The United States has long barred the types of “physical pressure” outlawed by Israel’s Supreme Count this week in an historic ruling. But that has not hamstrung law enforcement officials here in their counterterrorism efforts, say experts.
This applies even to so-called “ticking time bomb” cases — where authorities are acting to prevent an imminent terrorist attack — of the sort that Israel claims pose a unique threat to its society, these sources say.
Both human rights activists and federal law enforcement officials said experience showed that alternative methods could prevent terrorism effectively and obviate the necessity to engage in torture.
But one prominent civil liberties expert said law enforcement authorities here are not constrained by the rules against physical abuse of prisoners because they simply ignore them.
“If the cops arrest someone here and want his accomplices, they’ll beat the crap out of him to get that information,” asserted noted defense attorney Alan Dershowitz.
Referring to his own defense of a member of the Jewish Defense League charged with bombings in the late ’60s, he said, “I had a client who was tortured. When the cops thought he knew where some bombs might be, they took him to the Catskills, made him dig his own grave and then put a gun to his head as he stood over it.”
Dershowitz applauded Monday’s ruling by Israel’s Supreme Court for going “far beyond what the U.S. Supreme Court would ever do.
“If we ever had a ticking bomb case here, the police would torture — and the courts would sustain it,” Dershowitz averred.
But Claire Bencomo, a Middle East expert with Human Rights Watch, questioned this contention, at least at the federal level. Bencomo cited an affidavit from attorneys for an American terrorist submitted by the Palestinian plaintiffs in this week’s case. In it, the defense lawyers for Timothy McVeigh, convicted for killing 230 people in the 1997 Oklahoma City bombing, stated that when McVeigh was captured, U.S. law enforcement authorities believed there might still be other bombs planted and waiting to go off.
Nevertheless, said Bencomo, “The defense attorneys submitted that McVeigh had immediate access to an attorney; that he was at no time mistreated; and that the FBI still got the information they needed.”
The affidavit stated that law enforcement agents got their information through “regular interrogation,” Bencomo said.
In its unanimous ruling, the Israeli Supreme Court effectively threw out the ground rules established in 1987 by a special panel known as the Landau Commission. These ground rules sanctioned “moderate physical pressure” by the Shin Bet, Israel’s domestic security agency. A secret addendum specified what techniques were permitted under this rubric.
In the case ruled on this week, the Jerusalem government did not rebut plaintiffs who testified that these techniques included being forced to sit, bound, for long periods in painful, contorted positions while hooded with soiled sacks reeking of feces and urine. The techniques also included violent shaking from behind the shoulders, painfully snapping neck and back tissue; and sleep deprivation, often through exposure to blasting music for long periods. In 1995, a Palestinian prisoner died from brain damage caused by violent shaking.
Both the commission and the Supreme Court in an earlier ruling had invoked a “necessity defense” for such measures. Israel, facing a unique terrorist threat, in some exceptional circumstances had to use these techniques to extract information quickly and save lives, it was claimed.
But Israeli lawyers for the plaintiffs and several human rights groups documented that such treatment was far from exceptional. The Israeli rights group B’Tselem estimates that Shin Bet tortures some 85 percent of the 1,000 or so Palestinians it interrogates yearly.
The Supreme Court for years avoided ruling on petitions submitted in such cases. Meanwhile, it appealed unsuccessfully to the Knesset to legislate a legal framework of some kind to govern Shin Bet actions. This week, in the absence of Knesset action, the court flatly outlawed physical abuse for any reason — though it left open the possibility of a necessity defense after-the-fact, if an agent was later exposed to the possibility of criminal prosecution.
The court also urged the Knesset to act, but warned that the legislation must not violate Israel’s Basic Law on Human Dignity and Liberty, one of several overarching laws that make up a still-developing framework of constitutional law approved by the Knesset.
Since the ruling, top Justice Ministry officials have split publicly over whether to seek such Knesset legislation or to let the court ban stand as is.
FBI spokesman David Miller said that strict prohibitions against abuse were a long-established part of the FBI’s operational rules, no matter what the situation. But he said that U.S. law enforcement agencies used a “wide variety” of other techniques to combat terrorism. Among these were search warrants, wire taps, the seizure powers of the Customs Service and the authority of the Bureau of Alcohol, Tobacco and Firearms to seize illegal weapons, said Miller.
In congressional testimony last February, FBI director Louis Freeh said actions by his agency had prevented 10 planned terrorist attacks in 1998. Freeh singled out court-authorized electronic surveillance as “one of our most effective means of obtaining information.
“The capability to lawfully intercept communications between criminals, terrorists and foreign intelligence agents has been instrumental” in preventing terrorist acts and saving lives, said Freeh.
But Dershowitz proposed that Israel’s legislature or courts authorize the use of “torture warrants” to face its terrorism threat.
Torture in some cases was inevitable, said Dershowitz. But “you can’t have the cops be the ones to decide this. Before they can torture, they should have to go before a court and show: the bomb’s ticking, here’s the justification. … But the judges didn’t want to dirty their hands. So they came to this compromise.”