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High Court upholds flawed procedure on torture investigations

The High Court of Justice upheld the procedure regarding complaints of torture against Shin Bet agents, despite the fact that this procedure resulted in no investigations after nearly 600 complaints

The High Court of Justice has upheld a controversial procedure governing investigations into allegations of abuse and torture against employees of Israel’s General Security Service, better known as the Shin Bet. According to this procedure, all complaints, usually filed by Palestinians who the Shin Bet detained and interrogated on suspicion of terrorism, are first examined by a Shin Bet official, working under the professional supervision of the Attorney General’s Office. This examination includes interviews with the complainants and the accused agents and review of relevant documentation. The case can proceed to a full criminal investigation only if this official rules that there are grounds to do so: if he finds no such grounds, the case is closed.

This procedure has been strongly criticized by human rights organizations, which submitted the petition that was rejected yesterday. The petition was drafted and litigated by the Public Committee Against Torture in Israel (PCATI), joined by more than a dozen Palestinian complainants, and many Israeli human rights organizations.

The petition and the court ruling (see here for the full text in Hebrew) deal with numerous issues of legal interpretation and organizational structure. However, the most relevant fact may actually be a number: zero. That is the number of complaints that resulted in a criminal investigation, out of about 600 monitored by PCATI. Zero is not the number of convictions, nor even the number of indictments. It is the number of cases that were deemed worthy of even opening a professional criminal investigation by an external body. This record is even worse than that of the flawed mechanism of accountability regarding complaints against settlers or IDF soldiers.

The High Court ruling does not seriously address the remarkable outcome of the Shin Bet’s procedure. After plowing through some 26 pages of convoluted legalese, its basic argument appears to be that the system of investigating complaints against the Shin Bet is “evolving,” and the court does not see fit to interject itself into this evolutionary process. It argues that the Shin Bet has improved on its appalling standards of opacity and unaccountability since the 1980s, and chooses to believe the state’s promises that various additional improvements are in the works.

The court also suggested that the state respond within a month to individual petitioners’ requests to reconsider the Shin Bet’s decision not to open an investigation into their complaints. PCATI, in response, criticized the court’s refusal to label Shin Bet investigation methods as “torture” (which, under international law, would have compelled a criminal investigation in all such cases), but expressed hope that the decision regarding individual complainants might lead to proper legal recourse in those cases. Clearly, the track record on this issue is not encouraging.

Postscript: The English language story on the ruling by Haaretz omits the fact that no criminal investigation has been opened out of 600 cases, and does not include PCATI’s response to the ruling. Both pieces of information appear in the Hebrew version of the same article. This is not the first time something like this has happened.

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    1. Noam w

      This is not at all surprising. I remember Rubinstein, as the attorney general in a conference, explaining how happy he is about American practices in Guantanamo, because “now, after 9/11, they understand the measures we have had to use all along”.
      .
      He approves of torture, the rest is a charade.

      Reply to Comment
    2. This is most fascinating to me. Let’s see, before we bring a fox up on charges for raiding the chicken coop, we first ask his wife to see if she sees any problems. Only when she sees problems do we proceed.

      How Israeli officials allow themselves to repeatedly present that country is a democracy I find a deep mystery. Given all the evidence I have seen over the years, they know they are lying everything they make this statement.

      Reply to Comment
    3. Prometheus

      There is nothing inherently wrong with torture.
      .
      Every single one of those who supposedly oppose torture would happily employ most horrible methods if a life of one’s family members would depend on extracting information.
      .
      And if someone still would not – than this creature must die as weaker.

      Reply to Comment
    4. Atlas

      That’s a phallacy, at so many levels I don’t know even where to begin. Really, it’s impressive: not everybody it’s able to be so wrong in so little space.

      Reply to Comment
    5. Oriol2

      Prometheus, most people would be willing to pay enormous sums of money to a terrorist group in order to avoid the death of a family member. Would you condone it? Or, better, do you think that every government in the world should condone it, given the case? All arguments following the line “what would you do if your ten years old son” are stupid, and no valid guide for public policies. By the way, a person who hipothetically would renounce torture even if with that condemned a family member would not be weak. He/She would be incredibly strong, or perhaps a fanatic.

