The Law Behind Torture
Justifying the necessity defense in Israel and the United States.
December 15, 2014
Dec 15, 2014
8 Min read time
Justifying the necessity defense in Israel and the United States.
In Public Committee Against Torture in Israel v. State of Israel (1999), the Israeli Supreme Court held “moderate physical pressure” a violation of human dignity and of the prohibition on torture and inhuman and degrading treatment. The judgment had monumental influence the world over. To name just one example, Richard Goldstone explained: “Few countries have suffered more at the hands of terror attacks than Israel. The response of the Israel Supreme Court to torture has, however, remained uncompromising.” Four years ago, Omer Shatz and I published an article addressing the legacy of this famous judgment. We made two points.
The first point was that the decision, which seemingly denounced abusive interrogation methods, ended up entrenching them as part of the legal system controlling Israel-Palestine. In a famous obiter dictum, Former President of the Israeli Supreme Court, Justice Aharon Barak, found that abusive interrogators could enjoy the “necessity defense” under a domestic statute. If they reasonably acted to save lives, they could be exempted from criminal responsibility. The ticking-time-bomb scenario was first invoked much earlier, notably during the French colonization of Algiers. Yet Barak’s reconstruction of the trope is the most widely cited one. Importantly, he explained, necessity could not authorize abusive interrogation in advance.
But the more crucial aspect in understanding how the judgment ended up allowing for abusive interrogation is its reference to prosecutorial discretion. In an often-overlooked clause, Justice Barak also invited the Attorney General to “instruct himself” on when it is appropriate to press charges. The chief executive lawyer addressed the issue almost immediately after Public Committee. Attorney General Elyakim Rubinstein (now Supreme Court Justice) provided the framework for internal guidelines within the General Security Service (the “Shabak”). If interrogators would follow the guidelines requiring advanced permission from high-ranking security officials, they would be understood to act out of necessity and not be prosecuted. The executive effectively reversed the requirement of no ex-ante authorization, articulated by the judiciary. The Supreme Court judgment crafted an administrative space precisely for such instructions.
How did a decision denouncing abusive interrogation techniques end up entrenching them?
The second point had to do with the transnational effects this Israeli opinion had in the context of Bush-era “enhanced interrogation.” The evidence for this influence is threefold. First, Alan Dershowitz and several others had been following the Israeli system since the 1980s in their own efforts to introduce physical pressure in U.S. interrogations. Second, in both legal systems, the seemingly absolute prohibition on torture and inhumane treatment has constantly shifted to the cost-benefit analysis of “proportionality.” This signaled a structural similarity in the dynamics in both cases. Third, in both legal systems, it was becoming clear that the upshot, in terms of actual policy results, was the same: there was a newfound acceptance of abusive interrogation in the form of immunity from criminal charges for interrogators, or as we said, “un-prosecution.” As we all know now, in the United States un-prosecution persisted long after Obama took Office.
But documents released with last week’s torture report revealed a much more direct influence. In a draft memo from a little over two months after 9/11, CIA lawyers rely on Public Committee in saying that the necessity defense might be available for American interrogators too. The memo exposes the way the CIA’s General Counsel turned to the Israeli judgment, largely understood as prohibiting torture, in order to find ways to defend interrogators that use it. A quarter of the world's nations then cooperated with the torturous policies in Bush’s program. What can we learn from the CIA’s interpretation of the Israeli case?
A note of caution is warranted before proceeding. Though doubtlessly important, it would be misleading to overstate the influence of Public Committee. The United States has a bountiful tradition of abusive interrogation of its own. It did not need Israelis to teach them how to be “cruel” toward detainees. The lesson here is about the legalization of the torture apparatus, and about how forms of justification travel across borders.
• • •
The CIA General Counsel memo to some extent parallels the earlier memo by Elyakim Rubinstein (a translation of which is available here). In both texts, executive branch lawyers grapple with the question what might they do with a justification—the necessity justification—that can be applied only in hindsight: you only know whether or not you save lives through interrogation after the interrogation.
This is indeed a perplexing question for a bureaucracy. Interrogation is a professional activity that is done for the government. An interrogator must know, in advance, what the limits of his or her authority are. It is difficult to expect that interrogators constantly expose themselves to the risk of criminal prosecution by using illegal interrogation techniques that may or may not yield information that saves lives.
