This victory photo was taken in the Supreme Court building in Jerusalem, September 6, 1999. My collection of court photos contains very few victory shots. I have many more images of myself and other attorneys leaving the courtroom with heads bowed, and those who look closely may also see the sliver of a tear in the eye, and the tongue sputtering something like “We’ll request another hearing,” or “retrial,” or something else equally hopeless.
Many of my petitions to the High Court of Justice concerned torture, and elicited a uniform response from the state: The Shin Bet security service does not use torture. And what was the point of appealing? The interrogation in question, after all, had already concluded. From the day the interrogee’s family comes to a lawyer, and the lawyer prepares a petition worthy of being submitted – even in the case of a particularly speedy lawyer – and the petition is handed to the secretariat of the Supreme Court, and a date is set to hear the petition (if it’s not rejected outright), about six days go by. That’s enough time for the torturers to do their work and extract a true confession or a false one. My experience says that the interrogee usually cracks on the second or third day of torture, and generally because the interrogators keep saying that they won’t stop until he gives them the information he has in his possession, and because of the threats about what they will do to his wife – who is often taken into detention and made to walk past the interrogee’s cell, even if she herself is not suspected of anything.
In some cases, his elderly father is brought in, and the interrogator tells the detainee: Look how your father is suffering, you can put an end to that just by talking. It’s not the “banana” and “shabah” postures that break the interrogee’s will, it’s his anxiety for his father or his wife, coming on top of three nights of not sleeping. The interrogators are well aware that the battle against physical torture is often a misrepresentation, and that prisoners break because of lack of sleep and under psychological torture, which leaves no marks and so doesn’t appear in the clinic’s log.
Each of us, every lawyer, has heard a story like this from our Palestinian clients. The head was covered for hours with a sack reeking of urine and other excretions. They were forced to stand in the shabah posture – a term of uncertain etymology, but which definitely requires bending the back concavely. Etymologists of local Arabic are probably right to maintain that “shabah” is the way in which wild horses are tied down. Or they were forced to sit on a small chair, something like a kindergarten chair, with the seat tilted downward at an angle of about 30 degrees and the person constantly sliding down and having to pull himself up, because he’s tied to the chair, and the downward motion tightening the rope to the point of drawing blood.
I saw the chair with my own eyes in a military court session presided over by a rare judge, Shlomo Izacksohn, who is today a magistrate’s court judge and head of the parole committee in the Central District. In a court hearing, the defendant testified about the low chair that’s tilted forward. The prosecutor denied that the Shin Bet had any such chair, and the Shin Bet interrogators who were present rejected the allegation with a snort, saying: We have regular chairs, we don’t have children or children’s chairs.
By chance, I knew that the Shin Bet’s interrogation facility was located on the other side of the courthouse wall – this was at a military base in Ramallah, as best as I can remember – and I suggested to the judge that we go to the facility and see for ourselves whether there was a small chair there.
It’s a big deal for a judge to leave the courtroom, but IDF Judge Izacksohn said, “Why not?,” and I’ll never forget him for it. The judges, the prosecutor and I – the defense counsel – along with the defendant, left the courtroom and knocked on the adjacent gray door. “Who’s there?” an irritated voice asked. “Judge Izacksohn,” the judge replied. Silence fell on the other side of the door. With a creaking sound the door opened, and we entered what appeared to me like a parallel universe, which until then I had only heard about from clients.
In the interrogation facility, the Shin Bet is king, and no one, not the Prison Service and not the Israel Police, is allowed in without permission from the Shin Bet person in charge. As the Shin Bet personnel gawked, the defendant led us through the building until he reached the interrogation room. In it was the chair in question, which was suitable for five-year-olds and whose seat was tilted forward, exactly as he’d described. We stood around the chair in a circle, as though it was a museum exhibit – which maybe it will be in a future Shin Bet museum. I think Judge Izacksohn sat on the chair, or maybe I just dreamed that. In any event, I sat on it and grasped the intensity of the suffering and pain a children’s chair can inflict on an interrogee who’s made to sit on it for an hour or a few hours. Sitting on a children’s chair is a more vicious method of torture than having one’s fingernails ripped out.