      Reply to Comment
    6. Piotr Berman

      I would think that of all creatures, mortal and immortal, the Titan Prometheus would have some compassion for human torture victims, himself being a subject of pretty peevish revenge of Olympian gods: for giving fire to humans he is chained to a mountain and an eagle each day feasts on his liver.

      At least a fellow Titan, Atlas, begs to differ. Perhaps Prometheus is an impostor?

      Reply to Comment
    7. The argument that torture is necessary to save people is wobbly, as the evidence suggests that the torture victim will say whatever they think the torturer wants to hear in order to get it to stop. Some studies have also found that being put under conditions of stress as in torture impairs memory and makes truth-telling even more unlikely, as the victim is simply unable to be accurate. A review of this data was published in ‘Trends of Cognitive Sciences’ a few years back, if I remember correctly. Ethics apart, torture doesn’t work – but the fact that torture doesn’t work is irrelevant to the people carrying it out, since what they are interested in is not so much information as the display of raw power. Reading accounts from ex-torturers is very interesting, as this is a recurring theme – the fact that they were able to do more or less as they liked. Prometheus’s comment that ‘this creature must die as weaker’ is a snapshot of the mentality at work. Contempt for people who happen to be weaker than you are causes a lot of violence, from schoolyard bullying to the abuse of elderly people in care homes. It’s nothing particularly special, but it becomes much more sinister when it gets rubber-stamped by the state and put behind guarded doors.

      Reply to Comment
    8. The poor Titan seems to suffer from the Stockholm syndrome. What happened?

      Reply to Comment
    9. Prometheus

      ” Would you condone it? Or, better, do you think that every government in the world should condone it, given the case?”
      .
      Of course. The money must be payed, the hostages release and all members of the terrorist group must be tracked down and prosecuted.
      Pretty much like Israel does.
      .
      “All arguments following the line “what would you do if your ten years old son” are stupid, and no valid guide for public policies.”
      .
      It only might seem stupid to someone who is not really concerned.
      .
      “…would not be weak. He/She would be incredibly strong, or perhaps a fanatic.”
      A strong personality does not necessarily means good survivalist from the Darwinist point of view.
      .
      “…compassion for human torture victims”
      .
      Torture still remains the most preferable worldwide method of extracting information. Which is why, btw, IDF soldiers are instructed to tell everything they know once abducted and interrogated.
      .
      I do have a lot of compassion for torture victims – humans and animals alike, however in certain cases the torture is better than many other evils.
      .
      My position is simple – if one or more lives directly depend on the information which could be retrieved only by torture than the torture could be justified morally.
      .
      “Ethics apart, torture doesn’t work – but the fact that torture doesn’t work is irrelevant to the people carrying it out, since what they are interested in is not so much information as the display of raw power.”
      .
      Name 1 (one) more effective way of making someone to tell a secret.
      You won’t name it, so in spite of lacking anything more efficient torture is the only more or less viable tool, followed by sex partner and crystal ball and will remain such in foreseeable future due to complete lack of progress in thoughts reading.

      Reply to Comment
    10. Danny

      “There is nothing inherently wrong with torture.”
      .
      So you’re okay with captured IDF soldiers being tortured by their captors, yes? Or does the above sentence only apply to Arabs?
      .
      It’s interesting to note that Gilad Shalit was not tortured by his Gazan captors, nor was Elhanan Tanenbaum by his. It would appear that in terms of humane treatment of captives, both Hamas and Hizballah score higher than Israel, which routinely tortures Hamas and Hizballah POW’s.

      Reply to Comment
    11. Prometheus, I have already given the journal reference for a meta-analysis that demonstrates the ineffectiveness of torture in making people tell the truth, with two specific reasons why it doesn’t work. Additionally, the scenario that most people present when they want to justify torture – something horribly dangerous about to happen, with the person in custody holding vital information – is pretty much a ’round square’ scenario. It couldn’t happen. If you had information that a dangerous attack was imminent, and you knew that the person sitting in front of you was involved, and you had also known exactly where and when to capture him, you would presumably have enough data on the prospective attack to thwart it without recourse to torture. And as the studies have suggested, if you really want good information, you’re unlikely to torture – it places too much of a strain on the victim’s ability to remember and be coherent about what he remembers.
      .
      As for more effective techniques, detective constables in democratic countries routinely interrogate their suspects and bring about successful prosecutions without resorting to brutality. There’s nothing special about intelligence-gathering that transforms torture into a magical necessary technique. Also, we know that the use of torture is indiscriminate, and not restricted to supposed life and death cases – there are enough teenagers who have been tortured into confessions of stone-throwing to make that perfectly plain.
      .
      You don’t have compassion for torture victims. Compassion means wanting what’s best for someone, literally ‘suffering with’, not saying, “There’s nothing inherently wrong with hurting them like that,” with a reference to survival of the fittest for good measure.

