It's a classic moral dilemma: Imagine security services know a bomb is about to blow up in a crowded public space, killing and maiming possibly hundreds of people. But the plot can only be foiled if information is violently extracted from a tight-lipped terrorist suspect. What should you do?
As Americans grapple with the possibility of ticking time-bomb scenarios in the wake of Sept. 11, the once unthinkable is being openly talked about: torture. In a column titled "Time to Think About Torture," liberal Newsweek columnist Jonathan Alter mused whether torture would "jump-start the stalled investigation into the greatest crime in American history." Alan Dershowitz, normally known as a staunch civil libertarian, told Newsweek: "I'm not in favor of torture, but if you're going to have it, it should damn well have court approval."
On the unabashedly patriotic Fox News, where anchors sport American flag pins, anchor Shepard Smith introduced a segment by saying, "Should law enforcement be allowed to do anything, even terrible things, to make suspects spill the beans? Jon DuPre reports. You decide." Academic Jay Winick, writing in the Wall Street Journal, described how Philippine authorities tortured terrorist Abdul Hakim Murad into revealing a plan to crash U.S. jetliners and rhetorically wondered what would have happened if Murad been questioned by U.S. authorities, not Filipino ones. And conservative pundit Tucker Carlson opined on CNN's "Crossfire" that "Torture is bad. Keep in mind, some things are worse. And under certain circumstances, it may be the lesser of two evils. Because some evils are pretty evil."
Amid these calls to begin debating a practice formerly condemned by all sides as barbaric -- not to mention the Bush administration's plan to try suspected terrorists in military courts, where they would have far fewer rights -- it is worth examining Israel's experience. The Jewish state has been using torture for decades against Palestinians. And its experience should serve as a powerful warning against the temptation to use brutal interrogation methods.
Officially there is no torture in the Holy Land. But on any given day, and on many more days now that the intifada has shattered Israelis' sense of security, there may be a dozen people screaming in Israeli interrogation centers and in Palestinian jails, as Israelis hunt for Palestinian terrorists and Palestinians hunt for collaborators with Israel. "In Israel, torture is seen as regrettable but necessary, so the courts and the public close their eyes. In the Palestinian territories, there is a witch-hunt against collaborators so no one speaks up," said Mireille Widmer, a Swiss human rights lawyer.
Until recently, torture was widespread, routine, legal and institutionalized in Israel. Although the state always denied that it resorted to torture, interrogation methods known as "moderate physical pressure" were deemed acceptable, legal and necessary in Israel's fight against Palestinians it deemed security threats. These methods included violent head-shaking; relentless sleep deprivation; shackling of detainees to poles, desks and slanting kindergarten chairs in excruciating positions; beatings; exposure to extreme temperatures, incessant harsh light and blaring music; and threats to family members.
"Moderate physical pressure" was seen by politicians and terrorist experts as the perfect answer to a tough quandary: how to protect the lives of Israeli citizens while remaining true to the Jewish state's self-image as the only Western-style democracy in the Middle East. According to Boaz Ganor, director of Israel's Counter-Terrorism Institute, it successfully "breached the contradiction between effectiveness and the threat to liberty and democratic values."
Human rights groups shattered that myth, contending that "moderate physical pressure" unequivocally met all definitions of torture under international law (including the Convention Against Torture which Israel ratified in 1991) and seriously undermined the moral foundations of Israeli democracy. They filed a petition against the abusive methods used by the Shin Bet, Israel's domestic security force (also known as the General Security Services, or GSS) and partially won. In September 1999, a nine-judge panel of the Israeli Supreme Court unanimously outlawed torture (although the judges shied away from using the "T" word). The judges left the door open, however, for physical pressure in exceptional circumstances by giving interrogators the right to invoke the defense of necessity if criminal charges were brought against them.
Torture continued to be practiced even after the high court's ruling, but its frequency diminished dramatically. Then came the al-Aqsa intifada of Sept. 28, 2000. A year after the High Court verdict, the second Palestinian uprising started, pitting Palestinian stone-throwers, gunmen and terrorists against Israeli soldiers, settlers and interrogators in a bloody cat-and-mouse game in which about 900 people have died so far, four-fifths of them Palestinian. In this context, it was predictable that torture would come back in vogue, along with shatter-proof windshields, armored buses and guns, as a way of coping with danger.
