This commentary delves into the highly-debated issue of the legality and jurisprudence of sanctioned interrogation…
The expressionless faces of the Supreme Court Judges, upon entering courtroom No. 1 of the Supreme Court, that morning ten years ago (6.9.99), did not show any evidence of the drama which was to be played out within the following minutes. This is the way of judges experienced in handing down rulings, whose facade does not reveal their intentions. Only the quick glance of the Head of the panel of judges in the direction of the reporters’ balcony, before seating himself in his elevated chair, gave a hint of what was to come: “A written summary of the decision in Hebrew and in English, will be given shortly” he stated. And, indeed, within a few minutes, during which he hastily read out the summary of the decision in a hushed voice – which was later on to be known as the “The Supreme Court Decision on Interrogations” or as termed by others “The Supreme Court Decision on Torture”, the new legal reality became clear, which was expressed in the terrorism interrogations issue: No more “moderate physical pressure”, no more original legal concept – the product of the Landau Commission – which differentiates between a regular criminal interrogation and an intelligence interrogation executed in order to thwart a terror attack; and no more interrogation procedures arranged as an internal codex, to categorize the permissible and the forbidden, as a guidebook for those who have the task of executing the terror interrogations.
A reminder: For decades, since the establishment of the State and even prior to that time – security officials used “special interrogation methods” on those suspected of terror activity. Alongside the use of acceptable and recognized interrogation methods, the purpose of which is to obtain evidence for prosecution, such as questioning and various stratagems – the ruling assumption was that in order to obtain the necessary information from suspects, in order to thwart future terror attacks – there is no alternative, in certain cases, but to use physical and psychological force; as it is impossible to presume that the ideological suspect being interrogated, a member of a terror organization, with the motivation of a freedom fighter, committed to organizational solidarity, who has the ability to withstand the pressures of interrogation and is fanatical in his loyalty to his comrades-in-arms and ideology – will be inclined to sit “over a cup of coffee”, in order to share the information which he possesses, to incriminate and implicate his comrades and foil his organization’s plans. The special interrogation methods were intended to wear him down, to break down his resistance, and to “persuade” him to give his interrogators the information which he was privy to, which could enlarge the picture possessed by the intelligence services, enable them to arrest additional members of the cell or organization, capture arms and ammunition, expose safe houses and caches and disrupt terrorist activity in the making – before their planners were able to realize their plans. These interrogation methods were considered covert, by their very nature, and were kept concealed by their “executors” – the interrogators in the security domain – in Israel as in other countries worldwide – and were even hidden from the prosecution and the courts. This reality was only fully exposed to the public, for the first time, following the report published in October 1987, by the official national investigation commission, headed by former Head of the Supreme Court, Judge Moshe Landau. The establishment of the Commission, was the outcome of the series of mishaps committed by the Israel Intelligence Services at the beginning of the 1980s, known as the “Bus Route 300”, “Izzat Nafsu” affairs, misleading of General Zorea’s Commission, etc., which are remembered adversely.
The Commission adopted the professional stand of the intelligence services, that when interrogating terror suspects, there is sometimes no alternative but to use physical or psychological pressure when dealing with a tenacious suspect. The legal basis for justifying the use of such means – which are apparently against the law – was determined by the Commission in defense of necessity in criminal law, i.e.: the choice between two possible evils – a limited breach of the law towards a suspect being interrogated on suspicion of terror activity, as opposed to saving the lives of many, by preventing an anticipated deed – the interrogator would be protected if he advanced the rescue, to a reasonable extent, at the price of the breach. The Commission even attached an undisclosed addendum to its report, which included a list of actions, including the amount of time and intensity – which could be used against a suspect – in order to obtain the vital information which he refuses to impart of his own free will. The Commission determined that these actions – if carried out within the framework of the established regulations – would be protected under the said safeguards; the executor – the interrogator – would not be open to criminal charges, and his dispatcher, the State, would not be accused of torture, which is illegal in international law.
For twelve years, from 1987 to 1999, the intelligence services, headed by the Israeli Security Agency, in conjunction with the senior officials of the Ministry of Justice, acted in accordance with the concept authorized by the Landau Commission and according to the regulations established and detailed, updated and ratified, from time to time, by special ministerial committees. These, headed by the Prime Ministers in office at the time and the government’s senior ministers (with the permanent participation of the state Attorney-General and his office’s senior employees), supervised the operations carried out in this respect, on an ongoing basis. Indeed, over all that period, Israel endured internal and international public criticism with regard to what was considered to be torture and a breach of internal and international law. During this period, the torture issue was constantly brought before the Supreme Court by private petitioners, who were being interrogated and requested its help.
