Even as Israeli lawmakers moved to soften this week’s landmark High Court of Justice ruling banning physical force in the interrogation of suspects, an attorney who brought the case vowed to return to court to challenge any modifications.
“What they are talking of is a law to bypass the ruling of the High Court,” said Allegra Pacheco, who represented the Public Committee Against Torture, one of three organizations and seven Palestinians that brought the case. “I don’t think that would work.
“Another option they are considering would give the Minister of Defense the right to issue directives [permitting torture in specific cases]. That would be harder to challenge because I’m sure the methods approved would be secret.”
Pacheco, in a phone interview from Jerusalem, said the court’s stunning decision gratified Palestinians who had been subjected to torture interrogations “because it reaffirmed what they had been saying — that what was done to them was painful, humiliating and degrading. The argument I made to the court was that torture is never justified and Israel has been using it for 30 years. Torture is not the way to end terrorism.
“Israel signed and ratified [and international agreement] that says torture is cruel, degrading and inhumane treatment that is absolutely prohibited for the purpose of gaining information. It doesn’t contain an exception for Hamas suspects. … There are other ways to interrogate. We are not saying don’t interrogate a suspect; we are just saying that these methods are unacceptable — and the court finally affirmed that.”
Israeli Justice Minister Yossi Beilin also hailed the ruling, saying previous practices were a blot on Israel’s reputation.
But Deputy Defense Minister Ephraim Sneh blasted the decision as “harmful to Israel’s security. It’s nice to have liberal legislation … but in this part of the world, in which we struggle to survive, it is almost irrelevant. The High Court cannot be so detached from the day-to-day reality of our lives.”
The justices, in their unanimous 9-0 decision, wrote that they were aware of the problems their ruling might cause but they argued that “this is the fate of a democracy. … Not infrequently, a democracy must fight with one hand tied behind its back. Despite this, democracy has the upper hand because preservation of the rule of law and recognition of individual liberties are an important component of its concept of security.”
The court did not characterize the physical force used in interrogations as “torture,” but it banned violent shaking, handcuffing suspects in painful positions, placing filthy bags over their heads, depriving them of sleep and subjecting them to constant, loud music.
Dan Meridor, chairman of the Knesset’s Foreign Affairs and Defense Committee, termed the court action “very important and courageous.” He pointed out that the court did say that the country’s General Security Service or Shin Bet may still use reasonable physical force in exceptional cases to save lives.
“In this way, nothing has changed,” said Meridor.
Pacheco said the problem had been that physical force had been used routinely during interrogations.
“Most interrogation is for information and not for terrorist situations,” she said.
Human rights groups have estimated that as many as 850 Palestinians a year are tortured during interrogations.
But Likud Party whip Ruby Rivlin said he was prepared to introduce a bill to counter the ruling if the government failed to do so. He said it would be designed to “protect the victims, not the murderers.”
Prime Minister Ehud Barak issued a statement said that although he respected the court’s decision, it made it difficult for the Shin Bet and that “to save lives, we need to find a way” to get information from a suspect about an impending terrorist attack.
Beilin said he opposed legislation to bypass the ruling, saying there was no need for it.
“The Shin Bet is doing holy work in protecting lives,” he said. “It will be able to continue doing this without using these methods.”
But Attorney General Elyakim Rubinstein disagreed and suggested that the Shin Bet should have more powers than the police when it comes to emergency situations. He said he would issue guidelines to the Shin Bet spelling out under what conditions physical force might be warranted during an interrogation in order to protect interrogators from criminal prosecution. And he said the Knesset should pass a law regulating interrogation techniques.
Pacheco said any guidelines would be subject to challenge unless they conformed to Israel’s Basic Law: Human Dignity and Freedom.
“That says that no law may contradict it,” she said. “It is like Israel’s Bill of Rights.”
Israel’s ambassador to the United States, Zalman Shoval, said the Shin Bet agreed to immediately comply with the court order but said “we should not lose sight of the fact that [the court decision] will make our combat against terrorism more difficult. But the law is the law. This is the age-old dilemma that democracies have that lead a democratic, liberal way of life when they have to defend themselves against parties who do not lead that way of life and are willing to exploit the way democracies lead theirs. We are not surrounded by enemies who appreciate the norms and ideals on which Israel is based.”
Asked about the Israeli civil rights groups that brought this case to the High Court, Shoval said: “Israel is a free country and anybody can speak out. The problem is, of course, that those who sometimes raise these issues do not have to provide the answers of what to do in its place. It’s a real dilemma. … I don’t think for a moment that those who raised the matter in court wanted to hurt the state, but they do not fully appreciate the dangers that face us or the difficulties that face our security organs.”
Pacheco, a former resident of Dix Hills, L.I. who now lives in Jerusalem, insisted that as one who “walks around the streets here, I am susceptible to the same bombs” as others. But she said the way to “prevent further bombings is to have a just settlement and eliminate all hostilities. I know that in talking to my clients that the scars from their torture remain, as does their anger and hostility towards Israeli intelligence officials. When you eliminate torture, you eliminate one of the major causes of hostility and anger that Palestinians have towards Israelis.”