According to a study published recently by the Public Committee Against Torture in Israel (PCATI), one of the nongovernmental organizations that petitioned the High Court in 1999, the Shin Bet has reverted to many of its old habits. After reviewing affidavits from Palestinian detainees and other material collected by lawyers and human rights workers over the past year, the Public Committee concluded that although some of the torture methods outlawed by the court have almost entirely disappeared, "each month, dozens of Palestinians" interrogated by the Shin Bet are still "exposed, to one extent or another, to methods of torture and ill treatment."
"After the High Court decision, there was a drop in the cases of torture. But affidavits have been pouring in since September 2000," said Hannah Friedman, the executive director of PCATI. "Our conclusion is that there is real use of methods banned by the high court."
Raanan Gissin, spokesman for Prime Minister Ariel Sharon, denied that torture is commonplace. "These so-called human rights organizations are laden with political motives and have their axes to grind," he said in a phone interview. "As a veteran warrior, I've been hearing these accusations for over 20 years. It's always the case that you hear about Israelis torturing the Palestinians, the poor guys, and nothing about the atrocities Palestinians commit against Israelis. We're a free, open society, a democracy. We have nothing to hide." Gissin contrasted that with the Palestinians, who he said used every means to further their cause and didn't stop at "fabricating stories about torture."
"When there are allegations of torture, we have investigative mechanisms to deal with them. The General Security Services are subjected to parameters and employ force only in the case of ticking bombs. There is an allowance for force but under the complete supervision of a board. And there's always the press. I'm not saying that violations don't occur. They do occur. But the numbers are small and we have mechanisms to deal with them."
But Israeli human rights groups and other organizations charge that the practice of illegal torture is far more widespread than the Israeli government is willing to publicly acknowledge. For example, the Palestinian Human Rights Monitoring Group, a well-respected group that mostly documents abuses by the Palestinian Authority, has direct knowledge of a case of torture that occurred this spring when one of its field workers, Abed Rahman Al-Ahmar, was arrested and beaten by Israeli security forces and later interrogated by the Shin Bet. On June 10, according to the testimony he gave his attorney, Al-Ahmar was shackled in tight handcuffs to a slanting chair for a whole day -- a method known as "shabeh" that was outlawed by the High Court in 1999. (The angle of the chair, often a kindergarten chair whose front legs have been sawed down, places enormous pressure on a detainee's lower back and stomach.) "Abed, being a human rights activist, knew it was illegal and protested. The interrogators just laughed," said Widmer, the human rights lawyer who works for the same organization as Al-Ahmar.
"There's a feeling of complete impunity -- especially now [with the Intifada]," said Widmer. When human rights groups petitioned the High Court in the name of Al-Ahmar, the court rejected the petition, saying there was no sign of torture "in spite of the fact Abed was obviously sick," said Widmer. "His wrists were all red and puffy and he vomited in the court."
The alleged torture of Al-Ahmar raises another troubling issue: the authorities' tendency to use torture, once it is allowed, against individuals who appear to have nothing to do with terrorism. As far as his colleagues can tell, Al-Ahmar is being held for membership in an illegal organization (he was once a supporter of the PFLP, a radical Marxist PLO splinter group) -- that is to say for political reasons, not for any operational terrorist-related reasons. (No charges have been brought against Al-Ahmar, still imprisoned today. He is in administrative detention, a measure that allows Israel to hold people without revealing evidence and without trial, under Emergency Laws that were originally adopted by the British in 1945 to fight the Jewish underground. Al-Ahmar has been adopted as a Prisoner of Conscience by Amnesty International.)
Although Al-Ahmar's case and dozens of others documented by human rights groups show that physical force is still commonly used by the Shin Bet, the High Court ruling has brought some significant changes. "Since the ruling, the situation has totally changed," said Yael Stein, a researcher for B'tselem, a prominent group that documents human rights abuse in the Israeli-occupied territories. "In the past, torture was routine. Everybody went through the same procedures. It was documented, approved by the high court, the Knesset, the government -- it was rooted in the system. Today it is less routine. There is no more shaking [which produces severe dizziness, brain damage, and possibly death]. Sleep deprivation is not as severe as it was. And numbers have dropped. Of course it depends on your definition of torture. There is ill-treatment and humiliation, but holding someone incommunicado [forbidding contact with family and lawyers] is not torture."
Ledgers from the era that preceded the High Court ruling make chilling reading: interrogators kept precise records of their actions, jotting down how many hours a person was forced to crouch, how long a person was tied to a small chair tilted forward with a filthy sack on his head, etc. They used standard equipment for torture and put detainees through well-defined stages of physical pain and mental anguish.