Contrary to its interests – the Supreme Court – without ruling in principle – was involved and conversant of all the details of scores of interrogations. So much so, that it was maintained, that in deviating from the performance of its natural duties, its silence gave permit to all the system’s operations. The Court’s ruling in principle on this issue was left to the right time, and this came about on that morning of 6.9.99.
The Supreme Court’s monumental ruling overturned all the professional and legal perceptions which existed before the ruling, and compelled the security services, as well as the Israeli public, to adjust to the new reality. This was one of the most prominent cases in Israeli legal history – also in the ultra – activist era – when the Supreme Court interfered in such a determined and immediate manner in explicit security matters, and this in one of the most significant and sensitive periods to the destiny of the Israeli public: Palestinian terror attacks on every home in the heart of Israel’s home front. So much so, that there was an existential threat to the ability of survival of the normal civilian lifestyle. There is no doubt, that the Supreme Court took upon itself an admirable independent stance, by any yardstick, but also took a problematic risk with the population’s fate, as well as with the confidence of the Israeli public in the Court itself.
A decade later, and after reading the ruling yet again, it is interesting to re-examine a number of the presumptions and to try and formulate a number of insights. The ruling, which was unanimous and handed down by an expanded panel of nine Supreme Court judges headed by Prof. Aharon Barak, is without doubt a “Baraki” work of art, in the fullest sense of the word: coherent, reasoned, properly phrased, profoundly expressed – layer upon layer. A penetrating study of the ruling, reveals that it has a combination of considerations imbedded in it from various spheres, not all of them strictly of a legal nature: moral, ethical, political, accountability, etc. In hindsight, the good news is that the constraints which the Court placed on those responsible for thwarting terror attacks in democratic Israel (who operate “with one hand tied behind their backs”, as expressed by Barak himself), apparently did not harm their countering ability dramatically. Other tidings require additional in-depth elucidation.
On the basic simplistic level, the ruling, which includes scores of pages of references, deals with the simple legal question of authority. The Court told the government and the security services: the authority to exert pressure during interrogation, in our constitutional reality, must be anchored in law, which has passed through all the proceedings of public exploration and the law-making stages by the legislature. As you cannot point to the existence of such an empowering law – you do not have authority, over and above that which exists in the standard interrogation regulations. This means – your authority is not wider or deeper than that which the legislator granted to the normal police interrogator. The fact that you are dealing with the saving of human lives, by preventing a terror attack, which threatens every Israeli’s daily existence – does not give you more aggressive authority than that which the police are permitted to use towards a suspect, for example, of stealing a bicycle. You are bound by the law, as are all the governmental authorities – with no nuances.
“Defense of necessity”, which the Landau Commission believed could serve as the basis for “moderate use of physical or psychological pressure” – is just as it states: a spontaneous protection, personal, in hindsight, for those who are entitled to it in emergencies. It is absolutely not a basis for authorization, anchored in regulations, in advance. If you believe that the use of special interrogation methods are required and that you cannot do without them – please turn to the legislator and convince him to first lay down in law what needs to be laid down.
However, in order to explain the lack of authority, the Court does not require scores of pages of substantiation. Indeed, it is clear that underneath the exposed level of the question of authorization, the Court concealed a debate in a deeply hidden layer of values. This is a known “Baraki” technique, to stimulate the reader to delve and reveal archeological layers – there are those who would call them “shoe mines” – below the surface, to send an elegant message to all the interested parties in Israel and abroad. The Court raises the legality of deviating from the accepted interrogation procedures, both from the local aspect, as well as Israel’s international obligations. At the same time, it does the State a service: it spreads out all the considerations, the balances and procedures – a full repertoire, which must be considered before deciding – if it so desires – to commence with legislating procedures. As if it wishes to say: This option is ostensibly given to you, but do not hasten to take it. You must take into account, that at the end of the day, even after an obligatory public debate and parliamentary and public proceedings – we, the Court – will be waiting here patiently – and the legislation will first require our scrutiny. The final outcome is by no means sure – therefore, carefully consider whether the effort to legislate is worth the harm which will be caused. Carefully consider whether it is in Israel’s interests to be the first and only state, to include in its legislation, irregular official authorizations of this nature, which other countries, in acceptable hypocrisy, execute clandestinely. Beware not to eat the spoiled fish and then be banished, like lepers, from the community. The government took this warning, which in any event was accompanied by protests from all over the world, very seriously. A proposed law, which was prepared to return the legal situation to its previous status – remained hidden and shelved.
