Senate Torture Report: Where did the US government look to develop its legal defense of so-called ‘enhanced interrogation techniques’?

By Edith Garwood, Country Specialist for Israel/OPT/Palestine, Amnesty International USA

Where did the United States look to develop its own legal defense for the use of ‘Enhanced Interrogation Techniques’? The U.S. looked to, and explicitly cited, Israel’s High Court decision of 1999. The High Court had already gone through the legal gymnastics of defending its own state sanctioned torture of detainees.

The release of the movie, The Report, the recent International Criminal Court (ICC) hearing on alleged war crimes by the US military and CIA officials after the 9/11 attacks and busy 2020 hearing schedule at Guantanamo Bay Detention Facility has increased public interest in the US Torture Program or use of ‘Enhanced Interrogation Techniques’.

The Report covers the Senate Intelligence Committee’s investigation and release of the 500+ page executive summary of their findings. The summary, in part, documents how the CIA scrambled to find a legal argument to legally defend the use of torture on captured detainees so U.S. personnel couldn’t be prosecuted later.

In the 90’s, Israel had to address the findings of an internal investigation on interrogation techniques used by Israel’s General Security Services (GSS) prompted by the death of Palestinian detainees while in custody. It was found that techniques used could amount to torture and that the GSS regularly lied in court to cover up this fact which then left GSS personnel vulnerable to prosecution for perjury.

In 1999, Israel’s High Court ruled that while torture and other forms of ill-treatment were generally prohibited, interrogators who used “moderate physical interrogation methods” in “ticking time-bomb” situations (aka the ‘necessity defense’) would be exempt from investigation and criminal prosecution.

There are several problems with that defense -

1. It is irrelevant as torture is prohibited absolutely;

2. Despite popular belief, according to experts in interrogation and the intelligence community, the “ticking time bomb” scenario is extremely rare;

3. The legal caveat is a slippery slope, often resulting in interrogators going beyond ‘moderate physical pressure’.

Since the court’s decision, Israeli interrogators have tortured hundreds of Palestinians, citing the ‘necessity defense’. Torture and other forms of ill-treatment have been documented even on detained children.

Matter of fact, Samir Arbeed, a Palestinian detained by Israeli authorities, is still in the hospital recovering from broken ribs and kidney failure after suffering state-sanctioned torture at the hands of the Shin Bet, Israel’s security agency, during interrogation in September.

While the Israeli Justice Ministry has launched an investigation into how Samir Arbeed’s interrogation was conducted and what level of violence was used, the fact is — not one interrogator has ever been prosecuted since 1999.

Despite CIA statements that coercive physical and psychological interrogation techniques “result in false answers” and have “proven to be ineffective,” on November 26, 2001, attorneys in the CIA’s Office of General Counsel (OLC) circulated a draft legal memorandum which cited the “Israeli example” as a possible basis for arguing that “torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm.”

Subsequent documents and throughout the life of US use of torture, the legal justifications for the CIA’s ‘enhanced interrogation techniques’ relied on the CIA’s claim that the techniques were necessary to save lives.

For example, the OLC included the “necessity defense” in its memorandum to the White House counsel, Standards of Conduct for Interrogation, on August 1, 2002. The OLC determined that “under the current circumstances, necessity or self- defense may justify interrogation methods that might violate” the criminal prohibition against torture and explicitly cites the 1999 Israeli High Court decision.

Under international law, torture and other forms of ill-treatment are always illegal. 173 countries are party to the International Covenant on Civil and Political Rights, which prohibits torture and other forms of ill-treatment, and 169 countries are party to the UN Convention against Torture, which Amnesty International campaigned hard to create.

Governments must implement effective safeguards against torture and other ill-treatment. These safeguards include prompt access of detainees to lawyers, families and courts, monitoring of interrogations, allowing independent checks on all places of detention, independent and effective investigations of torture allegations, the prosecution of suspects, and proper redress for victims.

Israeli authorities must end their systematic use of torture and ensure that those responsible for the torture of Samir Arbeed, including those with command and other superior responsibility, are held accountable.

The US government must release the full Senate Select Committee on Intelligence report with as few redactions as possible, and none that obscure evidence of human rights violations, with those responsible being held accountable.

And if the United States continues to lack the political will to investigate those suspected of criminal responsibility for war crimes, the ICC Prosecutor must meet the challenge and hold investigations into the alleged crimes under international law committed in Afghanistan since 2003, including torture, and provide truth, justice and reparations for the victims.