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<h1 class="title" id="page-title">CIA cites Israeli court ruling to
“justify” torture program</h1>
<div class="submitted">
<span property="dc:date dc:created"
content="2014-12-10T10:33:47+00:00" datatype="xsd:dateTime"
rel="sioc:has_creator">Submitted by <span class="username"
xml:lang="" about="/users/rania-khalek"
typeof="sioc:UserAccount" property="foaf:name" datatype="">Rania
Khalek</span> on Wed, 12/10/2014 - 10:33<br>
<b><small><small><small><a class="moz-txt-link-freetext" href="http://electronicintifada.net/blogs/rania-khalek/cia-cites-israeli-court-ruling-justify-torture-program">http://electronicintifada.net/blogs/rania-khalek/cia-cites-israeli-court-ruling-justify-torture-program</a></small></small></small></b><br>
</span> </div>
<div class="field-body">
<p>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.</p>
<p>This latest disclosure comes just months after revelations that
the Obama administration <a
href="http://electronicintifada.net/blogs/rania-khalek/obama-cites-israeli-supreme-court-justify-killing-americans-without-trial">relied</a>
on an Israeli high court ruling to justify targeted killings of
American citizens without trial. </p>
<p>Released Tuesday by the Senate Select Committee on
Intelligence after months of stalling, the nearly <a
href="http://www.intelligence.senate.gov/study2014/sscistudy1.pdf">600-page
report</a> 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. </p>
<p>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.</p>
<p>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.” </p>
<p>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.</p>
<h2>How to legalize torture</h2>
<p>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:</p>
<blockquote>
<p>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.”</p>
</blockquote>
<p>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.’”</p>
<p>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.”</p>
<h2>Israeli loopholes</h2>
<p>The “Israeli example” is a reference to the 1999 Israeli high
court <a
href="http://articles.latimes.com/1999/sep/07/news/mn-7626">decision</a>
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 <a
href="http://www.theguardian.com/world/1999/sep/07/israel">celebrated</a>
the ruling at the time, declaring it a victory for democracy. </p>
<p>In reality, the <a
href="http://www.btselem.org/download/hc5100_94_19990906_torture_ruling.pdf">decision</a> 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.)</p>
<p>Till this day Israeli torture of Palestinian prisoners remains
widespread and no Palestinian is immune, not even children, who
are <a
href="http://adalah.org/eng/Articles/2285/Adalah-to-Attorney-General">systematically</a>
subjected to solitary confinement, sensory deprivation and
stress positions in Israeli custody. </p>
<p>Last winter, Israeli cruelty reached new heights when its
prison services placed Palestinian child detainees in <a
href="http://electronicintifada.net/blogs/ali-abunimah/israel-put-palestinian-children-outdoor-cages-during-winter-storm">outdoor
cages</a> during one of the most severe winter storms to
strike the region in years. </p>
<p>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 “<a
href="http://www.stoptorture.org.il/en/skira1999-present">necessity
defense</a>” — 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. </p>
<p>Such loopholes have led to <a
href="http://electronicintifada.net/blogs/charlotte-silver/israeli-high-court-decision-enables-widespread-torture-palestinian-detainees">absolute
impunity</a> for Israeli torturers. Of the more than 800
complaints of torture submitted by Palestinian prisoners since
2001, <a
href="http://www.militarycourtwatch.org/files/server/PCATI%20statement%20-%2016%20FEB%202014.pdf">exactly
zero</a> have led to criminal investigations despite the state
corroborating at least 15 percent of the torture allegations,
according to PCATI.</p>
<p>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. </p>
<h2>A ticking time bomb fiction</h2>
<p>Strangely, even notable anti-torture liberals have been duped
into believing that Israel banned torture.</p>
<p>US Supreme Court Justice Ruth Bader Ginsburg has cited the
Israeli high court decision on torture as an exemplary ban the
US should emulate.</p>
<p>“The police think that a suspect they have apprehended knows
where and when a bomb is going to go off,” Ginsberg <a
href="http://www.nytimes.com/2009/04/12/us/12ginsburg.html">told</a>
<em>The New York Times</em>. “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,’”</p>
<p>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.” </p>
<p>Ginsburg’s takeaway from the Israeli decision is as
erroneous as her racist portraryal of a Palestinian “enemy”
lacking in “human dignity.” </p>
<p>Far from banning torture altogether, the Israeli decision
includes an unambiguous exemption for the hypothetical scenario
Ginsburg lays out.</p>
<p>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.</p>
<p>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.</p>
<p>But even if it did, <a
href="http://www.ohchr.org/EN/ProfessionalInterest/Pages/CAT.aspx">Article
2 of the Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment</a> 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.”</p>
<h2>Turning to Israel for inspiration</h2>
<p>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.</p>
<blockquote>
<p>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.”</p>
</blockquote>
<p>The corresponding footnote adds:</p>
<blockquote>
<p>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.”</p>
</blockquote>
<p>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.”</p>
<h2>Sharing values</h2>
<p>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. </p>
<p>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 <a
href="http://thinkprogress.org/security/2013/05/01/1946641/un-gitmo-torture/">cruel
and inhumane</a> punishment.</p>
<p>To excuse his demand for the implementation of
the excruciatingly <a
href="http://www.theguardian.com/world/video/2013/jul/08/mos-def-force-fed-guantanamo-bay-video">painful</a>
technique, wherein a tube is shoved through the nostril into the
stomach, Netanyahu <a
href="http://www.haaretz.com/news/national/.premium-1.596901">pointed
to</a> US force-feedings at Guantanamo Bay. </p>
<p>When it comes to torture, few people understand the shared
values that unite the US and Israel better than <a
href="http://http://electronicintifada.net/tags/rasmea-yousef-odeh">Rasmea
Odeh</a>.</p>
<p>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 <a
href="http://electronicintifada.net/blogs/charlotte-silver/court-motion-details-palestinian-american-rasmea-odehs-torture-israeli">Israeli
sexual torture</a>. </p>
<p>At the behest of the Obama administration’s Justice Department,
the trial judge <a
href="http://electronicintifada.net/blogs/charlotte-silver/judge-deals-major-blow-rasmea-odehs-defense">barred</a>
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 <a
href="http://electronicintifada.net/blogs/ali-abunimah/rasmea-odeh-prolonged-solitary-confinement-michigan-jail">solitary
confinement for twelve consecutive days</a> for no apparent
reason until she was granted bail and <a
href="http://electronicintifada.net/blogs/ali-abunimah/judge-orders-palestinian-american-rasmea-odeh-freed-bond">released</a>
on Monday. </p>
<p>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.</p>
<p>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. </p>
<p><a
href="http://electronicintifada.net/blogs/rania-khalek/obama-cites-israeli-supreme-court-justify-killing-americans-without-trial">Invented
by Israel</a> for use against Palestinian leaders,
extrajudicial targeted killings are now the centerpiece of the
Obama administration’s counterterrorism policy. </p>
<p>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. </p>
<p>So, how much did Israel influence the CIA? Perhaps the answer
can be found in the original <a
href="http://www.nytimes.com/2014/12/10/us/politics/for-dianne-feinstein-cia-torture-reports-release-is-a-signal-moment.html">6,000-page
still classified</a> Senate torture report that Tuesday’s
release is based on. It makes one wonder what is being left out
of the public record. </p>
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