Back then, Shin Bet interrogations were not recorded in video or audio, so as to protect the confidentiality of investigations, but rather were documented in memoranda of a few lines that noted the interrogator’s alias, the interrogee’s name, the time the interrogation started and the time it concluded. Sometimes the type of sandwich that the interrogator gave the interrogee was also noted. In these records, the word “break” or “rest” occasionally showed up. Clients would relate that it was during these rests or breaks that they were subject to the most violent methods: shaking, slapping, blows to the head and being hurled into a wall. When the interrogation ended, after 30 hours, the interrogee was sent to his cell, often with a stinking bag on his head, where he would be deprived of sleep by way of blaring late-1990s disco music. It’s noteworthy that these days interrogations, which still are not recorded, are documented in somewhat more detail, sometimes four pages that sum up a 15-hour interrogation.
Be that as it may, in 1999, the Public Committee Against Torture in Israel submitted a bold petition to the High Court of Justice, requesting that the court prohibit all forms of torture in the interrogation of Palestinians suspected of security offenses. The petition was joined by other petitions that had been waiting for years for their turn, including one that was submitted by Andre Rosenthal on behalf of the family of Abdul Samad Harizat, who according to a forensic report had died of a brain hemorrhage caused by his head having been shaken so violently that his brain smashed against his skull.
The state was represented by Shai Nitzan, now Israel’s state prosecutor, who looked like a high-school student playing hooky. As soon as he launched into his argument, however, it became clear that he was the best lawyer and the most brilliant rhetorician ever to serve in the state prosecution’s High Court of Justice unit, with the possible exception of the late Mishael Cheshin, who became deputy president of the Supreme Court. These days, in Nitzan’s somewhat bland position as state prosecutor, his oratorical skills are not on display.
Nitzan surpassed himself in arguing the case for torture. Suddenly it turned out that the state was not addressing the factual question of whether the Shin Bet uses torture, but a weightier and more challenging question: Is torture essential in the war against terror, an adversary that has no rules and no limits? In my view, this was the first time anywhere in the world that a state sought to validate torture and argue that it’s an operational necessity. Shai Nitzan did not claim that torture was nonexistent; rather, he did everything in his power to persuade the court that, without the existence of torture in the toolbox of Shin Bet personnel, we would be defenseless against the rampant terrorism of that period, the late 1990s.
His argument departed from regular rhetoric. Nitzan tried to present photographs – in what can only be called a pornography of death: images of bodies and body parts from terror incidents, including the horrific attack on the eve of Purim in 1996 at the pedestrian crossing of Dizengoff Center, a large shopping mall in central Tel Aviv. It was there that a Hamas man wearing a 20-kilogram explosive belt, augmented by flying nails to heighten its destructive effect on humans, blew himself up. Thirteen people were killed and 125 wounded in the attack, most of them kids on holiday from school, some of them in costume for Purim. My memory is that the judges declined to peruse the bloodcurdling images.
The United States later informally put forward an argument similar to Nitzan’s, after the destruction of the World Trade Center. There, too, the argument was not sustained, apparently due largely to the fact that studies show that torture does not necessarily produce truthful confessions and that the interrogee will tell the interrogator what he wants to hear just to end the physical torture. The images of torture from Guantanamo did not help get the argument accepted internationally, but instead stirred revulsion and disgust. Torture isn’t photogenic – cowed people wearing orange overalls, beaten, voided of free will and in thrall to interrogators don’t make a good impression.
Now comes the twist in the plot. Shai Nitzan had prepared a surprise for us. It turned out that torture wasn’t an improvisation of the interrogators but had been was organized and regulated at the directives of a secret ministerial committee. The directives were precise: how much physical pressure was allowed, for how long, under what circumstances and who was authorized to approve the use of special methods. And all of it under the ridiculous heading of “moderate physical pressure,” which has become a well-worn phrase.