The ruling was unanimous and was acceptable to all nine Supreme Court judges. The voice was that of Barak, whose hand wrote the ruling. The silent consent was that of almost all the others. “Almost” – because only one judge – Yaacov Kedmi – who joined Barak – dared to suggest granting the State a transition period of one year, to enable it to adapt to the new situation. The Court had acted in this manner in similar cases – for example, in the case of recruiting Yeshiva youth into the army, which resulted in the Tal Law. But the majority decided not to facilitate any delay. It was as if the Court feared that granting any such delay, would serve as a basis for an additional request, and the explicitness of the ruling could be blunted. Indeed, as a result of the conclusion regarding the lack of a basis of legal authorization for such activity, it was natural not to allow the illegality to continue for even one second more. However, was the system so lacking in legal basis – and if so- how did it survive for so many years? Did the Court fall into the net of the policy of intervention, which the Court itself devised over recent years? Did the Court’s feeling of responsibility to protect the State from itself, overcome any other consideration here, knowing that in this sensitive sphere – the State – or any other State – is unable to make the right decision itself: And in security issues particularly, one cannot rely on the security authorities to deviate from their characteristics, in order to exhaust their authority completely. Because we, the Judges, are responsible for the present situation – regretting our silence over the years – there is no other way to extricate ourselves from this mess, which we entered with our eyes open, but to push the stone aside in one fell swoop, short and painful, which is preferable to ongoing unease. One way or another – on such a multifaceted issue, the eight Supreme Court Judges, who usually hasten to express divisive or complementary ideas on any inconsequential ruling, did not have one additional opinion, even for agreement.
When analyzing the defense of necessity, the Court granted the State a number of generous legal “concessions”. For example, it left open the significant question as to whether the legal defense would relate to employees who act on behalf of the State, as part of their national- public employment. But the Court’s protective attitude – there are those who would say patronistic – is particularly identifiable in the following example: Notwithstanding that the debate was held on a series of interrogation measures claimed by the petitioners – shaking, prevention of sleep, tightening of hand-cuffs, frog-kneeling, no conclusive proof could be found that these acts were actually performed. In its analysis, the Court referred to the petitioners’ claims, but did not actually confirm them. As if the Court stated: we are expressing our theoretical opinion on a theoretical issue. Israel’s critics and its ill-wishers worldwide, will not be able to make use of the ruling, to blame its leaders or the security forces and its senior officials, in international tribunals. In this manner, touching – but not touching, the Court gently dealt with the problematic connection between the principle and the deed, without unraveling it unnecessarily.
Was it possible to achieve a different outcome? Undoubtedly, the answer is positive. Just as during the twelve years which have passed since the publication of the Landau Report, there were no reservations to the ruling, (with the exception of legal literature) – the contrary is true – with regard to the rightness of the legal concept upon which it is based – it would not be unrealistic to presume that it is also valid in the ruling of the expanded composition of the Court. Moreover: only a few years before, when the issue was initially raised before the Supreme Court – its ruling was completely different. The petition was repudiated then, the main reason being the lack of a reason to intervene. The Court preferred a clear and detailed regulation of what is permissible and forbidden to the interrogator – as in the “open fire” regulations used by the I.D.F., to relying on their judgment in each case. One of the Judges in the present panel, took part in that ruling – and he could not give any explanation regarding the opposite outcome. The Court could have, had it so wished, used the conclusion between the rightness of the interrogation for the purpose of incrimination, gathering legal evidence, and indictment, for foiling purposes . The Landau Commission built a relatively good theoretical basis on this conclusion, (although not perfect) and we have already seen less spectacular legal constructions – which are considered to be acceptable if they match the supposed aim of the law. It is possible that there was room to consider – without the State going in this direction – disengaging from the concept of defense of necessity, which by its very nature is extremely limited and is not suited to interrogation situations and preferring to adopt, by judicial legislation, self-defense principles imbedded in the laws of limited conflict.
However, it would seem that the Supreme Court chose not to go into these conclusions, because the result which it wished to reach was clear and coherent. As it is said – the problem of quantity in this case became, over the years, a problem of quality. The continuance of the lack of legal clarity and the deep and constant intervention of the Supreme Court itself in the ongoing interrogation methods – is unreasonable. The process of eradicating the Landau conclusions was also done in an elegant manner. Alongside tributes and the use of quotations confirming the basis of its concept – the report was thrown into the waste-paper basket of history by the gentle surgical procedures of targeted assassinations.
Is the timing of the ruling significant? Ostensibly, it would seem that there was a connection between the timing of the ruling and the security situation. The petitions were presented and piled up on the desk of the Supreme Court, waiting for a decision, in principle, since 1994 – not less than 5 years before the final ruling. This was – particularly during the suicide bombers attacks in the mid-1990s – one of the most difficult phases experienced by the Israeli population. Chief Justice Barak (in an interview which he gave) refutes the presumption that the Court chose to delay its ruling until it believed that the security position had improved somewhat (it should be noted – for a very limited period). According to Barak, the delay in the decision emanated from disagreements between the judges – which, as mentioned, were not expressed in the ruling, and its desire to reach maximum agreement. However, it is reasonable to assume, that the Court also took into account the public’s ability and that of the security system, to accept the results of the ruling.