      Reply to Comment
    12. Piotr Berman

      There is high cost associated with the use of torture. It is a like providing heroine to people at key decision making position so they could clear their minds whenever they find it necessary. Torture is highly addictive, not just for persons who administer it, but for the entire chain of command. As we can easily witness (if our minds are genuinely clear), when humans get tortured, so is the logic.

      The High Court reasoning cited above was a good example of tortured logic. The court basically refused to administer the law and to admit that it is refusing. One could argue that the law is stupid, people who ratified Geneva conventions of Israeli behalf were idiots, but this is not what the court did.

      Similarly, hours after an attack on Israeli tourists, key officials of Israel, including Prime Minister, concluded that Iran is guilty of that atrocity. One may ask who was tortured for the occasion. Unlike humans that would have to be tortured for hours if not days, logic can be tortured to submission in mere minutes.

      In that particular case, consequences are fleeting. Pronouncements of Israeli top officials are treated as hyperbolic outbursts, which they are, but so what? But when Finance Minister concludes that multi-billion retroactive tax break for corporations improves the finances of the state, Israeli non-super rich have to fill the budget gap.

      Reply to Comment
    13. As I have suggested before, I think of the Israeli constitution as an evolved war council where you don’t harm other council members, as all are needed in the war effort. The IDF and Shin Bet seem to be full council members, as is the Knesset and High Court. Fundamental turfs are not to be impinged. Which means that rights cannot exist, for no agency can be expected to adequately police its own without threat of external intervention. (Intervention against the courts themselves is weak; in the US, through impeachment, never implemented against a sitting Justice, or through the power of appointment, which has indeed effectively altered the trajectory of the Court in a delayed fashion.) Israel has entered its dark time of law, since at least the Citizenship Law case. Until the Court decides to abandon its place in the war council constitution, I see only cosmetic changes.
      .
      As to torture, notice how those supporting such always assume there is information to be found; that a Shin Bet officer is somehow endowed with ever clear vision. I recall Weapons of Mass Destruction. But it would be foolish to claim that lack of torture will never lead to innocent deaths. In any legal system with real rights, sometimes innocents will die. To claim otherwise would be to be a Prometheus, above, in reverse. I do wish he had chosen another name. I kind of liked Prometheus the myth. Who is punishing our Prometheus herein for the light he brings?

      Reply to Comment
    14. Um, actually one US Justice was impeached, but not convicted, so not removed from office. Impeachment is accusation to trial, not conviction.