The Landau Commission report of 1987 had exposed the bureaucracy of torture. It wasn’t the interrogator who bore personal moral responsibility, the report revealed; responsibility was permitted to lie with the faceless, personality-less system. As a devotee of Hannah Arendt and the “banality of evil,” I saw the bureaucracy of torture, the banality of torture, as the most meaningful Achilles heel of the system. In my arguments to the court, I reiterated the phrase “bureaucracy of torture” several times, and made reference to the danger in wresting the personal moral aspect from the use of torture. Torture without a face, perpetrated by the Shin Bet professionals. I addressed my remarks directly to Supreme Court President Aharon Barak, as I knew his personal biography and how he survived the Holocaust. My parents were also Holocaust survivors, their entire families perished in the Holocaust, and I spoke to him as Holocaust survivor to Holocaust survivor, about the dreadful impact of the erasure of the moral aspect from the use of torture and about how torture had become a matter of rules and procedures and a hierarchy of authority. Only by creating a bureaucracy is it possible to recruit for torture normative individuals who are not aware of the significance of their actions.
Following the arguments, we awaited the judgment with a feeling of hope. The secretariat of the Supreme Court informed us that the decision would be handed down on Monday, September 6, 1999. The date seemed a bit odd, because many knew that until the end of September, President Barak would be in residence at Yale University, as he was every year at this time. And, indeed, when we, along with dozens of media representatives entered the courtroom, we saw Justice Eliahu Mazza presiding, who announced in a dry tone that the justices had ruled unanimously that the Shin Bet was not permitted to use torture, in the absence of an explicit stipulation in the law permitting its use, and that henceforth such means would no longer be used. Justice Jacob Kedmi was of the opinion that the judgment should not take effect for a year, in order to give the Shin Bet time to organize.
The victory photo entered the public domain. From left to right: Dan Yakir, then and now the legal adviser to the Association for Civil Rights in Israel; Lea Tsemel, the veteran attorney who has represented hundreds of Palestinians in her career; your faithful servant, 18 years younger than I am today; Andre Rosenthal; and Eliahu Avraham, who represented Hamoked: Center for the Defense of the Individual.
But our joy was premature. Subsequently, the court ordered the establishment of Matben (the Hebrew acronym for “Review of Complaints of Shin Bet Interrogees”), an authority that is charged with carrying out preliminary checks of complaints filed against Shin Bet interrogators. A weird move, since it’s not clear why it’s necessary to have such a filtering mechanism for complaints, especially when the filter is in actuality a fortified dam that doesn’t allow even one claim to proceed to the investigation stage? About a thousand complaints have been filed in the 2000s, and Matben has given the thumbs down to them all: Throw out the complaint, there was no shaking, there was no sleep deprivation, interrogees were not covered with a stinking sack, all the interrogees lied brazenly, all the interrogators spoke the gospel truth, all the interrogations were conducted in a good spirit amid exchanges of jokes and parables between interrogator and interrogee, the latter admitted to the offenses of his own volition.
Every complaint that was submitted against Shin Bet interrogators on grounds of torture was rejected, and many petitions submitted to the High Court of Justice were dismissed outright, the lawyer leaving the courtroom humiliated, if not wiping away a tear. No data exist about how many of the confessions that were obtained in cordial conversations between interrogator and interrogee have been false.
In 2007, Hamas activist Assad Abu Ghosh was arrested and interrogated by the Shin Bet, which, Abu Ghosh alleges, subjected him to brutal physical and mental violence, including blows, being smashed against a wall, being made to sit on the tips of his toes, contortion into the “banana” posture, painful bending of fingers, deprivation of sleep, and harsh psychological pressure in the form of threats and false depictions of his house being blown up and about what would be done to the members of his family if he didn’t cooperate in the interrogation. In July 2012, the Public Committee Against Torture in Israel, which was founded by Hannah Friedman and others (including myself), submitted a petition in the case. Filed by the law firm of Smadar Ben Natan and Michal Pomerantz, it asked the court to order the attorney general to launch a criminal investigation against the interrogators. Smadar Ben Natan clerked in my firm from 1995, and afterward was a practicing lawyer there until 2001, when she opened an independent firm; in other words, she was actively involved in the petition to the High Court that led to the decision that barred torture in 1999.