This bureaucratic self-assurance was the product of the Landau Commission, a 1987 governmental commission led by former Supreme Court justice Moshe Landau. The commission, which was created after several public scandals, clarified just what type of physical force authorities were allowed to use against Arabs. Before 1987, torture was widespread -- the practice began in the '70s -- and there was no specific legislation that narrowed down the use of force in interrogation. (According to PCATI head Friedman, before 1977 it was mostly the police (not the Shin Bet) who tortured Arabs.) Although the exact interrogation torture guidelines -- which the Israeli historian Benny Morris called "a document unique in the annals of modern Western judicial history" -- set by the commission remain secret to this day, the idea was that force would be used only in the case of "ticking bombs" -- i.e. when information about an imminent attack could save lives.
"The first obligation of the government is to guard the lives of others. There is no higher right than the right to live," said Ganor, the counterterrorism expert. After 1987, "torture was not allowed," he added. "What they did was moderate physical pressure. The Shin Bet was reluctant to use these abilities because interrogators were under judicial control. If the guidelines were breached, they could be brought to court. It was not a no-man's land where anything could be done."
In practice, however, the legal restrictions on the use of physical force by the Shin Bet did not hold. "Israel's experience shows you can't stop the slippery slope: They tortured almost all the Palestinians they could. It was in the system. The moment you start, you can't stop," said Stein, the B'tselem researcher. B'tselem estimates that before 1999, the security services used torture against 85 percent of the Palestinians they interrogated. The exceptional became routine. Some 23,000 Palestinians were interrogated between 1987 and 1994, the years of the first intifada. In 1995, the late Prime Minister Yitzhak Rabin admitted that violent shaking had been used against 8,000 detainees.
The "ticking bomb" scenario is the one most often invoked by Americans who argue that torture may be a valid weapon in the fight against terrorism. The problem, however, is that such a pure, morally unambiguous scenario rarely exists. "'Ticking bombs' are a very rare case," said Stein. "The secret services also admit it's very rare. It's almost impossible to stay within the lines of this pure case. What is imminent? An hour? Tomorrow? In a week? What if a neighbor knows someone who knows someone who knows about a plot? You cannot restrict torture only to pure 'ticking bombs.'" Palestinian detainees have often testified that interrogations stopped on Fridays and Saturdays, confirming the suspicion that torture had nothing to do with urgency.
The argument of necessity, which can still protect Israeli interrogators today if torture charges are brought against them, is technically flawed: Interrogators may not know if someone represents a ticking bomb and whether torture is justified (or defensible in court) unless they torture him into confessing first -- a form of evidence-gathering that bears an uncomfortably close resemblance to the witch trials of the 17th century. It is also morally absurd. "If everything is justified in order to preserve life, why stop at 'moderate physical pressure'? " asks Stein. "Why not do worse? Pull nails, rape sisters and wives? Shin Bet interrogators could do worse things -- but they don't. It's illogical."
Israel's attempt to limit torture to exceptional cases was further doomed by the failure of courts to uphold human rights and prosecute Shin Bet interrogators responsible for breaching the Landau Commission's guidelines. PCATI notes that over a period of seven years "not a single interrogator has been tried in criminal court, not even when detainees left interrogation wings with permanent physical or mental disabilities," nor when a Palestinian detainee, Abd Al-Samad Harizat, was tortured to death in 1995 (the guilty interrogator resumed interrogating after a short suspension).
According to PCATI, interrogators are still protected from external scrutiny and from the threat of criminal investigation today. (Complaints by detainees are collected by an agent who works for the Shin Bet, who naturally prefers the version of his colleagues. And, as Al-Ahmar's case has shown, the courts also prefer to close their eyes.)
"There is no doubt torture degrades society at large," says Stein. But he sees torture as only one element of the methods used by Israel to enforce the occupation of the West Bank and Gaza and protect itself from Palestinian ire. That list includes military sieges that punish entire communities, racial profiling and extra-judicial killings. All of these, he believes, have destructive effects not just on the Palestinians but on the Israelis who carry them out. "There are so many immoral things. Torture is just the more obvious and difficult to accept. When a man on reserve duty has to stand at a checkpoint for 30 days and enforce the closure on Palestinians, he also comes home brutalized by the experience. Occupation affects Israeli society in many ways."
Indeed, Stein believes the High Court's change of heart in 1999 came about in part because judges, who defended torture in petition after petition, "couldn't stand it anymore." Torture enlists the doctors who determine beforehand whether someone is fit for interrogation or needs to be treated with some restraint because of, for example, asthma, and violates their professional oath when they send patients back to the interrogation/torture room after perfunctory checkups.
