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Israel isn't denying that it uses torture, it's justifying it

Responding to a right-wing campaign accusing it of torturing ‘Jewish terrorism’ suspects, Israel’s domestic intelligence agency basically admits doing so, and insists it is acting within the law.

Jaffa protest in solidarity with Palestinian prisoners (Mati Milstein)

Palestinians in Jaffa protest in solidarity with prisoners held by Israel. (Mati Milstein)

Last week’s episode of “This American Life” was called The Poetry of Propaganda. The Chicago-based radio program discussed how official government messaging often contains different meanings for different audiences.

“In some ways, propaganda is like poetry,” New York Times reporter Damien Cave explained at the start of the show. “You need to know how to read it.” Some people only see it on one level, while lots of other people see it on a secondary level “that may speak to the exact opposite of what it says on that first reading.”

That is exactly what is happening in Israel today with a public discussion about allegations that the Shin Bet, the country’s domestic intelligence agency, is physically and mentally torturing suspects in the arson murder of a Palestinian family earlier this year, an attack that the Israeli establishment deemed an act of “Jewish terrorism.”

Radical right-wing Israelis and the suspects’ families have launched a public campaign against the Shin Bet in recent weeks, including going all the way to New York in order to side-step an archaic gag order that prevents anyone in Israel from identifying the suspects. (+972, like the rest of the Israeli media, is subject to that gag order.)

The Shin Bet, in a highly unusual step indicative of how sensitive this case is, has publicly responded to the allegations. The agency twice put out statements accusing radical right-wing groups of running a “slanderous,” “deceitful” campaign “full of lies,” throwing in for good measure a list of truly horrifying acts that it swears it is not using.

Many news agencies took those statements to be a Shin Bet denial that it utilizes torture — or at least is utilizing torture in this case. Among others, the JTA and Times of Israel both carried headlines indicating as much.

That’s where that “secondary level” of language comes in. The Shin Bet was not actually denying that it is torturing the Jewish terrorism suspects — it was actually justifying doing so.

“The purpose of the interrogation being carried out is uncovering the organization and thwarting future attacks,” the Shin Bet said. “In coordination with the judicial system, the [suspects] are being interrogated according to established and professional judicial criteria for foiling serious future attacks.”

Thwarting future attacks. A “ticking bomb” scenario. The plot thickens.

Torture is not legal in Israel, but a High Court ruling in 1999 sent a clear message to Shin Bet interrogators: the court said that if a Shin Bet agent decides in real time that torturing a terrorism suspect is necessary to stop an imminent attack, the necessity of stopping a “ticking bomb” becomes an adequate defense for having illegally used torture. That was all the Shin Bet needed — a narrow legal opening. (Note: there is no exception to the ban on torture under international law.)

Ten years after the High Court’s now-famous torture ruling, the Association for Civil Rights in Israel wrote in a follow-up report:

That narrow opening has proved to be not so narrow. For the [Shin Bet], necessity became routine. What was perhaps envisioned as independent action in extraordinary circumstances, to be later defended in a court of law, turned into the granting of a-priori authorizations to harm detainees by the interrogator’s supervisor or by the head of the [Shin Bet], according to established procedures known to interrogators, prosecutors and judges as “the necessity interrogation procedure.” An unknown number of suspects have been thus interrogated since 1999.

The current case of the Jewish terrorism suspects gives us a window into just how far Israel’s security services, and its justice system, have taken and twisted that small opening intended as a tool for making impossible decisions in extraordinary circumstances, and turned it into an Israeli version of the Bush White House’s Torture Memos.

In other words, Israel has taken a legal defense for committing torture, a defense for committing a crime, and flipped it on its head, de facto legalizing the act and eliminating the need for a defense in the first place. Prime Minister Netanyahu even went as far as stating that what is taking place in the Shin Bet’s interrogation centers is being done “under the close supervision and approval of the attorney general.” And if the attorney general tells you it’s okay to torture, certainly he won’t prosecute you later for doing so, and you certainly won’t have to defend yourself in court.

Then again, even in cases where the Shin Bet admits that its use of torture was not legally defensible it has not been prosecuted and has made scant attempts to hide its actions. Case in point:

In the summer of 2014, the Shin Bet was desperately trying to find three Israeli teenagers who were kidnapped in the West Bank. Israeli security services launched a massive arrest operation throughout the West Bank. The Shin Bet, it turns out, took into its custody dozens of Hamas members whom, it later turned out, the agency wrongly suspected of involvement in the kidnappings.

But because the agency believed the men were involved in the kidnappings at the time, “it thought it could torture the suspects to obtain information. The assumption was that if the Shin Bet was ever challenged, it could legally defend its use of torture because it was aiming to ‘prevent immediate harm to life’,” Haaretz reported in October.

Many months later, when the tortured Hamas men finally got their day in military court, the Shin Bet refused to put its interrogators on the stand because they knew they could not justify the torture they used, and therefore the confessions they extracted using torture would not be admissible in court. Even in military court, where Palestinians have less than a one-percent chance of being acquitted.

By its own admission, the Shin Bet tortured the wrong bad guys. None of its agents were prosecuted. The Hamas men are being offered lenient plea bargains.

These two cases demonstrate that even today, in 2015, Israeli authorities are not ashamed of using torture when they deem it necessary. They have convinced the highest court in the land to justify its use and the top prosecutor to authorize it.

And that is only made possible by the use of coded, secondary levels of language. No state will ever admit that it uses torture. That is too much for its public, and the international community to handle. But using “moderate physical pressure” and “stress positions” against “ticking bombs” sounds pretty reasonable.

One final note. There has been a lot of talk in Israel in the past week or two about how authorities treat Jewish and Palestinian terror suspects differently. And while the fact that the Jewish terrorism suspects are being held in administrative detention and the alleged use of torture against them all indicates that those gaps are narrowing, they are still miles and miles apart.

The Forward reported on Thursday that the mother of one of the allegedly tortured Jewish terror suspects met with Israeli Justice Minister Ayelet Shaked last week. It is safe to say that no sitting Israeli justice minister has ever agreed to meet the family of a Palestinian terror suspect.

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