Enhanced interrogation of Hamas operative not illegal torture, rules High Court

The High Court of Justice ruled on Monday that the enhanced interrogation by the Shin Bet (Israel Security Agency) of Hamas operative Fires Tavish in September 2012 was not illegal torture, even though it caused him to vomit.

A three-justice panel of Yitzhak Amit, David Mintz and Yosef Elron also held that the current policy in which the Shin Bet receives mid-interrogation legal guidance from the attorney-general’s office is legal.

The decision follows a similar decision in December 2017 which appears to have made it significantly easier for the Shin Bet to justify enhanced interrogation than many legal scholars presumed, since a 1999 High Court decision declared torture illegal.

Combined, the two rulings are extremely rare examples where the Shin Bet has publicly admitted using enhanced interrogation, but defended its use.

Tavish’s lawyers from the Public Committee Against Torture in Israel (PCATI) said that the Shin Bet used illegal torture, such as the painful “banana” position – which pressures the back – among other painful positions, repeated beatings and illegal threats. His lawyers demanded that the two Shin Bet interrogators be brought to trial.

Furthermore, his lawyers said that the High Court’s own landmark 1999 decision declaring torture illegal said that the Shin Bet can never get permission to use enhanced interrogation – a form of moderate physical pressure which the court has said is short of torture – rather can only get post-interrogation approval for its actions.

According to PCATI, the reason for this distinction is to discourage enhanced interrogation in any but the most serious ticking bomb cases – or where there is a chance to uncover and stop an imminent attack.

This will make interrogators think hard about going too far since they will not find out until later whether their actions were legal.

Although the Justice Ministry’s special investigator of torture allegations against the Shin Bet, Jana Modgavrishvili, found that the agency’s enhanced interrogation had caused Tavish to vomit, both she and the court said the interrogation was legal.

First, the court said that the evidence that the Shin Bet had used the “banana” position and other measures that would be considered torture was too mixed to support PCATI’s accusations.

According to the court, there are discrepancies between what Tavish and different medical experts have reported as at different times. PCATI would say that Tavish’s later accounts of greater physical harm from the interrogation were more accurate since his earlier fears of retribution if he complained had already receded.

But the court found that Tavish’s leaving out some of his later complaints in realtime close to the event was more credible than his later complaints.

In that light, the court said that lighter forms of permitted moderate physical pressure had been used, and in the instance where Tavish had vomited, the interrogation was stopped, he was showered, brought new clothes and examined by a doctor before any further questioning.

Second, the court said that Tavish was only subjected to enhanced interrogation from September 18-21, 2012, after weeks of refusing to cooperate, and since the Shin Bet had strong evidence he was withholding information which could lead to preventing terror attacks.

In fact, the court found that information which he provided in two separate enhanced interrogation rounds helped locate Hamas weapons which had been used for terrorist attacks in the past and were to be used for future attacks.

While PCATI said that finding hidden weapons does not meet the “ticking bomb” standard that the High Court set in 1999, the court disagreed and said that the Shin Bet does not need to know exactly when a future terrorist strike would occur.

Moreover, the court said that the terrorist attack did not need to be imminent – or at risk of occurring that day, as long as the agency believed it might not be able to prevent the incident in the near future if it did not immediately act.

The High Court said that the necessity to use enhanced interrogation to stop a ticking bomb attack was not merely an excuse but could be used to fully justify using moderate physical pressure at any stage in the process.

This decision may go beyond the December 2017 decision, which aimed to reduce obstacles for the Shin Bet in interrogation measures.

•