Israeli Interrogations
By Leonard Fein
The headlines and the news broadcasts on the day I arrive in Israel are devoted to the stunning decision of the Supreme Court: Henceforward, the "moderate physical pressure" that has been permitted Israel's security services in their interrogation of prisoners is forbidden. Nine judges of the Court joined in the unanimous decision, and their language leaves no wiggle room for "exceptional circumstances."
To American liberals, this will seem a no-brainer. Sleep deprivation, violent shaking, covering the suspect's head with a sack - these and the other standard practices amount to torture. Nor can there be much doubt that once such practices as these are deemed acceptable, as they have been in Israel for years, more draconian measures will also be employed. After all, since the justification is that the suspect may have information regarding a ticking bomb, a bomb that might kill any number of people, why stop at "moderate" pressure? And how imminent must the explosion be to justify torture? Five minutes? Today? This week? And how certain must the interrogator be that the suspect indeed has the relevant information? Open the door to torture even under strictly delimited circumstances - the explosion is to take place within hours, and the suspect surely knows the exact time and place - and a combination of logic and human nature ensures that the door will soon enough swing open all the way. A no-brainer.
But my host here in Israel is a former senior official of the Shin Bet, the domestic security service. He is a liberal whose entire professional career was spent protecting Israel from its enemies, and there never was nor is there now a shortage of such enemies, people prepared to commit horrendous acts of terror. He respects the Court, respects the law, respects human rights - and worries about the consequences of the Court's decision. Over a long cup of coffee, we decompose the "no-brainer," and it turns out to be a no-brainer only if there is no brain.
One cannot expect polite (or even rude) inquiries of prospective informants to result in their willing revelation of all the information they possess. One cannot know in advance just what information they possess. One cannot know for sure whether there is a ticking bomb. What one knows, going into the interrogation, is that there is some reason to believe that if the prisoner can somehow be induced to reveal what he knows, a bus may not be blown up, a car bomb not go off. As against that, there sits before you a scumbag, a person who views your "enlightened morality" with contempt and will take every advantage of it he can. What to do?
My friends in Israel are proud of what the Court has decided. And they are troubled by what the Court has decided. The decision was handed down the day after two car bomb attacks failed when the bombs went off prematurely, killing the would-be perpetrators. And on the day of the decision, five people who may be tied to the car bombings were arrested. All this comes to remind the people here, human rights advocates along with others, that what is at stake is not an interesting series of hypotheticals. As diverting a parlor game as reflection on these matters may be, this is not a parlor game in Israel. The stakes are very, very different.
I know from the last time I wrote of such things with a recognition of their complexity that some of my friends in America will be puzzled. They regard any deviation from advocacy of the strictest human rights standards as impermissible heresy. And the fact is that I agree with them. There must be rules, since without rules there would be chaos, and once there must be rules, the rules cannot leave room for individual judgment. But does that not mean that we are simply shifting responsibility to the hapless interrogator, who must now decide in each case whether the matter is of sufficient urgency to warrant his violation of the rules? For make no mistake: An interrogator who is not prepared to break the rules when occasion warrants is not the kind of interrogator on whom the people of Israel can rely for their safety.
Obviously, that leaves open, wide open, the question of how we define "when occasion warrants." Perhaps, then, the solution - if one can speak of a "solution" in this context - is to employ interrogators sufficiently courageous so that they are willing to defend their actions before a court, interrogators who know that they will be held answerable for their actions, interrogators, in other words, who are prepared to go to jail if the appropriate court does not find their actions defensible. That is not a pretty solution, not at all. But there is here no pretty solution, none that satisfied either intellectually or pragmatically. There is, instead, a genuine dilemma. Which, in turn, is what makes the decision of the Court, a decision by nine judges who live in this country and not in a make-believe utopia where all the loose ends can be neatly tied, a decision both troubling and praiseworthy, so very interesting, and important.
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