Security Prisoner
Security Detainee
Administrative Detainee
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White Lies: HCJ 5100/94 Public Committee Against Torture in Israel et al. v. Government of Israel et al. (Judgment of September 6, 1999)
Court Watch | 5100/94 | 1.3.2011 | Adv. Yossi Wolfson
Criticism
Lawyers who appear before the courts can tell of many a case in which the state attorney’s office misled the justices. Sometimes, the court itself protests when it discovers the state had misled it, but the same scenario repeats itself over and over again.

When a petitioner fails to disclose full information to the court, his petition might be rejected for “bad faith”. But when the state lies, it suffers no punishment other than polite reprimands

Examples of this can be found throughout the years. In 1983, the High Court of Justice (HCJ) reviewed land expropriations for the purpose of building Route 443. The state argued that the road was being built for the benefit of the local population. Justice Aharon Barak, later the Supreme Court President, remembered that he had heard differently only a short time before. He pulled out another case reviewed by the court which also concerned road building, leafed through it and found different arguments for the need for the roads. According to this argument (which, with all due respect does sound more authentic), the roads were designed to facilitate deployment of forces from inside the Green Line eastward. “This approach is baffling”, writes Justice Barak, “The military government is one, whether it stands before this court in the aforementioned HCJ 202/81, or whether it stands in the case at bar. How is it possible that what is said to one bench of this court is not said to us? I do wonder”.[1]

In 2005, in the matter of the separation wall in the Azzun area, the court wrote:

[T]he petition before us points to an occurrence that cannot be tolerated, whereby the information provided to the court did not reflect the entirety of considerations taken into account by the decision makers. Consequently, a petition was dismissed, which even the respondent now agrees should have been accepted. We have received an explanation as to the special circumstances under which the security officials operated, and which led to the failure. We hope that this does not recur.[2]

And in 2010, in a case in which the military prevented a person’s travel to Jordan after he had been told that there was no impediment to him traveling, the court complained, inter alia, that: “Unfortunately, the explanation given in the State Attorney’s notice with respect to the change in the Respondents’ position on the travel preclusion was also inaccurate”.[3]

In other words: the State Attorney’s Office had misled the court.

The phenomenon of misleading the court can prosper only thanks to the blind eye the court turns to bold lies presented to it and its tendency to accept the state’s version without batting an eyelid. When a petitioner fails to disclose full information to the court, his petition might be rejected for “bad faith”. But when the state lies, it suffers no punishment other than polite reprimands. The justices may think that such reprimands shake the foundations, but reality indicates otherwise.

Sometimes, even when the court does not believe the state, it still makes no real effort to censure its conduct before it. A clear example of this is found in the HCJ’s famous judgment of 1999 regarding interrogation methods practiced by the Israel Security Agency (ISA) at the time.[4] The state admitted, with respect to some of the methods, that they were used as measures for pressuring interrogees into releasing information in their possession. Thus with respect to the use of shaking and “gambaz” – forcing the interrogee to kneel in a frog crouch for a lengthy period of time. However, with respect to other methods, the state feigned innocence, claiming that these were not measures intended to pressure the interrogees but necessary steps meant to serve other purposes.

A routine ISA interrogation at that time was divided into segments of frontal interrogation (during which shaking and “gambaz” were sometimes used) and long segments referred to as “waiting”. During the waiting, interrogees were tied in a position referred to as the “shabach” position: sitting on a low, forward leaning chair with hands tightly cuffed behind their back – one from one side of the seat and the other from the other – a stifling sack over their head and deafening music played incessantly. The frontal interrogation and “waiting” segments added up to consecutive days of sleep deprivation.

It is clear that the court itself understood it had been presented with false affidavits... Did the court lose its composure? Did the earth shake? Not in the least

The state did not deny these measures (with the exception of the claim that the handcuffs were ordinary handcuffs) but had “convincing” excuses:

The interrogees were tied up only in order to prevent them from attacking their interrogators;
The sack put over interrogees’ heads was meant only to prevent them from making eye contact with other interrogees;
The loud music was meant to prevent them from speaking with other interrogees;
The sleep deprivation was not meant to exhaust the interrogees but was simply the result of the interrogations’ continuing for lengthy periods of time and nothing more.

All these claims were backed by sworn affidavits.

The judgment clearly indicates that the court was not prepared to believe these excuses. The court knew full well that these reasons could not explain the state’s conduct and that the real purpose of these measures was to break the interrogees both physically and mentally.

