March 19, 2012
A recent decision to prevent the recording of security interrogation means a return to the norms of the witch trials.
The Israeli government recently made permanent a temporary order – in force for 11 years – that permits the police to avoid documenting security interrogations, Haaretz has reported (Hebrew). Regular criminal interrogations are taped; that will not be the case in matters of suspected security violations. We can safely assume that once the police are allowed not to tape an interrogation, they will not tape it. It saves resources, for starters.
The government’s decision creates a practical distinction between the rights of criminal suspects and security suspects. Criminal suspects have the right to demand, if they are prosecuted, their recorded interrogation which, theoretically, can allow them to prove their confession was forced, or that the description given by the police of what happened in the interrogation room is incorrect. It is a theoretical right because no Israeli court has ever found that such a suspect was tortured – except in very few cases, and almost always after the victims had already been jailed for quite some time.
Security suspects have no such rights. Actually, there will be no independent documentation of their interrogations. The courts will have to take the police’s word for what happened in the interrogation room. This will make it much harder for the accused to prove they were tortured. The problematic history of the police forces prompts a clear conclusion: we will soon have a secret police, whether formal or informal, composed of interrogators whose speciality will be torture.
This has several implications. First, torture leads to more false convictions. It is their function: the torturer is not looking for the truth, he is trying to extract a confession and close the file, and he is indifferent to the question of whether the broken person before him (and breaking a person is what torture is intended to do) is guilty or not. The point of torture, noted Orwell, is torture.
Secondly, such units attract sadists. That the torturer suffers more than the tortured is a myth told to sooth those of anxious conscience. Those sadists will then move on to other positions in the system, taking their unique work ethic with them. Thirdly, the use of torture degenerates the interrogator’s mind. He gets used to thinking that some pain and humiliation will obtain the desired result, and forgets how a true interrogation ought to be carried out. Should one need an example of this process, it is readily available in the abysmal record of the ISA (aka Shin Bet) in fighting Jewish terrorism. If torture is not an option, they can’t get the job done.
Fourth, and most worrying, is the fact that such units tend to expend their activities. The excuse of "public safety" is very wide indeed. After the ISA was denied the right to torture except in the case of "ticking bombs," there was a dramatic increase in the number of interrogations designated as such – even though the public was never supplied with a full and open description of a single ticking bomb case.
The police – which has for years served as an ISA auxiliary, with a police interrogator writing down the confession extracted by the ISA officer from a Palestinian detainee as if it was given of his free will – now claims that taping such interrogations may expose "investigative methods." That’s true. That, however, is also true in the case of criminal investigations. This is the price of the rule of law: it allows the suspect/accused the right to defend himself against the government, and that means that, from time to time, interrogations tricks are exhausted. That’s life. Deal with it.
It is also important to note that the definition of "security violations" is very wide indeed: it includes, inter alia, "a disturbance of the proper activity of the air and sea ports." In a country where a member of parliament – admittedly, a Homo Sovieticus from the USSR Beitenu party – seriously tables a bill calling for the administrative detention of football hooligans (Hebrew), the slope towards defining a port strike, and later a general strike, as a "security violation" is dangerously slippery.
And above it all hangs the fact that the confession is still "the queen of evidence" in Israeli courts – 300 and more years after terrified inquisitors finally understood, belatedly and after much blood was spilled, that it is the weakest of all evidence; that every human being has a breaking point and that a sadist interrogator will almost certainly find it; that some people are so weak in spirit, they may confess to crimes they did not commit even without being interrogated about them; that many suspects telling the judge they confessed of their own free will were told by the torturer, before the hearing, that if they won’t confess, "you’ll find out that so far, I’ve only been playing with you"; that a confession ends every other direction of investigation; and that they are very often false.
I want to cite from imperfect memory the letter of one of the victims of the witch hunts: "Dear daughter, tomorrow I will be burned at the stake for witchcraft. There is no truth in this, it is all lies – they torture you until you tell them what you want to hear. Remember your father as an honest man."
The witch hunts are relevant, because to a great degree they were "security violations" trials. You need to remember – admittedly, very hard after 300 years of skepticism brought on to a certain degree by the trials themselves – that the interrogators, torturers (often not the same people), judges and victims all believed that witchcraft – which is to say conspiracy with the greatest of the enemies of the human race and selling your soul to it – was a very real, present, ubiquitous phenomenon. Accordingly, the laws regarding what you may do to a witchcraft suspect were extraordinary. The use of torture became much more common (and in England, where torture was outlawed at an early stage, the use of torture against witchcraft suspects was tacitly permitted). The rights of the accused (such as the basic right to confront their accusers) were severely curtailed. The use of snitching – outlawed by the more enlightened of the Roman emperors – was frequent, and contact with the accused or publicly speaking for her (they were mostly women) became a reasonable basis for suspicion and arrest, which greatly curtailed the willingness of lawyers to defend the accused.
Our security apparatus routinely engages in witch hunting. It is watchful for every stray utterance, and employs a huge number of informants. It deprives its prisoners even of the vestigial right the inquisition granted its detainees: the right to name their enemies, and should the information against them come from one of them, go free. In the defense of the apparatus, it must be said that in its case there are "witches": there is a significant number of people conspiring against the Israeli public.
But the adoption of inquisitorial methods, the reliance on confession being the foremost, necessarily carries with it a huge rate of false convictions. The Landoy Commission in the 1980s found out the ISA routinely lied to the courts, denying they used torture, and piously wrote the judges were ignorant of it. If the movie "The Law in These Parts" changed anything – HUGE SPOILER HERE – it was by bursting this bubble. The judges knew torture was used, and they knew they were convicting people on the basis of confessions they knew were coerced.
And now the government wants to make the system by which we willingly give away our right to know what happens in interrogation rooms permanent. Three ministers – Benny Begin, Dan Meridor and Michael Eitan, all old-school Likudniks – appealed against the decisions. Openly, they say that the decision will "harm israel’s image" – we are, after all, living in a Hasbara-crazed country – but, quietly, they warn this decision will lead to torture.
So bear this in mind: the Israeli prime minister, the minister of justice and the minister of security (not "defense"), have absolutely no problem with that.