For executive lawyers, this means suggesting (in advance) that the necessity defense will indeed apply and protect interrogators doing their day-to-day work. Of course, both memos recognize that there is no a priori authorization allowed under the necessity defense. But saying that while writing a document anticipating future cases is quite the paradoxical exercise. Both documents step towards legalizing something that law has deemed un-legalizable. They both engage in a strange form of lawyerly acrobatics.
Yet there are also important differences in orientation between the two executive branches, Israeli and American.
In the Israeli case, Rubinstein’s memo seems to step further away from the traditional “necessity defense,” which is analogous to the more familiar exemption from responsibility due to self-defense. Being directly bound by the Israeli Supreme Court precedent, he bypasses the Court’s precedent by providing for internal guidelines about not prosecuting interrogators. This creates a measure of predictability and normalization of physical pressure, which is still not evidenced in this aspect of the American version of the necessity defense for torture. Protocol: that is what a bureaucracy requires.
Another dissimilarity between the documents cuts in a different way, reflecting how the CIA sought a more expansive defense for abusive interrogators under the “necessity defense.” Rubinstein makes clear that the necessity defense only applies with regard to interrogation methods that fall short of the “torture” definition in the Convention Against Torture. CIA lawyers go further than Rubinstein, expanding once again the implicit authorization for future cases, beyond what is merely inhuman and degrading treatment.
In the final lines of the CIA memo, it is clear that CIA lawyers believe that necessity can cover not only “moderate physical pressure” (this was the Israeli euphemism) or “enhanced interrogation methods” (the American one). The explicit reference to “torture” allows the “necessity defense” to cover even the most painful and abusive of interrogation acts, those that, as Jay Bybee would later explain in a now-infamous turn of the phrase, entail pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
• • •
On a more general level, there is a lesson to be learned from the United States’s decision to turn to the Israeli precedent.
Public Committee assumes that Israel is a liberal democracy responding to terrorist attacks (as does Goldstone in his praise for the judgment, from 2005). The latter part of this proposition is no doubt true. But the formulation requires isolating torture from the form of governance Israel put in place with respect to Palestinians under its direct and seemingly permanent control. But it is questionable if such a separation is really possible. How can Israel stop using physical force when it won’t stop the situation that necessitates it in the first place?
As the 1987 Landau Commission exposed, some form of physical pressure in interrogation was part of this regime at least since the occupation of the West Bank and Gaza in 1967. This Commission, headed by the former Supreme Court Justice (who had earlier presided over the Eichmann case), is in some ways comparable to the Senate Select Committee. It was put together to explore the depth of detainee abuse. Unlike the Senate Committee, it ended up recommending the legalization of “moderate physical pressure,” deemed necessary for national security purposes.
As interrogators who spoke with the commission back then explained, their foiling and enforcement activities enjoyed no legitimacy with the Palestinian population in the West Bank. Within Palestinian communities, often, no witnesses would step forward. Interrogators were thus “pushed” into methods that were never applied within a democratic context in which enforcement authorities are perceived as guardians of the population. Justice Barak overturned the Landau Commission’s recommendations to legalize abuse. But of course, his Herculean power as a judge couldn’t bestow democratic legitimacy on a security agency that didn’t have it. The underlying motivation for abuse outlived his presidency of the Court.
How does this relate to the United States? The endurance of forceful interrogation in Israel, even after the Israeli Supreme Court seemingly banned it, reflects an inability to abolish such methods. This reality has been documented by several important Israeli human right organizations, chiefly the Public Committee Against Torture, who initially brought the 1999 case to court. The most important question about torture and other abusive interrogation is not whether it is “civilized” or not. It is what kind of political reality it makes possible, and what kind of political reality it preserves. In the Israeli context, this was and remains an intractable political reality of undemocratic military control over a civilian population.
Thirteen years after 9/11, leading legal academics decry America’s “forever war” (as Harold Koh called it). The perpetrators of torture remain immune from prosecution. And somewhat surprisingly, last week CIA director John Brennan refused to say that the agency will no longer engage in torture. All these reflect a similar inability to move forward. The future of torture in America is all but guaranteed.
This will likely remain the case, as long as the “forever war” is still going on; for there is a deep relationship of correspondence between torture and political reality. As novelist J.M. Coetzee once explained, “torture provide[s] a metaphor, bare and extreme,” for relations between a government and its victims.
By importing a model of authorized torture, or at least of turning a blind eye, the United States has also solidified the political project that made it possible. The criminal prosecutions of interrogators, which Koh also called for last week, will only be possible once Americans put an end to the war that allowed torture its legal justification.
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December 15, 2014
8 Min read time