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The Role of National Courts in Preventing Torture of Suspected Terrorists
II. The Interim Decisions in Context
The three interim decisions can be seen as offsprings of the Report of the Landau Commission of Inquiry into the Methods of Investigation of the GSS Regarding Hostile Terrorist Activities issued a decade ago.6 Until October 1987, the GSS followed what Michael Reisman calls an `operational code': unwritten conventions which permitted the GSS to use force while interrogating suspected terrorists and later to deny it in courts, thereby protecting the `myth system' of legality.7 The Commission deliberately shattered this myth.8 After its Report it was no longer possible to deny that GSS interrogators were instructed to follow secret guidelines (the Guidelines) which entailed, according to the Commission, `a modest measure of physical pressure' while interrogating suspected terrorists.9
Despite several petitions against the Guidelines and against specific methods brought during the past decade, the Court managed to defer its decision, hoping that in the meantime the legislature would address the matter.10 At first the Court rejected a general petition to declare the Guidelines void.11 It reasoned that such a general examination, divorced of concrete circumstances, would amount to second-guessing the Landau Commission, and this would be beyond the proper role of the Court. It emphasized that the Guidelines were only the Commission's interpretation of the defence of necessity under the Israeli Penal Law, and did not change the law. The Guidelines notwithstanding, any GSS action could be subjected to judicial scrutiny on a case-by-case basis, examining all the particular circumstances which are crucial to evaluate whether the defence of necessity applied. Since an abstract examination of the Guidelines would thus not resolve the issue, the Court preferred not to comment on the legality of the Guidelines.12 The Court postponed judgment on another general petition which raised serious doubts concerning the source of legal authority of the GSS administration under the principle of ultra vires. This petition, which was lodged in late 1994, is still pending in Court.13 A more specific petition, addressing specifically the method of `shaking' (a method not among those approved in the Landau Guidelines), which was lodged in June 1995, is also pending.14 This policy of deferring judgment on these petitions created an ambiguous legal situation in which the Guidelines were neither sanctioned nor condemned.
While it was technically possible for the Court to defer judgment on the general questions by not scheduling the hearings, it could not do the same with the detainees' petitions to end their interrogations, during which, they claimed, they were being tortured. In several cases, the Court issued interim orders precluding the GSS from using force during the interrogations.15 The orders were issued after the GSS noted that the interrogation had been completed, and that there was no need for further interrogations. No further legal action was taken in those cases after the issuance of these interim orders, and therefore no final judgment was given on the legality of the measures used during those interrogations. These decisions did not clarify the legal status of the interrogation methods, but did at the same time relieve the immediate suffering of the petitioners.
This legal standstill was shaken in 1996. On three occasions, the GSS decided to oppose the Court's issuance of interim orders.16 Citing pressing operational needs, it requested a judicial `green light' to continue interrogations. The Court tried to retain ambiguity while granting permission to continue interrogations. Its interim decisions in the first two cases, Bilbeisi17 and Hamdan,18 allowed the interrogation to continue without any restrictions on the methods used, but reserved judgment on the legality of such methods (under the defence of necessity) to a later stage, when the main arguments would be made. In each case, the Court's decision was based on the fact that the petitioner had confessed to being a terrorist, member of the extreme Islamic Jihad group, and on the GSS's substantiated suspicion19 that the detainee had extremely vital information which, if procured, could save human lives. The Court cautioned that permission to continue the interrogation did not entail permission to act against the law.
It was only in the third and final case of the 1996 triad, the Mubarak decision,20 that the Court came as close as condoning a number of methods of interrogation and thereby approving a significant part of the Landau Guidelines. This development took place during a hearing of a detainee's request for a temporary injunction against the continuation of his interrogation, when the GSS insisted not only that the request be refused but also that specific methods be continued. The GSS thus invited the Court to share responsibility for the use of these methods. Thus, for the first time, the Court examined specific methods used in GSS interrogations. These methods did not involve the direct infliction of pain. They did, however, subject the detainee to rather harsh conditions in the process of interrogations. As the succinct opinion describes, during a so-called `waiting period' between interrogations, the detainee is seated on a low chair, his hands handcuffed in a painful position, his head covered with a sack which reaches his shoulders, and loud music is sounded. Consequently, the detainee is unable to sleep in this `waiting period'. The GSS did not admit that these methods were aimed at breaking the detainee's obdurate will. It insisted that there was no `active sleep deprivation', and explained that hooding and loud music were necessary to prevent communications between the detainees present in the same room, and that the low chair and handcuffs were necessary to prevent them from attacking the interrogators. The waiting period was explained as necessary for security and because of the pressing need to prevent loss of life, when a small number of interrogators must interrogate many detainees at the same time.
