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Two Countries, Two Paths on Torture

In the U.S. Senate’s landmark 600-page redacted summary of its still-secret report on the CIA’s use of torture, Israel is mentioned just once: Both America and the Jewish state, the document notes, share “striking similarities” in their attempts to deal with terrorism.

But a careful look at how each nation has actually balanced dealing with that threat and the countervailing pressures of democracy and human rights reveals two countries that have traveled along opposite trajectories: While America started off with an absolutist approach, totally rejecting any form of coercive interrogation for any reason, it ended up tossing out its own rules when terror struck home.

Israel, meanwhile, barely monitored or restrained its interrogators for decades. Then, when shocking public revelations forced authorities to acknowledge the reality of long-standing torture policies and practices, a gradual — and still incomplete — imposition of restraints brought Israeli practices under greater regulation. Over time, courts and governments limited and defined the allowed scope of torture as a supposed means of achieving real-time intelligence.

Today, both countries hew to strong prohibitions against torture in principle. But in Israel, the practice nevertheless remains widespread, according to human rights advocates. And in America, a presidential ban on torture, though apparently effective, remains subject to rapid reversal with the arrival of a new president — or even if the current one were to change his mind. Neither country has pursued prosecution of individuals who ordered or implemented torture, which might act as an actual deterrent.

Yet, if only for practical as opposed to ideal ethical reasons, the need for some sort of regulation is clear to the governments in both countries.

“The lesson is that interrogators are more likely to obtain useful information if they use conventional techniques and don’t rely on coercion, and I believe the Israeli experience supports this approach,” said David Irvine, a retired brigadier general who taught prisoner interrogation and military law at the U.S. Army Intelligence School.

The Senate Intelligence Committee report — relying largely on the CIA’s own internal documents — provides, in shocking detail, a picture of America’s conduct since it embarked on what was dubbed the war against terror, following the September 11, 2001, attacks on the United States.

To the American public, the report, released December 9 of last year, offered a first, unfiltered look at the actions taken in their name in scores of cases under the general description of “enhanced interrogation measures”: the infamous waterboarding, forced rectal feeding and hydration of prisoners, sleep deprivation, mock executions, threats to sexually abuse female family members; hypothermia, and many other acts clearly defined as torture.

The Senate report also found a pattern of deception by the CIA, which provided the administration and Congress with false information regarding the scope of the torture in which it was engaged and false claims about the techniques yielding actionable information. Citing the CIA’s own internal evaluation, the report found the torture yielded little, if any.

Committee chairwoman and California Democrat Dianne Feinstein said that the report showed that the CIA acted “in violation of U.S. law, treaty obligations and our values.”

Critics, mainly on the Republican side, argued that the report did not provide a full picture since CIA operatives were not interviewed directly. Senate investigators did not, in fact, conduct such interviews to avoid interfering with a parallel investigation then being pursued by the CIA’s own inspector general. But in preparing its report the committee’s staff relied on transcripts of the interviews the inspector general conducted with CIA interrogators and other officials.

For all this, there was little dispute about the report’s factual findings.

In a fact sheet presented to the Senate committee, the CIA argued that detainees who underwent torture provided valuable information, but the agency said it could not determine whether this information could have also been achieved without harsh interrogation techniques.

For Israelis, much of this debate has already taken place. And whether despite or because of this, some of the methods described in the Senate report remain in use by interrogators of the Shin Bet, Israel’s domestic security and intelligence agency, even today. These methods include sleep deprivation, psychological pressure and binding prisoners in stress positions for hours while interrogating them. A court ruling has explicitly banned other once common practices, such as beatings and forceful shakings from behind. And some of the CIA’s most shocking techniques — namely waterboarding and rectal feeding — have never been part of the Israelis’ interrogation toolbox.

In this respect, the measures employed by Israeli interrogators might be seen as less severe at their outer limits than the CIA’s practices. But the techniques Israeli interrogators do practice, several Israeli human rights activists say, are much more widespread.

“The Supreme Court concluded that some of these methods are not legal and should not be used systematically,” said Noga Kadman, a researcher with B’Tselem, an Israeli organization that monitors human rights in the Palestinian territories. “Still, the conditions that these people under interrogation go through, at least we can say they are against the international conventions.”

The Senate report found that a minimum of 39 out of the 119 CIA detainees were subjected to “enhanced interrogation” measures, though it noted the likelihood that there were others.

