Answer to the judge: The ticking bomb and the license to torture

By Stephen Langfur, Challenge,
30 November 1996

Does the State have a right to torture? Suppose a bomb has been placed in a crowded building, and the State has custody of one who knows where it is. The bomb is set to go off in two hours. It is impossible to get the people out. What do I do in such a case?

Judge Misha'el Heshin of Israel's Supreme Court put this question to Attorney Andre Rosenthal on November 14. Two days earlier the court had issued a temporary order, restraining the General Security Services (GSS) from torturing Rosenthal's client, Muhammad Hamdan. Now the GSS had called the court together in a hasty night session, demanding that it lift the restraint. In answer to Judge Heshin, Rosenthal said that there is no such thing as a clear-cut case, for no one can ever know in advance and for sure that a particular person has knowledge of a ticking bomb. Therefore, he said, we must never legitimize torture.

Judge Heshin retorted: That's the most immoral position I've heard in all my days! There is something chilling in the prospect of a group of judges sitting to decide whether to torture someone. (See box.) Also chilling, however, is the low level of the exchange quoted above. The question before these people is momentous, and it has been around a long time. The ticking bomb scenario is the ultimate argument for justifying torture. Can it be answered?

Attorney Rosenthal's answer did not persuade the judge. The latter does not require absolute certainty that so-and-so knows where the bomb is. He only needs reasonable suspicion. After all, many lives are at stake. There is no such thing as a clear-cut case, said the lawyer. But how clear-cut does it have to be? In the present instance, the GSS was concerned that the Islamic Jihad would try to avenge Israel's murder of its leader, Fathi Shkaki, on the first anniversary of his death. In October the GSS rounded up Jihad activists. Let us suppose that its interrogators tortured them and got information pointing to Muhammad Hamdan as a key figure in an imminent attack. The GSS would then have grounds to suspect that by torturing Hamdan himself, it would find out what it needs to know to foil the attempt. This is not the ticking bomb in the crowded building, but the idea is the same: various sources point to this man as holding knowledge which, once extracted, can save many lives.

Notice, however, how easily we have slipped over from the example of the ticking bomb—limited, specific, and time-bound—to a broader kind of situation. We shall encounter further examples of such slippage when we look more closely at the ticking bomb argument. Before we take it up, however, it will be useful to have in mind the particulars of Muhammad Hamdan's case, to the extent that we know them.

He is 33 years old, a student at Birzeit University. He was among the 400 Hamas and Jihad activists whom the Rabin government deported to Lebanon in 1992. According to the GSS, he received training there in terrorist techniques. After a year he was allowed to return with the others to his home in the West Bank, although Israel promptly jailed him for two months (and again for a month in 1994). In March of this year it was the turn of the Palestinian Authority, which put him away until August 27. He was scarcely out when, on October 6, Israel shipped him off to the Megiddo prison under administrative detention. This is a special arrangement, derived from the emergency regulations of the British Mandate, enabling the State to incarcerate people who are not accused of any crime, on the grounds that they might make trouble. After only two weeks, however, on October 24, Hamdan was transferred to the notorious Russian Compound in the heart of West Jerusalem's shopping district. At two a.m. six GSS men began to interrogate him. They tied him into an awkward position, tightening the cuffs on his wrists and ankles, and proceeded with the technique known as shaking. Here an interrogator grabs the victim's shirt collar and whips his head back and forth violently over a prolonged period. This method killed another client of Rosenthal's, Abed Harizath, a year and a half ago.

Later that morning the State of Israel was tied up in traffic jams. The police had placed roadblocks everywhere, looking for terrorists. The jams continued in the following days. It is now claimed (Ha'aretz , Nov. 15) that the information which led to these massive tie-ups came from none other than Muhammad Hamdan. He too was tied up -- in contortions, with a stinking sack over his head, deprived of sleep, for eleven days. As far as we know, no plot was foiled. No terrorist ring was caught. No bomb went off. The roadblocks were eased, and on November 10 the long-standing closure was suddenly relaxed, and thousands of Palestinians from the West Bank and Gaza streamed into Israel. Muhammad Hamdan remained tied-up, without sleep, the stinking sack on his head.

Through a released prisoner he managed to get a message out to his family, asking them to find a lawyer. They went to Rosenthal, who got the restraining order mentioned above. But two days later, in the hastily-called night-session of November 14, the GSS lawyers appealed to the High Court. They claimed to have a well-grounded suspicion, based on checked information, that Hamdan possessed vital knowledge which, if extracted immediately, would help prevent major terrorist strikes. Rosenthal was not made privy to the checked information. Instead he had the exchange with Justice Heshin quoted above.

The court decided to lift the restraint, thus giving its approval to the continuing torture of Muhammad Hamdan. Rosenthal went home, picturing his client once again being tied-up, sacked, and shaken. In fact the GSS waited till the next morning. The bomb was allowed to tick for ten more hours. So much for immediate danger. They had gotten the judges out of bed, but they let the torturers sleep. (Kol Ha'ir, Nov. 22, 1996.)

Please note: By the time of that night session, five weeks had passed since Hamdan's arrest, and three since the GSS had started torturing him. If there was a ticking bomb, you'd think it would have gone off already! If Hamdan was involved—during his brief time between jails—in planning an attack, then the operatives would most probably have altered the action after learning of his arrest. That is at least a reasonable assumption. It was unreasonable to assume, therefore, that he would still possess the knowledge which, according to the ticking bomb argument, justifies torture.