The Court did not strictly scrutinize these explanations. Its brief decision accepts the rationale of the `waiting period', a rationale which renders the variety of other methods almost self-explanatory.21 One gets the impression that only minimal deprivations, strictly required to facilitate the interrogation, are used. But as revealed in the schedule of the detainee's interrogation, which was attached to the GSS's response, it was the `waiting period' itself which constituted the arena for weakening the detainee's resolve.22 This schedule detailed the time spent in the cell, the interrogation room and during the `waiting period'. The `waiting period' extended at times to hours, sometimes more than ten hours, and one time more than 26 hours. `Waiting' would be followed by much shorter periods of interrogations, sometimes even by rest periods in the cell. With the questionable rationale of the `waiting period' left intact, the Court determined that hooding, which did not deprive the detainee of normal breathing and proper ventilation, did not cause `pain which constitute[d] torture'. The Court did, however, prohibit painful shackling. Subject to this last caveat, the Court refused to issue an interim injunction preventing the continuation of the interrogation.
Significantly, in all its decisions, the Court failed to make any reference to the international standards regarding the prohibition on torture. Had it wanted to approve GSS practices, it could have endorsed the Landau Commission's assertion that its Guidelines were commensurate with the international standards.23 This would not have been the Court's first disagreement with a significant part of the international community on the interpretation of international norms. Instead, the Court referred only to Israeli domestic law which could exonerate interrogators acting out of `necessity'.24
Why did the Court prefer the doctrine of necessity over the international standard? One possible answer is that the Court wanted to dodge the flat ban on torture and legitimize GSS practices. This was the conclusion of CAT, which sharply criticized the Court.25 It is, however, possible to offer a different answer, which would attribute to the Court an effort to curtail GSS brutality through domestic doctrines of penal law. The difference between the Court's attitude and CAT's calls for a comparison of the vices and virtues of the two approaches. Such comparison requires attention to three distinct dimensions. The first dimension is moral, and relates to the appropriateness, under exceptional circumstances, of the use of force during interrogations of suspected terrorists in order to avert imminent danger to life and limb.26 The second dimension is institutional, and is concerned with the interrogators' potential abuse of powers by the use of unnecessary force, or against innocent people, and the possible institutional checks against such abuse. The third dimension is legal, and relates to the proper means for implementing the conclusions gleaned from the discussion of the two previous dimensions.
6 Commission of Inquiry into the Methods of Investigation of the GSS
Regarding Hostile Terrorist Activities, October 1987. Excerpts of the official
English translations appeared in 23 Isr. L. Rev. (1989) 146.The same
volume carries a symposium on the Commission's report.
7 W.M. Reisman, Folded Lies (1979) Ch. 1.
8 Rejecting this as `the hypocrits' way', the Commission asserted
that `[t]here [was] no alternative but to opt for the ... truthful road of the
rule of law', supra note 5 at 184.
9 Ibid. These measures may be resorted to only after
non-violent psychological pressures do not attain their purpose
(ibid).
10 A draft bill has been prepared by the Ministry of Justice but is
yet to be introduced to the Knesset. The bill was intended to formally describe
the status and authorities of the GSS, which has so far operated under the
residual authority of the Israeli government, as well as to address the thorny
issue of interrogation methods.
11 Salakhat v. The Government of Israel, 47 Piskei-Din
(Judgments (of the Supreme Court)) (4) 837.
12 Justice S. Lewin emphasized that judgment on the legality of the
Guidelines is being reserved (ibid, at 845).
13 HCJ 5100/94 The Public Committee against Torture in Israel v.
The Government of Israel (lodged 7 December 1994).
14 HCJ 4054/95 Association for Civil Rights in Israel v. The Prime
Minister of Israel (lodged 27 June 1996).
15 For a discussion of these cases see Y. Ginbar, `The Face and the
Mirror: Israel's View of its Interrogation Techniques Examined' (LLM
Dissertation, University of Essex, 1996).
16 See the cases cited supra note 1.
19 In the Bilbeisi case, supra note 1, the detainee
provided external evidence proving his participation in a particularly bloody
terrorist attack.
21 On the `waiting period', as reflected in GSS documents presented
to the Court, see Ginbar, supra note 14, at 30-45.
22 The schedule appears in the report of B'Tselem, Legitimizing
Torture (1997), at 23-25 (see also
http://www.btselem.org).
24 For a discussion of the appropriateness of using the necessity
defence see infra text to notes 70-74.
25 Supra note 2, at Section 7.
26 My discussion relates only to the use of force in such
interrogations. It thus excludes discussion of interrogations of other people,
or interrogations aimed at investigating previous crimes or at obtaining
confessions.
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