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
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