"This is the destiny of a democracy"

In 1999, the Supreme Court of Israel took up the question of counterterrorism interrogation methods. The Israeli General Security Service (GSS) had been using "moderate physical pressure" in interrogations of suspected terrorists. Several prisoners petitioned the court to declare some of these interrogation methods illegal.

The summary of the judgment is here. The court held unanimously that "to shake a suspect, to hold him in painful positions for a lengthy period, or to deprive him of sleep" was illegal in Israel. The full opinion of the court is an eloquent exposition of the limitations of humane society:

This decision opened with a description of the difficult reality in which Israel finds herself. We conclude this judgment by revisiting that harsh reality. We are aware that this decision does make it easier to deal with that reality. This is the destiny of a democracy -- it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties.

This having been said, there are those who argue that Israel's security problems are too numerous, and require the authorization of physical means [of interrogation]. Whether it is appropriate for Israel, in light of its security difficulties, to sanction physical means is an issue that must be decided by the legislative branch, which represents the people. We do not take any stand on this matter at this time. It is there that various considerations must be weighed. The debate must occur there. It is there that the required legislation may be passed, provided, of course, that the law "befit(s) the values of the State of Israel, is enacted for a proper purpose, and (infringes the suspect's liberty) to an extent no greater than required." See article 8 of the Basic Law: Human Dignity and Liberty.

Deciding these petitions weighed heavily on this Court. True, from the legal perspective, the road before us is smooth. We are, however, part of Israeli society. Its problems are known to us and we live its history. We are not isolated in an ivory tower. We live the life of this country. We are aware of the harsh reality of terrorism in which we are, at times, immersed. The possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us. We are, however, judges. We must decide according to the law. This is the standard that we set for ourselves. When we sit to judge, we ourselves are judged. Therefore, in deciding the law, we must act according to our purest conscience. [...]

The Commission of Inquiry [Regarding the Interrogation Practices of the GSS with Respect to Hostile Terrorist Activities] pointed to the "difficult dilemma between the imperative to safeguard the very existence of the State of Israel and the lives of its citizens, and between the need to preserve its character -- a country subject to the rule of law and basic moral values." The commission rejected an approach that would consign our fight against terrorism to the twilight shadows of the law. The commission also rejected the "ways of the hypocrites, who remind us of their adherence to the rule of law, even as they remain willfully blind to reality." Instead, the Commission chose to follow "the way of truth and the rule of law." In so doing, the Commission of Inquiry outlined the dilemma faced by Israel in a manner open to examination to all of Israeli society.

Consequently, it is decided that the order nisi [prohibiting these interrogation methods] be made absolute. The GSS does not have the authority to "shake" a man, hold him in the "Shabach" position (which includes the combination of various methods, as mentioned in paragraph 30), force him into a "frog crouch" position and deprive him of sleep in a manner other than that which is inherently required by the interrogation. Likewise, we declare that the "necessity defense," found in the Penal Law, cannot serve as a basis of authority for interrogation practices, or for directives to GSS investigators, allowing them to employ interrogation practices of this kind.

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| Report submitted to the Power Desk