      Reply to Comment
    15. Prometheus

      Vicky,
      “Prometheus, I have already given the journal reference for a meta-analysis that demonstrates the ineffectiveness of torture in making people tell the truth, with two specific reasons why it doesn’t work.”
      .
      In real world torture does work, otherwise it won’t be used so widely for interrogations.
      .
      “Additionally, the scenario that most people present when they want to justify torture – something horribly dangerous about to happen, with the person in custody holding vital information – is pretty much a ’round square’ scenario. It couldn’t happen. If you had information that a dangerous attack was imminent, and you knew that the person sitting in front of you was involved, and you had also known exactly where and when to capture him, you would presumably have enough data on the prospective attack to thwart it without recourse to torture.”
      .
      Above is could only be written by someone who has no real experience in homeland security, or is lying intentionally.
      .
      1 near real life example:
      Intelligence supplied information that certain people plan to detonate two bombs in city’s pubs. One of Nation Liberation Army members is a rat, but since the organization is operating in conspiracy he was only able to tell the color of the car of one of the cell members. .
      .
      Soon suspect is tracked down, but the car plate is duplicated and cell phone is anonymous prepaid.
      .
      Suspect lead police to cell’s safehouse.
      .
      After questioning neighbors turns out that two people have left it earlier, one of them carrying large bag.
      .
      Decision to breach is made, it goes smoothly and one suspect apprehended.
      There are no explosive devices but some parts of detonator is found, alongside with lots of explosives traces.
      .
      Turns out that this cell was rather well trained – I won’t go into details but while there is a way to identify and find a person by certain clues there are also ways to severely impede all and any known investigation methods such as taking care not to leave fingerprints, preventing identification by CCTV and dumping old mobile phone.
      .
      So the cell. They were well trained and left no clues which would directly disclose their identities – e.g. no fingerprints and no pictures in mobile phone.
      Neighbors were not able to provide any information besides that all three of them was bearded and two left on food with large bag but not in hurry.
      Their mobiles are turned off.
      .
      So what police has to find now is:
      What cars they have or who drives them?
      What are their new mobile numbers?
      Their real names or nick names?
      What are the targets and at what time they are going to be attacked?
      Is it going to be a suicide mission, remote controlled or time delayed detonation?
      .
      So many questions and so little time.
      .
      Do you have any plan of actions?
      .
      “And as the studies have suggested, if you really want good information, you’re unlikely to torture – it places too much of a strain on the victim’s ability to remember and be coherent about what he remembers.”
      .
      As I have just shown often you don’t need any good information.
      Obviously you can’t shot in the leg and expect him to solve mathematical equations. However the very same bullet can help a great deal in remembering a car’s color or friend’s name. Lying is not helping btw – you just ask the same question after a while and see how response goes.
      .
      “As for more effective techniques, detective constables in democratic countries routinely interrogate their suspects and bring about successful prosecutions without resorting to brutality.”
      .
      Obviously you have no idea how police really works.
      There are two kinds of criminals:
      Smart and stupid.
      Stupid leave fingerprints, rape own neighbors and steal from roommate. They are always get caught.
      Smart leave no fingerprints of photos, never commit any crimes in immediate neighborhood and not to someone they know. They are almost never get caught.
      Over 80% of all police arrests are made solely because someone informed on someone else to get a deal – not because police are such good forensics experts.
      .
      Terrorists, however – of freedom fighters if you like – are a whole different issue.
      They are not regular criminals, for they seek no profit in their deeds.
      It’s ideology and patriotism what drives them, not greed or hatred towards other people. You can’t threaten them with prison sentence – obviously their life is much less important to them than the cause – so the pain – or drugs – remain the last resort, ugly but needed.
      .
      “There’s nothing special about intelligence-gathering that transforms torture into a magical necessary technique.”
      .
      Oh please. Go and work in any security organization as field agent or something. But before you do that read The Lucifer Effect by Dr. Zimbardo http://www.lucifereffect.com/
      .
      “Also, we know that the use of torture is indiscriminate, and not restricted to supposed life and death cases – there are enough teenagers who have been tortured into confessions of stone-throwing to make that perfectly plain.”
      .
      Are you claiming that stone throwing is not life-threatening?

      Reply to Comment
    16. “In real world torture does work, otherwise it won’t be used so widely for interrogations.”
      .
      Efficacy is not the only reason people could have for torturing someone. I already mentioned that in earlier comments – and then you yourself cited Philip Zimbardo, who did a classic study on how people abuse power without any utilitarian purpose, just because they have power. As for the ‘real world’, a US military agency (Joint Personnel Recovery Agency) advised the Pentagon against the use of torture with terrorism suspects purely on grounds of inefficiency back in 2002, and a former FBI interrogator who was involved in interrogating Al-Qaeda suspects (Jack Cloonan) once argued that torture is dangerous as well as ineffective because it fosters more terrorism. Interestingly, in the same interview he claims that the Israeli intelligence establishment doesn’t rely on torture for purposes of intelligence-gathering because they know it doesn’t work. Torture is only effective when it comes to dehumanising people, letting them know who’s boss, and the climate in the OPT is certainly ripe for doing that.
      .
      Your final question to me suggests that you approve of torturing children in cases of suspected stone-throwing, which puts your earlier James Bond-esque storyline into perspective and makes it clear what mental gymnastics people will perform in order to justify these things. Saying things like ‘you’ve never worked in homeland security, you obviously don’t understand how it works’ (before stretching ‘homeland security’ to include twelve-year-old boys throwing stones at jeeps and APCs) is an Emperor’s New Clothes argument: the clothes are here, they really are real, you just can’t see them because you don’t understand our fabric-weaving technique, you need to take my word for it. I’m not prepared to invest that level of blind faith in the Israeli government and Shabak, or any government really.

