CIA cites Israeli court ruling to “justify” torture program

The CIA repeatedly cited an Israeli high court decision to justify torture, according to the long-awaited US Senate report on the agency’s torture program.

This latest disclosure comes just months after revelations that the Obama administration relied on an Israeli high court ruling to justify targeted killings of American citizens without trial. 

Released Tuesday by the Senate Select Committee on Intelligence after months of stalling, the nearly 600-page report discloses new details about the atrocities that took place at the CIA’s network of rendition and torture sites created in the aftermath of the 11 September 2001 attacks. 

The CIA’s torture techniques — which included water-boarding, sleep and sensory deprivation, sexual torture, threats to kill and rape loved ones, mock executions, electrocution and medically unnecessary “rectal feeding” — were far more gruesome and pervasive than the agency let on.

Furthermore, the report explicitly states that the CIA lied about the torture program’s effectiveness, falsely claiming its techniques successfully extracted information that thwarted terrorist plots, including a fabricated attack “in Saudi Arabia against Israel.” 

As the CIA engaged in a deceptive propaganda campaign to mislead the American public about the program’s lawfulness and effectiveness, it relied on Israeli precedent as a legal defense.

How to legalize torture

As early as November 2001, CIA officials began brainstorming possible legal justifications for torture techniques they were already employing at black sites around the globe, culminating in a draft memorandum described by the Senate report as follows:

On 26 November 2001, attorneys in the CIA’s Office of General Counsel circulated a draft legal memorandum describing the criminal prohibition on torture and a potential “novel” legal defense for CIA officers who engaged in torture. The memorandum stated that the “CIA could argue that the torture was necessary to prevent imminent, significant, physical harm to persons, where there is no other available means to prevent the harm,” adding that “states may be very unwilling to call the US to task for torture when it resulted in saving thousands of lives.”

According to the corresponding footnote, the November memo “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.’”

The “Israeli example” was invoked again the following year in an official memorandum to the White House Office of Legal Council to the President on 1 August 2002, which “include[d] a similar analysis of the ‘necessity defense’ in response to potential charges of torture.”

Israeli loopholes

The “Israeli example” is a reference to the 1999 Israeli high court decision that supposedly outlawed the use of torture — the Israeli euphemism for which is “moderate physical pressure” — to extract confessions from Palestinian prisoners, a longstanding and widespread practice up until that time. The Israeli human rights group B’Tselem celebrated the ruling at the time, declaring it a victory for democracy. 

In reality, the decision was filled with obvious loopholes and merely limited the circumstances under which torture techniques could be legally employed. (Israel’s high court is also known as its supreme court.)

Till this day Israeli torture of Palestinian prisoners remains widespread and no Palestinian is immune, not even children, who are systematically subjected to solitary confinement, sensory deprivation and stress positions in Israeli custody. 

Last winter, Israeli cruelty reached new heights when its prison services placed Palestinian child detainees in outdoor cages during one of the most severe winter storms to strike the region in years. 

As the Public Committee Against Torture in Israel (PCATI) has argued, not a great deal has changed since the 1999 ruling due in large part to the high court’s inclusion of the “necessity defense” — a loophole that immunizes interrogators who use torture techniques from being held criminally liable based on the argument that they had to do it out of “necessity” to prevent loss of or harm to human life. 

Such loopholes have led to absolute impunity for Israeli torturers. Of the more than 800 complaints of torture submitted by Palestinian prisoners since 2001, exactly zero have led to criminal investigations despite the state corroborating at least 15 percent of the torture allegations, according to PCATI.

It is also notable that even the CIA methods revealed in the Senate report bear striking similarity to long-standing Israeli torture techniques documented by human rights organizations, among them sleep deprivation, exposure to extreme cold, confinement in very small spaces and painful “stress positions.” These are techniques that are thought to inflict maximum suffering while minimizing the risk that they will leave tell-tale signs of torture on the victim’s body. 

A ticking time bomb fiction

Strangely, even notable anti-torture liberals have been duped into believing that Israel banned torture.

US Supreme Court Justice Ruth Bader Ginsburg has cited the Israeli high court decision on torture as an exemplary ban the US should emulate.

“The police think that a suspect they have apprehended knows where and when a bomb is going to go off,” Ginsburg told The New York Times. “Can the police use torture to extract that information? And in an eloquent decision by Aharon Barak, then the chief justice of Israel, the court said: ‘Torture? Never.’”

According to Ginsburg, the Israeli ruling sent the message “that we could hand our enemies no greater victory than to come to look like that enemy in our disregard for human dignity.” 

Ginsburg’s takeaway from the Israeli decision is as erroneous as her racist portraryal of a Palestinian “enemy” lacking in “human dignity.” 

Far from banning torture altogether, the Israeli decision includes an unambiguous exemption for the hypothetical scenario Ginsburg lays out.

In the event of a “ticking time bomb” scenario, the Israeli decision states that “necessity defense” gives Israeli interrogators discretion to employ torture to extract information to stop an explosive from detonating.

It should be noted that even the Senate report concedes that the “ticking time bomb” so often invoked by torture enthusiasts has no basis in reality.

But even if it did, Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment states: ”No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Turning to Israel for inspiration

In a desperate bid to keep the torture program alive amid growing (albeit weak) pressure from Congress in 2005, a CIA official once again turned to Israel for inspiration and a legal rationale:

The CIA attorney described the “striking” similarities between the public debate surrounding the McCain amendment [a proposed ban on torture] and the situation in Israel in 1999, in which the Israeli Supreme Court had “ruled that several … techniques were possibly permissible, but require some form of legislative sanction,” and that the Israeli government “ultimately got limited legislative authority for a few specific techniques.”