Efrat Bergman-Sapir, director of the legal department at the Public Committee Against Torture in Israel, observed, “Our routine is about 100 interrogations every day.” She could not say how many of these detainees had been subject to torture. But according to human rights monitors, many interrogations include harsh tactics.

In a statement issued in June in response to a report from Bergman-Sapir’s group, the Shin Bet vehemently denied “any use of unauthorized methods.” Prisoners can file complaints with the Justice Ministry when they believe illegal tactics have been used on them, the statement noted. That ministry then decides whether the “necessity defense” justified the use of such force.

Of more than 750 such complaints reviewed by the Justice Ministry over the past decade none has led to any action against a Shin Bet interrogator. The official who currently reviews these complaints is a high-ranking army officer on loan to the Justice Ministry.

For America, the issue came to the fore in 1988, when the country spoke loudly and clearly against torture in any form as President Reagan signed the International Convention Against Torture and Inhuman Treatment or Punishment. Torture, Reagan wrote to Congress, requesting ratification of the treaty, “is an abhorrent practice unfortunately prevalent in the world today.” The treaty whose signing he brandished spoke in absolutes, declaring that “no exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency,” could be used to justify torture.

The term “torture” itself was defined expansively in the treaty as “any [government] act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” to extract information or otherwise coerce him.

Yet when Senate lawmakers ratified the treaty six years later, they included “reservations” that introduced many loopholes to the treaty’s strong language. And following the 2001 terror attacks and America’s decision to wage war against Afghanistan and Iraq, Bush administration officials seized on those reservations to all but gut the treaty’s spirit.
In many ways, the very meaning of the word “torture” emerged redefined. An August 2002 Department of Justice memo to the president’s White House counsel cited the Senate’s 1994 reservations to undo the treaty’s definition, which stressed the illegality of inflicting pain or suffering to extract information in interrogations.

“The treaty’s text prohibits only the most extreme acts” of torture, the memo advised the president. “Certain acts may be cruel, inhumane or degrading, but still not produce pain and suffering of the requisite intensity” to fall under the treaty’s definition of torture.

Citing the Senate’s ratification reservations, the memo also argued that despite the international treaty’s absolute ban on torture in all circumstances, “Congress allowed the necessity defense to apply when appropriate.”

Justified? An Israeli activist demonstrates one of the techniques allegedly used during interrogations in Israeli prisons. Image by Getty Images

A CIA memo providing retroactive authorization for harsh interrogation methods followed.

With these legal justifications in hand, the CIA launched its secret interrogation program in secret prisons overseas. Formal guidelines detailing the allowed practices were not issued until January 2003, after the death of one detainee and with 40 men already held in secret prisons. Nineteen of the 119 individuals the CIA ultimately imprisoned died in its secret jails, including some whom the agency later determined had been wrongfully held.

Dissent within the DOJ, congressional actions and increased media scrutiny eventually led to the winding down of the program in 2005 until its official end in 2008.

On taking office in 2009, President Obama signed an executive order revoking all memos and directives allowing the use of torture. But Obama also decided against investigating or prosecuting those involved in the harsh interrogation techniques of the Bush years.

Israel’s torture story started from the opposite end of the spectrum. Initially, the Shin Bet operated with little to no oversight. But the 1984 killing of two terrorists after they had already been clearly captured and subdued exposed tactics the Shin Bet had never before been forced to acknowledge publicly. Popular reaction to these revelations was muted, since the victims were terrorists. But the issue hit home much harder for many Israelis in the 1987 case of an Israeli army officer whom interrogators tortured. The officer, a member of the country’s Circassian minority, admitted to treason he had never committed after being subjected to sleep deprivation, cold showers, spitting, forced nudity, hair pulling, beating and humiliation. The Supreme Court reversed his treason conviction after he had spent more than seven years in prison and granted him financial compensation.

Set up in response to the outcry stemming from these episodes, the Landau Commission, headed by a former chief of Israel’s Supreme Court, defined new rules that allowed harsh interrogation techniques while at the same time limiting them. Landau’s guidelines allowed “moderate physical pressure” in certain cases in which officials decided it was necessary to use these methods to stop a terrorist attack.