The corrosion of values doesn't stop at judges and doctors. Torture still seems indispensable to a wide majority of Israelis. "There was a public outcry after the High Court ruling -- people were scared," says Stein. Politicians of all stripes, including former Prime Minister Ehud Barak, have vowed to pass legislation that would make physical interrogation methods legal again. "In most countries people would be ashamed of using such methods. Here they are proud of it. There's huge support for these methods," said Yael Stein.
Although Israelis can easily imagine themselves victims of a terror attack -- they seem to happen every week, everywhere, in restaurants, discos and train stations -- torture is different. "Israelis don't feel concerned by torture because it is something that will never apply to them but always to others, to Palestinians," says Widmer. "It's easier to torture people of a different race," notes Friedman. The most recent PCATI report on torture is full of religious curses and religious slurs used by interrogators to dehumanize Palestinians.
For Palestinians, shackled to desks or shaken senseless during Israeli interrogations, the impact is obvious too. "You destroy a man's soul and body for his whole life. He cannot work, marry, sleep at night. He has hallucinations. Torture is also a political way to destroy a people," says Friedman. Not surprisingly, the interrogation methods used by Israel have found their ways into Palestinian jails. "Palestinian torturers were first in Israeli jails. They have work experience, so to speak. And now they use the same methods [against Palestinian collaborators]," says Friedman.
Finally, there is the question of torture's effectiveness. Assessing this is difficult, if not impossible, for two obvious reasons: First, Israel still practices torture, despite officially outlawing it, and second, there is no way to know after the fact whether torturing a suspect would or would not have prevented a terrorist attack. But surely the burden of proof should be on the advocates of torture: If they cannot show that the practice's results justify its use, it should be rejected.
It would be difficult for an advocate of torture to argue that the payoff is worth the cost. The routine torture sanctioned by the Landau Commission did not stop bombs from going off in the past. And today, when "moderate physical pressure" is in theory outlawed, the security services boast impressive successes. Although bombs have killed scores of Israelis since the beginning of the intifada, security forces have deactivated bombs in watermelons, bags and garages, intercepted terrorists strapped with explosives and foiled numerous plots by killing bomb-makers and terrorist leaders in targeted military operations.
Ganor is amazed by the success Israel's security forces have had without being allowed recourse to force: "As a counterterrorism expert, I'm surprised to see that the Shin Bet manages even without moderate force. Detainees are very hard to interrogate," he says. "They are trained not to give away secrets and to resist Israeli methods. When one is released, he goes back to his group and briefs others. Hamas and Islamic Jihad have put out books and leaflets teaching people how to withstand interrogation -- even telling them which methods are allowed and not allowed so they can send their lawyers to court."
Sharon spokesman Gissin admits there is pressure to revert to the good old days when the usage of physical force during interrogations was less restrained. "Of course some people would like to give the security services more of a free hand. But despite the limitations, there's an impresssive rate of success so there's no need to use torture as such and we don't use torture as such."
"In some cases, in a very tense situation like we have now with daily terror alerts, restrictions create problems and a certain burden on the security services," said Gissin. "But despite that, within these limitations, the number of terror attacks foiled, stopped, scuttled, is far greater than the number of attacks that succeeded. I can't tell you if a suicide bomber succeeded because not enough pressure was used during someone's interrogation. But despite the guidelines, we have a very effective GSS and it's doing a tremendous job in terms of locating terrorists and preventing attacks."
Part of the reason for the agency's success is that it can rely on an excellent network of collaborators to collect information -- a luxury the United States may not have in its own war against terrorism. Israel, a much more powerful and wealthy country than its Palestinian opponents, has huge leverage to recruit collaborators by offering much-needed work permits, the right to be reunified with exiled family members, import licenses and money. (Collaborators tip off Israelis in their search for terrorists and help also to extract information inside jails by posing as friendly co-detainees.)
"A lot of experts feared that Israel's intelligence ability would suffer if moderate force was not allowed," says Ganor. "But at the end of the day, the Shin Bet manages to work without."
There is one last point to be considered: For every actual terrorist who spills the beans because of torture, who knows how many non-terrorists are pushed into deadly fanaticism by the experience of being tortured?
One of the Palestinian teenagers who were tortured at the Gush Etzion police station last winter made headlines in the Israeli press when he said, several months after he was released, that he now wanted to become a suicide bomber. He was arrested for throwing stones at settlers' cars, but he said the degradation and suffering caused by his interrogation made him consider terrorism.