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On Torture, Israel Is Symbol to Both Sides

News Analysis

By J.J. Goldberg

With President Obama’s recent release of four classified Bush Justice Department memos sanctioning what most observers call torture, it was almost inevitable that Israel’s experience would soon become part of the debate.

But in this case, paradoxically, Israel has managed to serve simultaneously as a symbol of both harsh interrogations of the sort Bush administration supporters defend and high-minded anti-torture scruples.

The torture debate erupted on April 16, when the secret Justice Department memos were released. A week later, Philip Zelikow, a former senior Bush State Department official, published a New York Times opinion piece opposing torture and citing Israel and Great Britain as nations that “have a huge amount of painfully acquired experience” from years of interrogating Palestinian and Irish suspects.

“Neither of those countries,” Zelikow wrote, “can lawfully adopt the C.I.A. program revealed in the Justice Department memos; the Israeli Supreme Court has spoken to these issues in exceptionally eloquent opinions.” He was referring to a 1999 court ruling that outlawed the use of physical or psychological abuse during interrogation of terrorism suspects.

Much the same point was made, though in a more nuanced way, in a Forward editorial appearing online April 22. The editorial cited the 1999 ruling as an example worth emulating, but noted that it included “disturbing loopholes.” Most other commentators stuck with Zelikow’s celebratory tone. By coincidence, Justice Ruth Bader Ginsburg addressed the issue five days before the release of the Bush memos in the course of a talk on the use of foreign jurisprudence by judges in the United States. Citing the Israeli Supreme Court’s torture ruling as an example of foreign jurisprudence worth studying, Ginsburg summarized it in two words: “Torture? Never!”

Critics were quick to reply. The Israeli court actually “never said ‘never’ to torture,” wrote the executive director of the Association for Civil Rights in Israel, Hagai El-Ad, in an April 26 Huffington Post article titled “Torture: The Truly Painful Lessons From Israel.” The court had stated that torture was flatly illegal and that no official, high or low, was entitled to authorize its use. The court also said, however, that interrogators who felt obliged to use harsh tactics in emergency situations could bring up a “defense of necessity” after the fact when facing criminal charges. Soon enough, El-Ad wrote, “necessity became routine.”

In fact, the routinization took time. Allegations of torture declined sharply in the first few years after the court ruling, according to statistics kept by the Public Committee Against Torture in Israel. Complaints began to rise again in 2002, as terrorism peaked during the second Palestinian intifada, various Israeli news accounts confirm.

“Torture did decline after 1999, but it increased again when it seemed to the security services that not using torture allowed Palestinian terror groups to be more successful in recruiting and sending suicide bombers,” said Itai Sneh, an associate professor of history at New York’s John Jay College of Criminal Justice.

“When the severity of attacks increases, there is an increased tendency to use any means available to fight it,” said the Israeli-born Sneh, a torture opponent who is currently writing a history of torture. “Obviously, the Israeli security services think it is effective. Otherwise they wouldn’t use it.”

The Israeli experience has led some otherwise liberal Americans to embrace torture — or at least not oppose it — as a reasonable weapon against terrorism. Harvard University legal scholar Alan Dershowitz ignited a furor in January 2002, shortly after the September 11 attacks, with a book arguing for a limited legalization of torture. In a San Francisco Chronicle opinion piece, he wrote approvingly that Israel was the only democracy that had “ever employed torture within the law,” as opposed to surreptitiously. Legalizing torture, he wrote, brought it out of the shadows and allowed it to be regulated.

That view, which might be called the learn-from-Israel-and-get-tough argument, was a mirror image of the learn-from-Israel-and-don’t-torture viewpoint of Zelikow and Ginsburg. Anecdotal evidence suggests that the learn-from-Israel-and-get-tough view was common in private conversations in synagogues and around dinner tables in recent weeks. But it was largely absent from the public debate. One reason, it seems, was reluctance among Israel’s friends to put the Jewish state in the crossfire. Defense of the Bush policy was left largely to Republican loyalists and national security hawks.

Still, a few Jewish liberals edged close to the pro-torture view without quite endorsing it. Martin Peretz, the fiercely pro-Israel editor-in-chief of The New Republic, wrote a series of highly charged postings on his blog, The Spine, belittling critics of torture and lacerating their arguments. In one posting, he wrote that he would “not lose sleep over some terrorists being thrown against a supple wall a couple of times.” His bottom line, though, was that “there are no easy answers.”

The low profile seems to have worked. Israel was virtually invisible in the anti-torture arguments of the anti-war left this year, as April drew to a close. Only one persistent Israel critic, Philip Weiss, tried to tie the torture policy to Israel’s example, but the best he could do was to note that Peretz “speaks of torture as by no means necessarily a bad thing.”

Israel isn’t safely out of the line of fire, though. The torture debate is just a first step on a long road as America exorcises the bullying, blustering, unilateralist legacy of the Bush years. Israel has allowed itself to become closely identified in the popular mind with that discredited worldview.

A strong reminder of how close the identification has become appeared on April 22 in a student newspaper at Villanova University. A student, Sean Vitka, wrote a charmingly personal, utterly nonpolemical account of his difficulty finding a common language on torture and morality with a hard-line conservative. To flesh out his unnamed friend, he merely wrote that he was “a strongly pro-Israel and national security-minded intellectual.” Apparently, that was all he needed to say.

Contact J.J. Goldberg at goldberg@forward.com.

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