The Global Zeitenwende
How to Avoid a New Cold War in a Multipolar Era
Lost in the debate over the brutal techniques used to interrogate al Qaeda suspects has been one of the U.S. legal advisers’ key justifications for the program: the “Israeli example," which, they argued, established that torture is permissible as a last resort when "necessary to prevent significant physical harm” to civilians.
On the surface, Israel might seem like a useful precedent for those arguing that so-called enhanced interrogation isn’t beyond the pale. As a democracy facing a huge volume of terrorist attacks—with a legislature and a judiciary that have publicly scrutinized the legality of “moderate physical pressure”—Israel is unique. Yet a closer look reveals that Israel ultimately rejected the very “ticking time bomb” logic that some U.S. commentators and former officials still rely on to defend techniques such as waterboarding.
Israel’s soul-searching over harsh interrogation started and ended with its Supreme Court. In 1987, the court heard an appeal from former Israel Defense Forces Lieutenant Izat Nafsu, a member of the Circassian minority group convicted of treason for passing sensitive information to a pro-Syrian Palestinian operative in Lebanon. The court overturned his conviction, ruling that Israel’s internal security service had coerced his confession by subjecting him to abusive tactics, including prolonged sleep deprivation and exposure to extreme cold.
As a result of the Nafsu affair, Israel created a special commission headed by former Supreme Court President Moshe Landau to investigate whether these interrogations were legal. When lives were in imminent danger, the commission found, Israeli law gave interrogators the authority to use “moderate physical pressure” on suspected terrorists. In particular, the Landau Commission validated the ticking-time-bomb argument, finding that "actual torture … would be perhaps be justified in order to uncover a bomb about to explode in a building full of people … whether the charge is certain to be detonated in five minutes or in five days."
But that standard was short-lived.
In 1999, the Israeli Supreme Court outlawed all coercive interrogations, even as terrorist attacks were increasing in scope and severity. To reach that decision, the court evaluated five interrogation methods: two stress positions (known as the Shabach position and the frog crouch), excessive tightening of handcuffs, violent shaking, and sleep deprivation. (By all accounts, waterboarding was never part of the Israeli debate.) Because international treaties to which Israel is a party unambiguously ban torture and inhumane treatment, the court held that there is “no room for balancing” a detainee’s human rights with national security interests.
The Israeli Supreme Court then turned to the problematic ticking-time-bomb hypothetical. Here, the court explicitly rejected the Landau commission’s logic. Because tactics such as stress positions and sleep deprivation were prohibited as a matter of law, they could never be authorized as a matter of policy. As such, interrogators couldn't escape prosecution by claiming to be acting out of necessity or following orders.
The court did leave open the possibility that interrogators could escape conviction in legitimate ticking-time-bomb scenarios by defending themselves in a court of law. Still, whether harsh interrogation was truly necessary would depend on the specific facts at issue. How credible was the intelligence that a bomb was about to go off or that an attack was about to occur? How tight was the time frame? How harsh were the tactics used? This kind of information can be impartially evaluated only by a transparent criminal justice system. In essence, the court shifted the burden onto the interrogators’ shoulders, implying that using coercive methods could lead to jail time.
But less than three years later, U.S. legal advisers appear to have misconstrued the Israeli example. In August 2002, the U.S. Office of Legal Council (OLC) cited the ticking-time-bomb scenario to "justify interrogation methods that might violate" the criminal prohibition against torture. Indeed, the OLC memo was crafted to provide blanket authorization for these tactics. The same day, the OLC issued a memorandum that authorized the waterboarding of Abu Zubaydah, one of Osama bin Laden’s key lieutenants, for the first time.
To be sure, the CIA was grappling with a shadowy and resilient foe. After 9/11, intelligence was streaming in that al Qaeda was trying to acquire weapons of mass destruction; in Afghanistan, for instance, U.S. soldiers found a makeshift biological weapons lab and plans to deploy anthrax using weather balloons. In the hands of CIA interrogators, however, the ticking-time-bomb logic was stretched past the breaking point. For example, the OLC’s memorandum relied on the CIA’s “certainty” that, because of his leadership role in al Qaeda, Zubaydah must be withholding information about imminent terrorist attacks. Yet the Senate report found that enhanced interrogation techniques produced no actionable intelligence from Zubaydah. In fact, the FBI agent tasked with his initial interrogation maintains that Zubaydah was cooperative and providing highly useful information before being waterboarded.
Had CIA and DOJ legal advisers actually heeded the Israeli example, the scandals described in the recent Senate report could have been avoided. But given the lack of judicial oversight, CIA overreach was probably inevitable. Twisted and taken to its logical extreme, the ticking-time-bomb logic became the interrogators’ mantra, justifying ever more extreme methods. According to the recent Senate report, al Qaeda detainees were shackled in “dungeons,” waterboarded to the point of “near drowning,” and deprived of sleep for days in stress positions or “coffin-shaped” boxes. As a result, even some of the program’s staunchest defenders have acknowledged that it strayed into criminal territory. Those still defending the U.S. interrogation program would do well to take another hard look at the Israeli example. In the words of Aharon Barak, the then Israeli chief justice, a “democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth.”