Did the ruling make matters easier or harder for the Israeli Security Agency? After a problematic transition period and developing a new fighting concept – it would seem that the ruling actually benefited the Services and its employees: The stain of suspicion of torture was removed and the criticism, which so many enjoyed employing against the organization and its employees – usually for political and so-called moral reasons – was also eliminated. This does not prevent them, in a kind of interesting cyclicality – from re-raising old contentions from the dark past – as a pleasant reminder to the veteran civil rights fighters, of their decisive success.
An additional troublesome question which many frequently ask: Does tying the hands of the security services harm their ability to efficiently foil terror attacks and their efforts to save Israeli lives? In actual fact, it has been proven that the Israel Security Agency interrogators, after a period of re-organization and adjustment to the new legal situation and the development of updated interrogation doctrine , continue to contribute a significant part in obtaining counter intelligence – and their success in interrogation assignments has apparently not been harmed significantly. It is not possible yet to completely rule out a situation, where the interrogation is not completed due to the limitations placed on it. This, then, is the type of question, which is difficult to answer conclusively as, even in the previous era, here and there, it became clear, in hindsight, that a certain interrogation had “failed” to obtain information imbedded in the suspect and had it been revealed in time, they could have foiled an attack and saved human lives.
The bottom line is that the ruling did not completely seal off the possibility of employing pressure during interrogations. It mentions that in circumstances of genuine need – the individual interrogator, who had used forbidden procedures during interrogation, would be entitled to the defense of every person who violates the law – if it transpires that there were justifiable emergency circumstances to save lives. The government’s legal advisor was invited to determine – and he did indeed determine – transparent regulations for personal judgment in appropriate situations. A study of these regulations raises the doubt, as to whether they offer the required certainty to an operational organization, which dispatches its men to execute operations bordering on illegality. It would have been appropriate, if the regulations had laid down full and proper decision-making procedures within the organizational framework, as a condition for not putting an interrogator, who acted on its behalf, on trial. It is possible, that this was the Court’s intent, when transferring the ball to the court of the government legal adviser. The government’s legal advisor’s special standing in this respect, could enable him to bridge the gap between defending the narrow “need” and the requirements of the complex intelligence interrogations.
As mentioned, the State was not placed in a completely powerless position – but the question as to whether the winding road, marked out by the ruling in the narrow space between the lack of authorization and defense, is the right institutional outcome – remained open. Should the State rely – as a permanent solution – on the resourcefulness of its employees, who will take risks and put themselves in danger of committing criminal offences – until the Attorney General will graciously “acquit” them of the crime which is ostensibly hanging around their necks. It is appropriate for a public servant to act according to a clear “toolbox” of authorizations given by his dispatcher – the State – and not on the basis of a presumption – assured as it is – that his crime will be forgiven in an appropriate situation, if he acted as he did.
The Court elected to end its comments on an apologetic festive note and perhaps even spiced with a pinch of lip-service. Judge Barak makes use of the words of Justice Landau – yes, again Landau – expressed several years earlier, in another instance:
“We had great difficulty in coming to a decision on these petitions. The truth is that from the legal aspect our path is paved, but we are part of Israeli society; we are aware of its tribulations and we live its history. We do not live in an ivory tower, we live the life of the State. We are aware of the reality of harsh terrorism, in which we sometimes find ourselves. The fear that our ruling will prevent the appropriate countering of terror attacks troubles us. But we are judges. We demand that our fellow-men act according to the law. This is also what we demand of ourselves. When we sit in judgment, we are also being judged. We must act according to our conscience and our knowledge of the law……we greatly fear that the Court will be perceived as having abandoned its rightful place and that it has descended into the arena of public debate and that our judgment will be received by part of the public with glee, whilst others will reject it totally and emotionally. In this respect, I see myself here, as one whose duty it is to rule according to the law in every case which is brought before the Court by law, it actually leaves me, with no other choice, knowing only too well, in advance, that the public at large will not pay attention to the legal reasoning, but only to the final conclusion and the Court’s standing to which it is entitled, as an institution, could be harmed due to the conflicts dividing the public. But what can we do, this is our role and obligation as judges”.
Does the fact that the gamble succeeded in this case prove the rightness of taking it ? Food for thought.
* Research Fellow – The International Institute for Counter Terrorism, Interdisciplinary Center Herzliya – Former Head of the Legal Advisory Division of the Israel Security Agency (ISA).