Last November, Sen. John McCain (R-Ariz.), while campaigning to ban the U.S. government from using torture, told the "Today" show: "The Israeli Supreme Court outlawed torture, outlawed cruel and inhumane treatment. And I have talked to Israeli officials, and they say they do very fine without it."
It was a useful point of rhetoric, but the story of Israel and torture is more complex; Israel is less the example of humane progressiveness that McCain would have it.
Actually, the Shin Bet intelligence agency has reported that during the first three years after the 1999 Israeli ban on torture, it used "exceptional interrogation methods" on 90 Palestinian prisoners.
"I understand 'exceptional interrogation methods' to mean torture," said Jessica Montell, executive director of B'Tselem, the Israeli human rights organization that has monitored human rights abuses by the Israelis, including torture, for some 20 years. "We know of a few more cases in the years since the Shin Bet's 2002 report."
It's possible that many, if not all, of these 90-plus cases of "exceptional interrogation methods" met the criteria for the classic "ticking bomb" defense in the use of torture: Information is needed urgently from a suspect to prevent innocent people from being killed. However, Montell noted that the attorney general failed to prosecute Shin Bet agents, so the judicial system never ruled on whether the ticking bomb defense applied.
However even for Montell, a human rights monitor, "it's clear that we're talking about a qualitative and quantitative improvement since the high court ruling."
That's for sure.
Most of these exceptional cases took place during the Al Aqsa intifada, which began in September 2000 and which, while having subsided, hasn't ended yet. During its first three years, it marked one of the most savage terror campaigns any country has ever endured. Approximately 1,000 Israelis were killed and several thousand injured.
The Israeli army, backed by Shin Bet intelligence, arrested tens of thousands of Palestinians. Out of all of them, 90-plus prisoners may have been tortured and likely in urgent circumstances.
By comparison, during the first intifada from 1987 to 1993, Montell estimated that "tens of thousands" of Palestinian prisoners were tortured in ways that would be illegal in Israel today. Her estimate is based on B'Tselem's finding that about 85 percent of Palestinian prisoners in that period were tortured. (In those days, Palestinians were arrested and jailed for long periods for offenses as minor as displaying PLO flags or passing out PLO literature.)
Besides the old standby of beatings, the methods of torture included violently shaking prisoners; shackling them in painful, contorted positions for long periods, wearing foul-smelling hoods that made it difficult to breathe; preventing them from sleeping for two or more days at a time; and threatening sexual assault or death on prisoners and their families.
Over the years, about 10 Palestinian prisoners died in custody as a result of torture, the exact number is uncertain, said Montell, whose organization is probably the best known investigator of human rights abuses against Palestinians.
While Israeli security officials and right-wingers have castigated B'Tselem as being unfair and anti-Israel, its case against Israeli torture has been backed up by testimony from many hundreds of victims and was ultimately supported by the Israeli Supreme Court.
The outlawing of indiscriminate torture marks probably the greatest human rights victory in Israeli history, won by the country's legal community over the vaunted security establishment. That members of the security establishment say today that they "do very fine without" torture, as McCain noted, is agonizing.
It means tens of thousands of Palestinians, by B'Tselem's estimate, were tortured for nothing, causing unfathomable damage to the victims and to the atmosphere surrounding Palestinian-Israeli relations. It also shines a harsh light on torture's remaining proponents today.
However, even during three decades when the Shin Bet was routinely using torture to wring out confessions, true or false, from Palestinian prisoners, Israeli practices were still a long way from the big leagues of torture. Israel didn't go in for anything remotely close to the inconceivable mass torture/murder still going on in large parts of Asia and Africa, both by governments and rebel forces.
Israeli agents didn't turn blow torches on Palestinians' faces or throw them out of airplanes as did Latin American military dictatorships to leftists by the thousands. Neither did it shoot to death prisoners after torturing them to their limits for information, using such methods as electrodes tied to genitals, as France did wholesale during the 1954-62 war in Algeria. Nor did the Shin Bet use the monstrous tactics of, for instance, the former Soviet KGB, the East German Stasi or the various "special" forces that burned, raped and generally savaged their way through the Balkan wars of the 1990s.