There was no basis, then, for the GSS claim during the night court session on Nov. 14. More than a month after his arrest, any information which Hamdan might have had about the how, where or when of an attack had become irrelevant. He might, of course, be made to reveal names. But that wouldn't have had the force, in court, of the ticking bomb. It would have been much harder for Judge Heshin to justify torturing Hamdan in order to get him to reveal the names of other people to torture, with the idea that maybe the GSS might eventually discover something.

The GSS had new information, its lawyers said that night, obtained from Hamdan the last time they'd questioned him -- two days earlier. But if so, why hadn't they said this two days earlier? It is much more likely that the GSS was merely deceiving the judges. The motive for such a lie is apparent: The GSS could not allow itself to be subject to the High Court in its basic working methods. It wanted a clear precedent. In the past, when such a question arose, the service had always declared that the investigation was over anyway, so the discussion was superfluous. But this time, according to Moshe Reinfeld, the GSS came unexpectedly with a request, the significance of which was the granting of a permit to continue using physical means of interrogation, such as `shaking' and sleep-deprivation. (Ha'aretz, Nov. 15, 1996).

The GSS wanted the precedent. To scare the judges into compliance was a simple matter. For indeed, what if the judges refused to let them torture—and then, heaven forbid, an atrocity occurred? Scenes like the ghastly ones of February and March would again play out before the Israeli public. Accusing fingers would single out the judges: They could have prevented this! A judge is no expert on Security, after all. One must defer to the proper authorities.

The State's security apparatus systematically lies to the court. This, it will be remembered, was the chief finding of the Landau Commission in 1987. There is no reason to think that the practice has changed.

With these particulars in mind, let us develop an answer to Justice Heshin. (1) First comes a point made by Gideon Levi (Ha'aretz, Nov. 17). Let us assume there is a ticking bomb—and someone in custody who knows the plan. Where is the border between what is permitted and what is not? Suppose the customary methods do not work: sacking, tying into painful positions, sleep-deprivation, shaking, enclosure in the cupboard where one cannot stretch out, blasting with loud music. (Hundreds of Palestinians attest to these methods, so we may assume that they are permitted in the secret portion of the Landau Commission's report.) What if the nut doesn't crack? All those people are going to die. Is it permitted to beat him? And if that doesn't help—electricity? Rip out his fingernails? Crush his testicles? If we accept the ticking bomb scenario as an argument justifying torture, then we can find no principle to limit the extent and degree of the torture it justifies.

(2) It is very unlikely that torture can succeed in such an instance. For it is a cardinal assumption of this scenario that the prisoner is one of the two or three people who know where the bomb is and when it will go off. He knows, therefore, exactly how long he has to hold out. Being dedicated, he will mislead his interrogators until it's too late—or until his colleagues have changed the plan. On the one hand, then, the ticking bomb argument can be used to justify the severest torture, but on the other hand, precisely in such a case torture is useless. Why then does this scenario keep coming up? In fact it has a very important function in Israeli society. Israel wants to present itself as an enlightened democracy on the Western model, but it has locked itself into the role of Occupier, with the result that toward part of the population under its control it must behave like a police-state. The ticking bomb scenario offers an exceptional, border-line situation, in which everyone can understand that even an enlightened democracy might have to use torture. What Israel does, therefore, is to extend the fantasy of the bomb in the crowded building to include analogous situations—even remotely analogous. Israel can then allow its security apparatus to approach interrogations as if they were all ticking bombs. Thus it can keep wearing the mask of an enlightened democracy, while functioning like a police-state. The ticking bomb scenario, for which torture is useless, koshers other situations where torture can be useful.

(3) A similar point was made by the Public Committee Against Torture in Israel. Consider again the GSS claim in the Hamdan case: it said he had vital knowledge which, if extracted immediately, would help prevent major terrorist strikes. Such a claim can be made for any interrogation. By letting the GSS continue torturing Hamdan, the High Court was tacitly agreeing to extend the ticking bomb scenario to all cases where there was suspicion that a piece of information might lead, at some stage, to the discovery of a plan to place a bomb sometime somewhere. The concepts are slippery. The bomb in the crowded building slips over to include any threatening situation. The person who knows when the bomb will go off slips over to include any persons who could possibly contribute any information. In fact hundreds if not thousands of Palestinians have been tortured in the last few years only to be released without charges. Some have been maimed for life. (Gideon Levi in Ha'aretz , Nov. 17.) The very concept of torture is slippery: the Landau Commission euphemized it into moderate physical pressure. At the basis of all this slippage is the most slippery concept of all: that of human being. This concept, if not diligently protected, easily slips over into concepts like animals, cockroaches, vermin, and the like. There are fewer qualms of conscience about torturing a cockroach.

(4) Because the concepts are so slippery, once the High Court has ratified torture in any form and for any reason, there is no principle—no obstacle—to keep Israel from slipping over into an outright police-state. That is what this country already is towards part of the population it rules. Subject to the lies of the GSS, the court is reduced in function to a kind of ornament, preserving the veneer of democracy. It is no wonder that another judge at that late night session, Aharon Barak, told Attorney Rosenthal to keep bringing cases. Here is a grotesque parody of democratic procedure in a police-state reality. The High Court is supposed to be the ultimate resort of the individual to protect him from the excesses of the governing power. It has become, instead, the mask of legitimacy behind which the governing power relentlessly grinds his bones.