The corresponding footnote adds:

The CIA attorney also described the Israeli precedent with regard to the “necessity defense” that had been invoked by CIA attorneys and the Department of Justice in 2001 and 2002. The CIA attorney wrote that the Israeli Supreme Court “also specifically considered the ‘ticking time bomb’ scenario and said that enhanced techniques could not be pre-approved for such situations, but that if worse came to worse, an officer who engaged in such activities could assert a common-law necessity defense, if he were ever prosecuted.”

This suggestion was adapted into a 20 July 2007 memorandum authored by then Principal Deputy Assistant Attorney General for the Office of Legal Counsel Steven G. Bradbury, who argued that based on the Israeli court case, CIA torture is “clearly authorized and justified by legislative authority.”

Sharing values

It should come as no surprise that the US is following Israel’s lead on torture given that the two nations feed off of one another’s atrocities. 

When Palestinian prisoners launched a hunger strike earlier this year to protest their indefinite detention, Israeli Prime Minister Benjamin Netanyahu attempted to push through the Knesset, Israel’s parliament, a bill that would permit the force-feeding of prisoners. According to human rights groups, force-feeding amounts to cruel and inhumane punishment.

To excuse his demand for the implementation of the excruciatingly painful technique, wherein a tube is shoved through the nostril into the stomach, Netanyahu pointed to US force-feedings at Guantanamo Bay. 

When it comes to torture, few people understand the shared values that unite the US and Israel better than Rasmea Odeh.

The 67-year-old Palestinian American activist was convicted last month of immigration fraud for failing to disclose a 1969 Israeli military court conviction based on a confession extracted under weeks of Israeli sexual torture

At the behest of the Obama administration’s Justice Department, the trial judge barred the jury from hearing evidence about Odeh’s torture, protecting and ultimately legitimizing Israel’s system of abuse. Meanwhile, Odeh was subjected to further torture, this time at the hands of the US government, which placed her in solitary confinement for twelve consecutive days for no apparent reason until a judge ordered on Monday that she could be released on bail. 

While the depth of collusion between the US and Israeli torture programs has yet to be fully unearthed there is reason to suspect that some US methods were modeled on Israel’s.

Since the 11 September 2001 attacks, the US has fashioned much of its counterterrorism strategy on Israel’s decades-long suppression of Palestinian resistance to its colonial ambitions. 

Invented by Israel for use against Palestinian leaders, extrajudicial targeted killings are now the centerpiece of the Obama administration’s counterterrorism policy. 

Like its targeted killing policy, Israel has spent decades perfecting torture techniques on Palestinian prisoners, designed to maximize the suffering while leaving behind few visible scars. 

So, how much did Israel influence the CIA? Perhaps the answer can be found in the original 6,000-page, still-classified Senate torture report that Tuesday’s release is based on. It makes one wonder what is being left out of the public record. 

Editor’s note: an earlier version of this post stated that Rasmea Odeh was released from US detention on Monday. It since been corrected.

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Comments

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While the CIA is in the business of citing other nations' justifications for
torture, there are a number of other "sources" as well. They could cite
ISIS and its legal justifications, Egypt (suported by the US), Syria or Morocco or
Jordan which have tortured at the behest of the CIA's "extraordinary renditions"
program (for free?)....

On the other hand, they could also cite other UN agreements to which the
US is a signatory.

But then..that might be dangerous bases on which the US governement could rest its case . Neither the US, nor Israel wants its actions to come under international judgement in any area. The recent vote in the UN on arms
is one of a multitude of proofs of this with only the US and Israel voting
against the control and principles of international law.

-------Peter Loeb, Boston, MA USA

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As a North American 44 Jew, originally from an upper-middle class family, with strong ties to Israel, my childhood, like others, was filled with indoctrination techniques. We were told that " The Arabs hate us because we are Jewish, just like the Nazi's did", and that "Arabs are different than the rest of us". I had questions, but told they were wrong and embarrassing to our family. Just shut up, it's no big deal. But it was. In 1985, my mother sent me to The Occupied Territory, through our Conservative synagogue, to "enrich my Jewishness". I worked on stolen land (kibbutz), where empty buildings full of bullets, were once "someone else's home", end of story. Then, I and the rest of the kids were taken to visit the "very hostile border" between Jordan and Israel on the very same day we visited the Holocaust Museum, where some of the other kids found names of deceased relatives. Later that day, we were all asked what we had learned from that day's visits. I said nothing, because of the traumatic events of the day before, after watching two IDF soldiers, harass an elderly Palestinian man, with big smiles on their faces, which to this day, is seared into my brain. A lot of the kids just gave a recap, until one of the trips leaders, stood up, and said, "Never again". She told us, "the Arabs hate us", "the Nazi's hate us". We, as Jews must always fight our enemies. I came home, asked questions, and was shunned for believing that the Land For Piece idea, back in the late 1980's was a good thing. I was taught to not steal too, so returning something to someone, made sense. In the last few years, I have stepped up my support of Palestinian rights. I get upset sometimes, when I read or see things. I actually scream out loud from the pain of doing my duty - bearing witness. I know to some, my use of indoctrinate techniques, seem extreme or out of context. But it really feels that way to me. Especially being shunned for my feelings.
Jane

Rania Khalek

Rania Khalek's picture

Rania Khalek is an independent journalist reporting on the underclass and marginalized.