At one point, in the wake of a Matben remark that lessons had been learned from the case of Abu Ghosh, the state admitted that “special methods” had been used in Abu Ghosh’s interrogation, but not torture. Through his lawyers, Abu Ghosh apprised the attorney general that his interrogation by Matben had been similar in character to his interrogation by the Shin Bet, which was the reason for the original complaint. It took place in the same room in which he’d been interrogated by the Shin Bet; moreover, one of the Shin Bet interrogators, whose behavior was the cause of the original complaint, entered the room, and according to the petitioner, his very presence constituted a threat to him. In a written response, Matben stated that the complaint had been checked and no supporting evidence had been found for it. The statement confirmed that the complainant had been handcuffed during the Matben interrogation, but said that was in accordance with security needs and was based on standard procedure. As to the allegation that a conflict of interests exists between the Shin Bet and Matben, the statement noted that the latter was under the professional supervision of the state prosecution alone, and that no one from the Shin Bet was entitled to intervene in its investigations.
In a hearing held in July 2015, the High Court of Justice instructed the attorney general’s office to explain why it had decided to close the Abu Ghosh file. This was the first time, after a thousand complaints, that the High Court asked to see a reasoned decision by the attorney general concerning the dismissal of a complaint about torture. The High Court, too, undoubtedly was of the opinion that it was manifestly untenable for there to have been a thousand mendacious complaints. Accordingly, the attorney general conveyed to the court classified reasons along with an open abstract of his decision, holding that the use of irregular methods of interrogation in this case was subsumed under the rubric of the “necessity defense.” In other words, special methods were used that did not cause torture-like severe pain, and in any event the interrogator can resort to the necessity defense, which may afford protection to a defendant who employs an illegal action in order to prevent a greater wrong to himself or to others.
So the necessity defense had emerged from the cave in which it had been hanging out since 1999. Justice Barak had ruled that that Shin Bet interrogators must not be denied recourse to the necessity defense, but emphasized repeatedly that the necessity defense must not be used in order to create a bureaucracy of torture, rules and hierarchy of authority.
But in the Abu Ghosh judgment, Justice Uri Shoham made no reference at all to the bureaucracy of torture, and effectively tore the heart out of the 1999 judgment, distorted Barak’s words and apparently did not consider the scale of evasion of responsibility that comes about by the establishment of an institutionalized organization of torture. Justice Shoham wrote, “Even on the assumption that internal Shin Bet guidelines exist that refer to the possibility that in a specific investigation circumstances will arise that are foreseen to sustain demands of contingency (necessity), and even if the petitioner’s interrogators acted according to them; nevertheless, no blemish occurred in the application of the contingency in his matter. In the particular circumstances relating to the petitioner’s interrogation, even if his interrogators consulted with superiors before implementing the exceptional interrogation methods, in accordance with the relevant internal guidelines, this does not blemish the ad hoc character of the contingency.”
We can, then, wipe clean the victory smile in the photograph. Five naive lawyers are smiling idiotically, but torture did return, along with the bureaucratic dominion of torture, and now it was buttressed by a Supreme Court ruling. The other two justices on the panel, Miriam Naor and Hanan Melcer, concurred with Justice Shoham. In short lines, they asserted that the appellant had not proved that he had been tortured, that the burden of proof lies with the torture victim and that even if he had been tortured, his interrogators could invoke the necessity defense. The moral question of the bureaucracy of torture and the human conscience of the interrogator who decides to shorten the distance between his hand and the interrogee’s face, was not considered by the justices. But also arising from the judgment are the final words of Miriam Naor as a justice and as the then-president of the Supreme Court: “In our legal system an absolute prohibition exists on the use of torture. It has no exceptions, and it has no balances.” A clear statement: Torture is outside the judicial game.
In 2002, the Knesset enacted the Shin Bet Law, which everyone had expected would apply directives concerning special methods and stipulate agreement by a committee of ministers or other notables to authorize special methods for Shin Bet interrogations. However, apart from a certain extension of Shin Bet agents’ search powers, the law does not permit special methods to be adopted in interrogations. As is the case with every country that has intelligence service laws under one name or another. Apparently it’s better to bury the special methods deep in the earth, and not talk about them in respectable society. The special methods that were implemented in the past, and the bureaucratic dominion of torture that was established below the radar will continue to operate even after the legislation. The banality of torture will remain banal, and we, the lawyers, will remain naive.