To Torture or Not? That Is the Real Question

The detainees who disclosed bin Laden’s location underwent waterboarding. Their heads were covered with a cloth, then pouring water over their heads made them feel like they were suffocating. Should we use torture?

“They tortured me, deprived me of sleep, humiliated me and insulted me — and in the end, nothing has come out of it for anyone, and everybody lost. I have lost seven years of my life, the country lost some of its prestige,” said Izzat Nafsu, a former officer in the liaison unit to Lebanon who confessed in 1981 to espionage and assisting the enemy, and was then sentenced in martial court to 18 years of imprisonment. Six years after that, he appealed to the Supreme Court on the claim that the confession was extracted from him by improper means. Finally, in the plea bargain in the military tribunal, he was charged with a minor violation and released from prison.

“My case proves that torture does not achieve a thing,” he said. “In an interrogation where torture is used, the detainee sells to the investigator tall tales and lies for the sake of stopping the torture. You reach the point that you can’t take it anymore, and you are ready to say anything, like it happened with me. Everybody can be broken by torture; the question is what it is that’s gained by this. True, I did not experience electrical shocks, and did not go through American waterboarding, but I was deprived of sleep, undressed, forced to take cold showers, trampled upon, spit upon, humiliated and insulted. A better result can be achieved by sophisticated and less harmful investigation techniques.”

While in Israel the issue of using torture seems to be settled, there is a vehement polemic going on in the United States in the last week, between the advocates of torture-based interrogation tactics and those revoking them.

According to the WikiLeaks documents, two detainees tortured in Guantanamo, the ill-famed United States detention facility, led to the elimination of bin Laden. Khalid Sheikh Mohammed, al-Qaida boss, unearthed to his interrogators the name of bin Laden’s “baldar,” or courier, Sheikh Abu Ahmad [al-Kuwaiti]. Another detainee, Faraj al-Libi, confirmed the name. Both detainees were tortured in Guantanamo by means of the technique called waterboarding, where the detainee’s head is covered with a piece of cloth, while water poured on him causes him to suffer a long-lasting feeling of suffocation.

Senior American administration officials argued that the tough interrogation methods have brought about capturing bin Laden. “…the debate about whether we would have gotten the same information through other approaches I think is always gonna be an open question,” mused CIA head Leon Panetta, in an interview with the NBC network.

Michael Hayden, former head of the CIA during the Bush administration, reasoned that torture was essential. “So the point I would make to folks who say, ‘I don't want you doing this, and it doesn't work anyway,’ I would point out, ‘Whoa. Stop. The front half of that sentence, you can say; that’s yours, you own that, ‘I don't want you doing it.’ The back half of that sentence is not yours. That’s mine. And the fact is it did work.”

“Information provided by [Khalid Sheikh Mohammed] and Abu Faraj al-Libbi about bin Laden’s courier was the lead information that eventually led to the location of [bin Laden’s] compound and the operation that led to his death,” said Joze Rodriguez, the former chief of the CIA’s Counterterrorism Center, to Time magazine. Of particular interest was an interview with Allen West, a Republican Congressman from Florida. He declared that he favors “any means that ensures that the American people are protected.”

As a U.S. Army Colonel, West fired a gun next to the head of a captured Iraqi in an attempt to extract information from him about a planned ambush. The arrested, Yahya Hamoudi, delivered false information. West admitted he was wrong, was fined $5,000, and quit the army.

Between the Truth and the Phony

There are also other voices heard in the United States. Sen. Dianne Feinstein, D-California, and a chair of the Senate Intelligence Committee, told Time magazine that there is no proof that the killing of bin Laden came in the wake of the torture of detainees by waterboarding.

Andrea Prasow, formerly a defense attorney for several Guantanamo detainees, wrote for The Daily Beast website that experienced interrogators repeatedly report that torture produces less truthful information. “[E]ven if the victim of torture does provide some accurate information, there is no way to sift the truth from lies produced as the detainee merely tries to get interrogators to stop,” she asserts. For example, she brings up the captive al-Libi who was bled dry under torture in Guantanamo, and claimed a link to Iraq and weapons of mass destruction. All remember how sadly that played out.

“Many [others] have provided and continue to provide information to U.S. ... without the use of coercive interrogation techniques,” commented Prasow. “[W]hen Umar Farouk Abdulmutallab was arrested for the attempted Christmas bombing of a U.S. airliner bound for Detroit, he provided intelligence to the FBI immediately upon his apprehension, despite being interrogated in a purportedly lawful manner.… We will never know how much information the U.S. lost because it failed to use time-tested, effective, and humane methods of interrogation. We will never know how many years earlier bin Laden could have been captured and how many lives spared if, instead of whisking them off to a prison outside the law, the U.S. had instead charged Mohammed and al Libi in federal courts [and treated them properly and in accordance with due process.]”

In her article, Prasow mentions the famous testimony of the ex-FBI top interrogator Ali Soufan before the Senate Judiciary Committee. Soufan participated in major security investigations, such as of the East Africa bombings, the twin towers terrorist attacks and interrogation of Abu Zubaydah suspected of al-Qaida affiliation. Two years ago, Soufan stated at the Senate [Torture Hearing] that the so-called enhanced interrogation techniques, from the operational perspective, “are ineffective, slow, and unreliable, and as a result harmful to our efforts to defeat al-Qaida… I wish to do my part to ensure that we never again use these… instead of the tried, tested, and successful ones — the ones that are also in sync with our values and moral character. Only by doing this will we defeat the terrorists [as effectively and quickly as possible,]” he insisted. In all his lectures as well as in the Senate, he kept reiterating the fact that Abu Zubaydah gave important actionable intelligence only when the harsher techniques were halted.