Israel didn't do that sort of thing, even to known terrorists who'd killed dozens of innocents. There were no mass graves in the West Bank or Gaza, like the Russians are still leaving in Chechnya.
However, the Shin Bet's treatment of Palestinian prisoners, and the way agents lied about it in court, was bad enough. So when agents' practice of torture came to light, which happened in 1984, it was probably inevitable that the Israeli judicial system would rule it out -- or nearly out -- of existence.
The breakthrough came in the "Bus 300" affair that year. Four Palestinian terrorists hijacked an Israeli bus, commandeering it to Gaza, where they held the passengers hostage, demanding the release of Palestinian prisoners.
Israeli security forces raided the bus, killing two terrorists and taking the two others prisoner. That night, Israeli officials announced that all four suspects had been killed in the raid. However, the Hadashot daily newspaper bypassed the Israeli censor and published a photo the next morning of two plainclothes Israeli security officials walking one of the terrorists away from the bus.
For the next three years, official investigations and inquiries followed one after another; the head of the Shin Bet, Avraham Shalom, was forced to resign. Also, a young Palestinian accused of membership in a terrorist organization died in his interrogation cell -- from a heart attack, according to the Shin Bet. But his family said his corpse showed signs that he had been brutalized.
In 1987, an inquiry commission headed by retired Supreme Court Justice Moshe Landau gave the Shin Bet a reprimand of an unprecedented frankness and severity. The commission found that agents had been torturing confessions out of Palestinians and lying about it in court -- which had been routinely convicting prisoners on the basis of those confessions and Shin Bet testimony -- since at least 1971. This institutionalized dishonesty and brutality "was passed from one generation [of Shin Bet agents] to the next."
Noting that there were no legal guidelines for how far an Israeli interrogator could go with a suspect, the Landau commission codified a long list of allowable methods of what it called "moderate physical pressure." These served as the Shin Bet's guidelines for the next 12 years, even though many legal critics called these stipulations "legalized torture."
"Things didn't get better after Landau," Montell said. "They just got a lot more regulated. Interrogators were now acting according to orders, instead of their own private initiative.
"The interrogations became highly standardized," she continued. "They had about five or six different methods of physical force to cause prisoners suffering, such as shaking, shackling, hooding and sleep denial. We know because the interrogators had to fill out forms detailing the methods they used."
But this record keeping was at least a more honest system than, say, the U.S. decision to house prisoners at Guantanamo, which is outside U.S. territory, so the government can claim that U.S. legal protections therefore don't apply. Then there are the alleged secret U.S. prisons abroad reported on recently in the U.S. press -- not to mention the U.S. practice of rendition: secretly handing over a suspect to a country that places no limits on torture and letting the foreign torturers do the Americans' dirty work.
When Israel brought its torture practices above ground and started keeping track, these records set the stage for reform. They provided a database that helped the Israeli courts take the next step in significantly restricting torture.
Since the Supreme Court's ruling in 1999, many Israeli troops still treat Palestinians brutally and in a humiliating fashion -- not only Palestinians and human rights activists have attested to this, but so have Israeli soldiers. The West Bank is still wild. But the interrogation rooms of the Shin Bet, at least, are not nearly as dark as they used to be.
While torture is still likely used on occasion, these instances are not hidden by the Shin Bet, which indicates, we can hope, that these were instances when torture was used to prevent the imminent deaths of innocents -- instances when torture, as horrifying as this may sound, was actually the lesser of two evils.
It took decades for Israel to clean up its interrogation methods to this degree -- decades in which the absence of controls and the blanket justification for ruthless tactics in the war against terror led to a policy of indiscriminate torture of imprisoned suspects.
If not for Israeli human rights organizations and the Israeli Supreme Court, it would still be going on.