Human rights groups protested the latitude this gave interrogators, and eventually, in 1999, a new case involving torture reached Israel’s Supreme Court. The landmark decision delivered by the court ruled out several of the methods previously approved by Landau, including forced body shaking and certain types of movement restriction. But citing the extreme contingency of a “ticking bomb” in which lifesaving information can supposedly only be obtained by physical force, the court left open an after-the-fact defense of “necessity” for interrogators facing legal action.

The Shin Bet’s acceptance of this ruling seemed to have a strong impact, initially. “After the 1999 court decision, the frequency of abuse and mistreatment went down sharply, almost overnight,” Sarit Michaeli, a spokeswoman for the Israeli human rights group B’Tselem, told the New York Jewish Week in 2006.

But over time, Israeli activists claim, the loophole provided by the Supreme Court reopened the door to widespread use of torture. B’Tselem is now investigating the use of torture in interrogations of Palestinian detainees in Shikma prison in southern Israel. Testimonies collected from 116 detainees interrogated there in the past year detail cases of lengthy chaining to a tilted chair, sleep deprivation, verbal abuse and sexual threats directed at female family members.

From the beginning, these methods have been justified as critical in “ticking bomb” situations. But human rights advocates have long questioned whether this scenario actually occurs with anything like the frequency authorities claim. Critics cite an undisputed report issued by B’Tselem in 1998 that found that interrogators involved in these interrogations stopped their work on Sabbath weekends.

“When the interrogators leave for the weekend, most detainees are able to relax in their cells until Sunday,” the report noted. “The lethal bomb [that] ticks away during the week, ceases, miraculously, on the weekend, and begins to tick again when the interrogators return from their day of rest.”

It is not known if Israeli interrogators continue this practice today.

Bergman-Sapir said most of the complaints they have submitted rcently involve sleep deprivation — one of the most excruciating means of punishment, according to medical researchers — and threats of rape.

“Taking into account the Palestinian cultural context,” Bergman- Sapir said, “the interrogators use these methods in order to severely humiliate him and break his spirit.”

Activists say that the use of harsh methods has increased whenever tensions between Israel and the Palestinians reach a boiling point, although Shin Bet interrogators refrain from using techniques banned by the Supreme Court. Recently, Bergman-Sapir said, the spike in reports of torture coincided with the kidnapping and murder of three Israeli youths this past summer.

But Amos Guiora, a professor of law at the University of Utah and co-director of its Center for Global Justice, argues that the Israeli system has proved to be effective. “The Shin Bet has clearly internalized the limits,” said Guiora, who served for 19 years in Israel’s Judge Advocate General’s Corps.

The Israeli idea of setting limits to interrogators, he believes, could be the most valuable lesson the United States can learn from Israel’s experience. When working on his 2008 book, “Constitutional Limits on Coercive Interrogation,” during the tenure of the second President Bush, U.S. soldiers who had witnessed waterboarding in Iraq approached Guiora. They told him their hope was to see the administration produce detailed guidelines instead of leaving the question of whether to use such techniques to their discretion. “They wanted limits imposed on them,” he said.

But can the Israeli model, which restricts but does not outlaw torture, be emulated by the United States?

Following the September 11 attacks, Harvard Law School professor Alan Dershowitz proposed introducing “torture warrants,” a permission granted by the court to use approved means of torture in order to obtain critical information in ticking bomb situations. Dershowitz argued that the Israeli experience proved the effectiveness of moderate physical pressure. “Many tongues were loosened by this process and several terrorist acts prevented,” he wrote, without citing specific cases. Dershowitz also argued that regulating torture would lead to less abuse than avoiding the question altogether. “A sterilized needle underneath the nail might be one such approved method. This may sound brutal, but it does not compare in brutality with the prospect of thousands of preventable deaths at the hands of fellow terrorists.”

Israeli human rights advocates question the whole premise of the ticking bomb scenario, and the U.S. Senate report rejects the efficacy of torture as the CIA applied it in what it described as such situations.

Irvine found the idea of regulating torture problematic. “It leads to pressure creep,” he said, explaining that once certain forms of coercion are allowed, it becomes difficult to draw the line.

“I acknowledge that there are people who think there is a gradation in coercive methods,” Irvine said, “but from my perspective, you can’t have an enforceable standard that applies to 55 shades of gray.”

Contact Nathan Guttman at [email protected] or on Twitter, @nathanguttman

Contact Josh Nathan-Kazis at [email protected] or on Twitter, @joshnathankazis

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