent of Shaken Baby Syndrome, the condition a young infant suffers when violently shaken. His brain was badly damaged and the suspect died after being tortured.

When we were going into the film, we crossed paths with Dr. Charles (Husky) Tator and his wife, Carol, who had just seen the film. Husky and I had been in medical school together. He is now a world renowned neurosurgeon. In recent years, he has received wide publicity because of the results of his research on the permanent damage done as a result of concussions in sports like football and hockey. His research, and the publicity about his research, can be credited with the ThinkFirst $1.5 million initiative, the partnership between The Canadian Centre for Ethics and Sport, the Coaching Association of Canada and Hockey Canada to reduce brain injuries in team sports in Canada. When I saw that scene I wished that Husky had gone to the 5:30 p.m. movie instead of the earlier showing so I could have had the benefit of his reflections on that scene.

My own reflections were about the ethics, or the lack of ethics, that Avraham Shalom expressed in discussing torture. He gave the usual reference in justifying torture to the ticking bomb theory – that intelligence people could not be bothered with moral scruples when a bomb may have been planted targeting civilians and time was of the essence. In The Landau Commission of Inquiry (Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity) set up by the Israeli government in 1987 following the death of the two captured hijackers referred to in yesterday’s blog that formed a key part of the film, The Gatekeepers, Supreme Court Justice Moshe Landau confirmed what Avraham Shalom had said in the movie, that Shin Bet or Shabak (formally the General Security Service or GSS) used physical force to interrogate prisoners. Further, the interrogators then covered that up by perjuring themselves when giving testimony in the trials of the Palestinians.

One of the most important outcomes of that Commission was a set of guidelines that governed interrogations in the future. The proposed guidelines were quickly approved by the Israeli cabinet in 1987 that allowed physical pressure on prisoners, but restricted that pressure to moderate means. These recommendations, specified in Appendix 1, were initially secret but were eventually leaked and published in 1991 by Human Rights Watch, "Prison Conditions in Israel and the Occupied Territories – A Middle East Watch Report."

The general principles, however, were available at the time. As the heads of Shin Bet following Avraham Shalom indicated, the use of violence against prisoners was considered acceptable when interrogating prisoners. The question was of degree. The Commission accepted the ticking time bomb theory under the principle of "the lesser evil" and said that actual torture could "be justified in order to uncover a bomb about to explode in a building full of people . . . whether the charge is certain to be detonated in five minutes or in five days." The violence allowed included threats and physical violence, such as slapping, but the Commission insisted that, "The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided." (my italics)

At the very least, the danger was that such techniques could slide into abhorrent practices, a danger that the Commission fully recognized. Each interrogator could take "matters into his own hands through the unbridled, arbitrary use of coercion against a suspect" thereby undermining the reputation of the state as a law abiding polity and protector of the rights of the citizen. To prevent this, "disproportionate exertion of pressure on the suspect" was deemed inadmissible. Five guidelines were specified. "The pressure must never reach the level of physical torture or maltreatment of the suspect or grievous harm to his honour which deprives him of his human dignity." (my italics) Second, the measures used must be proportionate to the immanence of the anticipated danger given the information available to the interrogator. Third, permitted physical and psychological pressures must be defined and limited in advance by binding directives. Fourth, implementation by interrogators must be subjected to strict supervision and monitoring. Fifth, in the case of even the slightest deviance from these guidelines, the interrogator’s superiors had to react swiftly and effectively, imposing punishment and even using criminal procedures against the interrogator if the interrogator was found to have exceeded the guidelines.

Ironically, the Landau Commission Report and the rapid adoption of its recommendations occurred just prior to the beginning of the first intifada triggered on 8 December 1987 when four Palestinian refugees in Jabalaya were hit and killed by an Israeli trucker, and rumours spread that the deaths were not accidental but a revenge killing for a businessman stabbed and murdered in Gaza two days previously. After all, in addition to the perceived abandonment by Egypt and Jordan, and propelled by large numbers of unemployed youth as well as restrictions on the use of land for building, the intifada was as much a revolt against mass detentions, torture, extrajudicial killings, house demolitions and deportations as against the occupation in general.

