[News] CIA cites Israeli court ruling to “justify” torture program

Anti-Imperialist News news at freedomarchives.org
Wed Dec 10 12:29:28 EST 2014


  CIA cites Israeli court ruling to “justify” torture program

Submitted by Rania Khalek on Wed, 12/10/2014 - 10:33
*http://electronicintifada.net/blogs/rania-khalek/cia-cites-israeli-court-ruling-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 
<http://electronicintifada.net/blogs/rania-khalek/obama-cites-israeli-supreme-court-justify-killing-americans-without-trial> 
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 
<http://www.intelligence.senate.gov/study2014/sscistudy1.pdf> 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 <http://articles.latimes.com/1999/sep/07/news/mn-7626> 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 
<http://www.theguardian.com/world/1999/sep/07/israel> the ruling at the 
time, declaring it a victory for democracy.

In reality, the decision 
<http://www.btselem.org/download/hc5100_94_19990906_torture_ruling.pdf> 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 
<http://adalah.org/eng/Articles/2285/Adalah-to-Attorney-General> 
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 
<http://electronicintifada.net/blogs/ali-abunimah/israel-put-palestinian-children-outdoor-cages-during-winter-storm> 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 
<http://www.stoptorture.org.il/en/skira1999-present>” — 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 
<http://electronicintifada.net/blogs/charlotte-silver/israeli-high-court-decision-enables-widespread-torture-palestinian-detainees> for 
Israeli torturers. Of the more than 800 complaints of torture submitted 
by Palestinian prisoners since 2001, exactly zero 
<http://www.militarycourtwatch.org/files/server/PCATI%20statement%20-%2016%20FEB%202014.pdf> 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,” Ginsberg told 
<http://www.nytimes.com/2009/04/12/us/12ginsburg.html> /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 
<http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx> 
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 
<http://thinkprogress.org/security/2013/05/01/1946641/un-gitmo-torture/> 
punishment.

To excuse his demand for the implementation of the excruciatingly 
painful 
<http://www.theguardian.com/world/video/2013/jul/08/mos-def-force-fed-guantanamo-bay-video> 
technique, wherein a tube is shoved through the nostril into the 
stomach, Netanyahu pointed to 
<http://www.haaretz.com/news/national/.premium-1.596901> 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 
<http://http://electronicintifada.net/tags/rasmea-yousef-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 
<http://electronicintifada.net/blogs/charlotte-silver/court-motion-details-palestinian-american-rasmea-odehs-torture-israeli>. 


At the behest of the Obama administration’s Justice Department, the 
trial judge barred 
<http://electronicintifada.net/blogs/charlotte-silver/judge-deals-major-blow-rasmea-odehs-defense> 
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 
<http://electronicintifada.net/blogs/ali-abunimah/rasmea-odeh-prolonged-solitary-confinement-michigan-jail> 
for no apparent reason until she was granted bail and released 
<http://electronicintifada.net/blogs/ali-abunimah/judge-orders-palestinian-american-rasmea-odeh-freed-bond> 
on Monday.

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 
<http://electronicintifada.net/blogs/rania-khalek/obama-cites-israeli-supreme-court-justify-killing-americans-without-trial> 
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 
<http://www.nytimes.com/2014/12/10/us/politics/for-dianne-feinstein-cia-torture-reports-release-is-a-signal-moment.html> 
Senate torture report that Tuesday’s release is based on. It makes one 
wonder what is being left out of the public record.

-- 
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