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Senate report says CIA looked to Israel for torture rulings

US spy agency cited High Court decision in 1999 that found certain techniques were defensible in cases of imminent attack

Lazar Berman is The Times of Israel's diplomatic reporter

Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)
Illustrative: The High Court of Justice in session. (Miriam Alster/Flash90)

The Central Intelligence Agency looked to Israeli legal rulings in order to justify “torture” against detainees, according to a Senate Intelligence Committee report released Tuesday.

In the wake of the September 11, 2001, terrorist attacks that killed almost 3,000 people, the CIA began to examine possible legal defenses for coercive interrogation methods. Despite prior findings that such techniques were ineffective and “result in false answers,” the November 2001 memorandum “Hostile interrogations: Legal Considerations for CIA officers,” cited the “Israeli example” as a potential basis for arguing that “torture was necessary to prevent imminent, significant physical harm to persons, when there is no other available means to prevent the harm.”

In 1999, the Israeli High Court of Justice ruled that Shin Bet interrogators could not use physical means that were not “reasonable and fair” and that violated the detainee’s human dignity. Still, it allowed certain techniques — such as sleep deprivation — if they were the by-product of the interrogation and not means in and of themselves.

Most significantly, the court ruled that interrogators who exceeded their limits could potentially avoid criminal prosecution by invoking the “necessity defense,” a common-law principle that allows one to break the law in situations of overwhelming urgency, such as an impending mass-casualty terror attack.

The ruling overturned the findings of the 1987 Landau Commission, which recommended that Shin Bet interrogators be allowed to use, under close supervision, “a moderate measure of physical pressure” in cases when non-violent psychological pressure does not work on detainees with knowledge of impending attacks.

In 2005, in the face of increasing Congressional pressure over interrogation methods, a CIA attorney thinking through possible justifications as he worked in the Director of National Intelligence office invoked the Israeli High Court ruling on the “necessity defense” for “ticking bomb” scenarios.

Two years later, a CIA memorandum that concluded enhanced techniques were “clearly authorized and justified by legislative authority” also included an analysis of the Israeli court case, according to the Senate report.

A sailor stands watch over a cell block in Guantanamo Bay's detention facility while detainees look through magazines and books, on March 30, 2010. (illustrative photo: Joshua Nistas/US Navy/Department of Defense)
A sailor stands watch over a cell block in Guantanamo Bay’s detention facility while detainees look through magazines and books, on March 30, 2010. (illustrative photo: Joshua Nistas/US Navy/Department of Defense)

The CIA also looked to Israeli precedent as its lawyers argued for the importance of overt legal and legislative cover for interrogation methods. “The CIA attorney described the ‘striking’ similarities between the public debate surrounding the McCain amendment and the situation in Israel in 1999, in which the Israeli Supreme Court had ‘ruled that several… techniques were possibly permissible, but require some form of legislative sanction,’ and that the Israeli government ‘ultimately got limited legislative authority for a few specific techniques,'” said the report.

The report also revealed that the CIA claimed that information gleaned from detainees “provided a wealth of information about Al-Qa’ida plots,” including 9/11 mastermind Khalid Sheikh Muhammad, who revealed a “terrorist plot in Saudi Arabia against Israel.”

It is unclear to what target this refers, as Israel and Saudi Arabia do not have official relations.

Senate investigators delivered the indictment of CIA practices on Tuesday, accusing the spy agency of inflicting pain and suffering on prisoners beyond legal limits and deceiving the nation with stories of life-saving interrogations unsubstantiated by its own records.

Treatment in secret prisons a decade ago was worse than the government told Congress or the public, said the report from the Senate Intelligence Committee, the first official public accounting after years of debate about the CIA’s brutal handling of prisoners.

Former CIA officials disputed the report’s findings, as did Senate Republicans, whose written dissent accused Democrats of inaccuracies, sloppy analysis and cherry-picking evidence to reach a predetermined conclusion. CIA officials prepared their own response acknowledging serious mistakes, but saying they gained vital intelligence that still guides counter-terrorism efforts.

“The program led to the capture of al-Qaeda leaders and took them off the battlefield,” said George Tenet, CIA director when the September 11, 2001, attacks occurred. He said it saved “thousands of American lives.”

Five hundred pages were released, representing the executive summary and conclusions of a still-classified 6,700-page full investigation.

President Barack Obama declared the past practices to be “contrary to our values” and pledged, “I will continue to use my authority as president to make sure we never resort to those methods again.”

Sen. Dianne Feinstein, D-Calif., the committee chairman, branded the findings a stain on the nation’s history.

“Under any common meaning of the term, CIA detainees were tortured,” she declared, commanding the Senate floor for an extended accounting of the harsh techniques identified in the report.

Tactics included weeks of sleep deprivation, slapping and slamming of detainees against walls, confining them to small boxes, keeping them isolated for prolonged periods and threatening them with death. Three detainees faced the simulated drowning technique known as waterboarding. Many developed psychological problems.

But the “enhanced interrogation techniques” did not produce the results that really mattered, the report asserts in its most controversial conclusion. It cites CIA cables, emails and interview transcripts to rebut the central justification for torture — that it thwarted terror plots and saved American lives.

President George W. Bush approved the program through a covert finding in 2002, but he was not briefed by the CIA about the details until 2006. At that time Bush expressed discomfort with the “image of a detainee, chained to the ceiling, clothed in a diaper and forced to go to the bathroom on himself.” Bush said in his 2010 memoirs that he discussed the program with CIA Director George Tenet, but Tenet told the CIA inspector general that never happened.

After al-Qaeda operative Abu Zubaydah was arrested in Pakistan, the CIA received permission to use waterboarding, sleep deprivation, close confinement and other techniques. Agency officials added unauthorized methods into the mix, the report says.

At least five men in CIA detention received “rectal rehydration,” a form of feeding through the rectum. The report found no medical necessity for the treatment.

Others received “ice baths” and death threats. At least three in captivity were told their families would suffer, with CIA officers threatening to harm their children, sexually abuse the mother of one man, and cut the throat of another man’s mother.

The report claims to debunk the CIA’s assertion its practices led to Osama bin Laden’s killing. The agency says its interrogation of detainee Ammar al-Baluchi revealed a known courier was taking messages to and from bin Laden.

The Associated Press contributed to this report.

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