      Reply to Comment
    17. Atlas

      “In real world torture does work, otherwise it won’t be used so widely for interrogations.”

      They use torture. Why? Because it’s useful. Why is it useful? Because they use it, otherwise, they wouldn’t use it.

      Wow, textbook case of petitio principii fallacy. And that’s just the first line. Tell me, do you actually read what you write?

      Reply to Comment
    18. Piotr Berman

      Prometheus furnishes “1 near real life example” of a situation in which, as he claims, use of torture is advisable.

      “Near real life” apparently means a synopsis of a segment of a TV show. As torture is addictive, it is a perfect theme to attract audience for a TV show.

      We have information how torture was used by American authorities. For example, suspects were tortured for many months and sometimes years which hardly comports with “ticking bombs” scenarios. The immense feeling of power that torture gives to perpetrators extends to the entire decision chain, and also to segments of the population that may feel vengeful glee. Just watch Prometheus as an example of inflation of justification. It starts from a situation in which a nabbed suspect has a part of a detonator and tests positively for explosive trances, so presumably his buddy somewhere has the rest of the detonator and the actual explosives. And it quickly inflates to the approval of torturing teens so they admit that they were throwing stones: “Are you claiming that stone throwing is not life-threatening?”.

      Somewhat separate question is that, however laudable or heinous the use of torture is, is it advisable to have a legal mechanism for supervising the use of torture that never detects any use of it. Suppose that it is advisable to double salaries of the security personel but the egalitarian impulses present in the public prevent from doing it overtly. Would it be OK to give each of the salary-deficient officer a spending account equal to its nominal salary and some utterly ineffective mechanism to check if the expenses have any connection with the duties? This would achieve the noble goal of doubling the spending abilities of these officers.

      Reply to Comment
    19. Prometheus

      Vicky,
      In your world the torture is useless – which is just has nothing to do with reality.
      A real life example:
      CIA operative William Francis Buckley was kidnapped at Beirut in 1985. He was tortured and information extracted lead to near complete destruction by it self.
      .
      Now you go and tell Hizbullah operatives that the torture is not efficient, they would certainly love a good laugh.
      .
      Also, in your world Palestinians only throw stones at armored jeeps and APCs, which is not truth either.
      http://www.haaretz.com/news/national/fatal-west-bank-car-crash-caused-by-palestinian-stone-throwing-1.386594
      .
      “Jack Cloonan once argued that torture is dangerous as well as ineffective because it fosters more terrorism. Interestingly, in the same interview he claims that the Israeli intelligence establishment doesn’t rely on torture for purposes of intelligence-gathering because they know it doesn’t work.”
      .
      That Cloonan dude is either senile or is lying intentionally.
      http://www.youtube.com/watch?feature=endscreen&NR=1&v=lvsvO9kvSdo – in the interview he claims that there are no “ticking bomb scenarios”
      Basically it was what happened to the CIA cell in Beirut.
      Hizbullah got the cell leader and got to retrieve information fast before all cell members could be extracted. They employed horrible torture, but it was dead efficient, albeit the fact that CIA operatives undergo appropriate training.
      .
      “how people abuse power without any utilitarian purpose” – totally untrue. I strongly suggest you read the book carefully first.

      Reply to Comment
    20. Prometheus

      *complete destruction of the cell

      Reply to Comment
    21. Prometheus

      “We have information how torture was used by American authorities. For example, suspects were tortured for many months and sometimes years which hardly comports with “ticking bombs” scenarios.”
      .
      Also we have information that US authorities starved to death hundreds of thousands of German POWs after WWII, and that US authorities condoned lynching negroes until 60′s.
      .
      So what? In all has nothing to do with the efficiency of the torture as a tool to be used in certain conditions.

      Reply to Comment
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