Professor Gideon Freudenthal, from Tel Aviv University, expert in philosophy of science and chairperson of the Public Committee Against Torture in Israel, agrees with Soufan. “The relevant information from the two essential detainees in Guantanamo to the capture of bin Laden was earned only when their torturing ceased. There is no indication that better intelligence is procured through torture. Often, it is precisely under interrogation by torture that the interrogated gives up bogus information. The fact is that the Shin Bet successes were not foiled in the aftermath of the Landau Commission restrictions.”

Please Don’t Shake

In Israel, the public discourse on torture began long before the Americans knew where Guantanamo is. In 1987, after [Izzat] Nafsu was freed from the jail, the Landau Commission was founded to examine the Shin Bet interrogation tactics. It was chaired by Supreme Court Justice Moshe Landau, who died last week. His colleagues on the commission were Justice Yaakov Maltz and former Mossad chief Yitzhak Hofi. In November of that year, the commission’s conclusions were published, which gave Shin Bet license to use non-violent psychological pressure, psychological ploys, verbal trickery, and [“when these do not attain their purpose”] — to also exert a “moderate measure of physical pressure.” In the classified appendix, the commission provided guidelines for the Shin Bet in a series of rules regarding permissible and prohibited practices during the interrogations.

“There are occasions when another way just does not yield information,” said commission member Yitzhak Hofi to Maariv. Many others in the Israeli government elite agree with Hofi. For instance, Ehud Barak, who in his term as prime minister said that in the case of a ticking bomb, he is supportive of employing physical duress. Ami Ayalon, at the post of Shin Bet head, signed in 1998 an affidavit submitted to the Supreme Court, prior to the hearing on the petitions of the interrogated, where he determined that violent shaking of the detainees, as well as the shabach position — being shackled to a chair and with his head wrapped in a hood — are “absolutely essential in the struggle to eradicate terrorism,” which “we cannot forgo without significantly decreasing Shin Bet's ability to thwart terrorist attacks.”

Following the relative restraints imposed by the judges, Reuven Rivlin* submitted at that time a law proposal allowing Shin Bet to continue using physical coercion during interrogation. “Justice Landau helped me with formulating the bill,” Rivlin said. “The war on terror shouldn’t be conventional. According to my proposal, the chief of police, defense minister or other high-ranking officials will decide who the ticking bomb is, so in deriving information from him, we’ll be compelled to make a use of unconventional means.”

In 1999, nine Supreme Court justices, with the then-president of the court Aaron Barak in the lead, invalidated a number of torture practices, such as shaking, the shabach position, and turning on painfully loud music for the detainees, in attempts to break their spirit. In a long verdict, Justice Barak ruled, “(Shin Bet) investigators are not authorized to employ any physical means, absent unequivocal authorization from the Legislator pertaining to the use of such methods and conforming to the requirements of the Basic Law: Human Dignity and Liberty.”

“This is the law relevant to the case at bar. An individual's liberty is not to be the object of an interrogation… There are to be no infringements on this liberty absent statutory provisions which successfully pass constitutional muster,” noted Justice Itzhak Zamir, one of the nine judges of the Shin Bet Practices [torture] trial.

A Toolbox of Torture

In 2002, the Shin Bet Law was passed, which does not explicitly sanction the use of moderate physical pressure, but does not reveal either the operating methods prescribed by the Landau Commission in the secret attachment. Avi Dichter, former Shin Bet chief, and as of today, a member of the Knesset subcommittee on secret services, divulged that he terms enhanced interrogations as “interrogations in the shadow of the defense of necessity and not as interrogations under torture. Investigations of the ticking bombs are done in a very professional matter, which has been legally regulated here [in Israel] for 10 years already. The option to resort to exceptional measures is very limited and is subject to transparency and supervision, with both a special ministerial committee and the Israeli Attorney General responsible for the resort to this option. There is no doubt that there are cases where it is clear that if the interrogations were not based on a toolbox of investigatory techniques used out of the defense of the necessary, we would not be able to crack the puzzle.”

What are you saying about the argument that the victim of torture does not provide genuine information?
“The story is way more complicated than the dilettante theory of someone who hasn’t seen investigations in reality. There are many ways to ensure that the detainee is telling the truth.”

An FBI interrogator stated before the Senate that truth can be acquired by more gentle means.
“More gentle for whom? In order to save lives, measures in defense of the necessary are needed. We’ve got a very clear toolbox, accepted by everyone.”

Not everyone — there are those who opine that it’s possible to explore the truth differently.
“Thousands of Israelis have been saved due to the fact that people were interrogated under the defense of necessity.”

A lawyer and former legal adviser to Shin Bet bursts into laughter when he hears about the American misgivings. “Are you sure I’m not in a hoax show?” he asked. “The facts are simple and obvious, and there’s nothing to disagree with them. People will be ready to talk when they come under bigger duress. Factually, can’t you imagine that a person would be more talkative when under pressure? This fact is not debatable. Terrorists are usually ideological types, and they are not ready to share stuff with others unless subjected to pressure. Ultimately, this is about a question which is more ethical than operational: how much is society willing to pay in return for the output gained by interrogation under torture?”


*Translator’s Note: Israeli lawyer, politician, currently speaker of the Knesset; member of the Likud political party.