The Commission and adoption of the guidelines took place twenty-five years ago. By all accounts, and in my case studies on torture in Israel, the guidelines were effective in limiting the use of excessive force in dealing with prisoners and prisoner interrogation. Nevertheless, force was still permitted to extract confessions. Interrogation methods using moderate violent methods in the nineties following the Landau Commission Report continued. It would have been hard to conclude that these methods respected the dignity and honour of the prisoners. The methods were very moderate compared to many used under Avraham Shalom, but, in addition to shaking, poor food and the use of threats and curses, still included: "depriving the interrogee of sleep for a number of days by binding him or her in painful positions; playing loud music; covering their head with a filthy sack; exposing the interrogee to extreme heat and cold; tying them to a low chair, tilting forward; tightly cuffing the interrogee’s hands; having the interrogee stand, hands tied and drawn upwards; having the interrogee lie on his back on a high stool with his body arched backwards; forcing the interrogee to crouch on his toes with his hands tied behind him."

These results were published by Betselem, the Israeli Human Rights organization, in response to the decision of the Israeli Supreme Court that deemed that causing discomfort and putting pressure on the detainee were only lawful as side-effects of an interrogation; the techniques could not be used to "break" the detainee. The Supreme Court determined that the Shin Bet lacked any legal authority to use physical means of interrogation that cause the detainee to suffer and that are not "reasonable and fair". In 1997, the United Nations Committee Against Torture had already determined that the modified methods following the Landau Report still constituted torture in breach of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which Israel was a signatory. Israel had ratified the convention in 1991. After the Supreme Court ruling, torture overwhelmingly ceased in the treatment of Palestinian prisoners and detainees. (Cf. The Public Committee Against Torture in Israel)

After the end of the first intifada, the number of Palestinian prisoners and administrative detainees held in Israeli jails declined dramatically until the outbreak of the second intifada when they rose to very high levels. As of the end of 2011, there were only 4,722 security prisoners left, 552 sentenced to life terms.

One would not have known this was the case from watching The Gatekeepers.

As an aside, and in reference to an earlier blog on Obama’s use of drones and targeted killings, The Public Committee Against Torture in Israel took the Israeli government before the Supreme Court on this issue. On 14 December 2006, the Supreme Court of Israel determined that a continuous situation of armed conflict existed between Israel and various Palestinian terrorist organizations. In considering whether the terrorists and their organizations were to be defined as combatants or civilians, the court concluded that it was necessary to obtain well-founded and verifiable information about civilians allegedly taking part in hostilities before attacking them. Civilians taking a direct part in hostilities may not be physically attacked if less harmful means (arrest, interrogation and trial) could be employed against them. Even if employing targeted killings is legal, the customary principle of proportionality must apply. Further, after any action, an independent investigation should be undertaken to ascertain whether proportionality and targeting norms had been respected. The lawfulness of such killings was to be determined on a case-by-case basis.

Compare and contrast this situation with the American use of "torture" and targeted assassinations after the Israeli Supreme Court had outlawed the use of torture to extract "confessions" from prisoners. On 13 November 2001, President George W. Bush signed an order entitled: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism". (Cf. Jill Lepore, "The Dark Ages: Terrorism, counterterrorism, and the law of torment" in The New Yorker18 March 2013) The order authorized the detention of suspected terrorists abroad, but they were not to be tried, if they were tried at all, under conventional military law in contrast to previous practice when they were tried domestically under civilian law. John Yoo, Deputy Assistant Attorney General of the United States, drafted the broad rules for America’s "enhanced interrogation techniques. These legal opinions were known as "The Torture Memos" or the "Bybee Memo" because, though drafted by Yoo, they were signed by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. Though neither called detainees nor prisoners, these so-called "unlawful combatants" were tortured. Only the infliction of "severe pain" that contributed to loss of significant body function, very serious injury or death was said to constitute torture. A 14 March 2003 memo, just before the USA invaded Iraq on 19 March, concluded "that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects."

These methods went well beyond those that were authorized by Avraham Shalom in the 1980s and subsequently banned in Israel after 1997, and included waterboarding and the use of dogs. By the next year, two "prisoners" had already died while being tortured at Bagram Air Base. Further, the evidence to bring the suspects to trial even before a military commission were simply paraphrases of what the suspects had admitted under torture. No decent court of law would have permitted them to be used as evidence. Further, the very conservative Supreme Court of the United States in June 2006 also ruled that the President lacked any legal authority to set up these military commissions to act as quasi-legal courts.

Two days after Obama took office, torture was banned.

[Tags: torture, Israel, law, detainees, prisoners,
terrorists, suspects, rule of law]

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