Of the most painful form of tying, the court writes, inter alia:

The cuffing associated with the “shabach” position … is unlike routine cuffing. The suspect is cuffed with his hands tied behind his back. One hand is placed inside the gap between the chair’s seat and back support, while the other is tied behind him, against the chair’s back support. This is a distorted and unnatural position. The investigators’ safety does not require it.[5]

Of sitting on a low lopsided chair, the court writes:

We accept that seating a man is inherent to the investigation. This is not the case, however, when the chair upon which he is seated is a very low one, tilted forward facing the ground, and when he is seated in this position for long hours.[6]

Of covering the interrogee’s head with a sack, it writes:

They are not necessary to prevent eye contact between the suspect being interrogated and other suspects. Indeed, even if such contact is prevented, what is the purpose of causing the suspect to suffocate? Employing this method is not related to the purpose of preventing the said contact.[7]

And about the loud music:

We are prepared to assume that the authority to investigate an individual may include preventing him from hearing other suspects under investigation or voices and sounds that, if heard by the suspect, risk impeding the interrogation’s success ... In the case at bar, the detainee is placed in the “shabach” position while very loud music is played. Do these methods fall within the scope or the general authority to conduct interrogations? Here too, the answer is in the negative.[8]

With respect to sleep deprivation, the court accepts the state’s general position that sleep deprivation could be an inherent result of the need to interrogate a person for many hours, but stopped short of accepting its version that this was the actual case in ISA interrogations:

The above described situation is different from one in which sleep deprivation shifts from being a “side effect” of the interrogation to an end in itself. If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or “breaking” him, it is not part of the scope of a fair and reasonable investigation.[9]

There can be no doubt that those who signed the affidavits presented by the state regarding the purpose of these measures made false affidavits. The attorneys who repeated these statements to the court must have known they were false. It is clear from the judgment, that the court itself understood it had been presented with false affidavits and that the attorneys who argued on behalf of the state had breached their duty to abstain from presenting the court with arguments they know to be baseless and affidavits they know to be false. Did the court lose its composure? Did the earth shake? Not in the least. The court simply ruled that the measures were unacceptable and that the purposes they purportedly sought to achieve could be achieved in ways that do not cause such aggravated suffering to the interrogees. It did not add even the slightest reprimand with respect to the arguments presented to it.

As far as known, no measures were taken against the individuals who concocted these explanations for the way detainees were kept during the “waiting”. Those who signed the allegedly false affidavits have not been brought to trial, to the best of knowledge. The attorney who passionately presented these fabrications to the court was promoted from one position to the next reaching deputy state attorney and is now a candidate for the position of state attorney itself. He continues to handle sensitive and confidential subjects and cases in which the courts are largely dependent on the credibility of the information presented to them by the state. The information is often presented as a brief summary of confidential materials and the courts and opposing counsel are dependent on the level of its accuracy. In many cases, the materials behind the summary are presented to the court ex parte, without the petitioners being able to review it and point to faults within it. The justices themselves view the materials only briefly, in the courtroom, and mostly rely on the interpretation given to it by the state. In cases such as these, the purity of the judicial proceeding largely depends on the integrity of the state attorney handling the case. Still, even after the torture case, statements made by this attorney has the court’s trust.

The court should have drawn conclusions from the state’s lies in the torture case (and other cases). One lesson that should have been learned is that it is necessary to impose severe sanctions every time the state is caught lying to the court. Another lesson should have been that everything the state says in the court must be heard and read critically and skeptically. Neither lesson has been learned. And the result is that the court finds itself time and again in embarrassing situations due to “mishaps”.


Adv. Yossi Wolfson
The author is a lawyer and an activist for human and other animals’ rights. Formerly on staff at HaMoked: Center for the Defence of the Individual.


[1] 
HCJ 393/82 Jam'iat Iscan Al-Ma’almoun v. IDF Commander in the Judea and Samaria Area (1983), judgment of December 28, 1983, para. 15 (and see commentary on this judgment); HCJ 202/81 Tabib v. Minister of Defense (1981), judgment of December 3, 1981 (in Hebrew).
[2] 
HCJ 2732/05 Head of ‘Azzun City Council v. Government of Israel (2006), judgment of June 15, 2006, para. 7.
[3] 
HCJ 7498/10 Jawarish v. West Bank Military Commander (2010), judgment of November 3, 2010 (in Hebrew).
[4] 
HCJ 5100/94 Public Committee Against Torture in Israel et al. v. Government of Israel et al. (1999), judgment of September 6, 1999.
[5] 
Ibid., para. 26 of the opinion of then-President Barak.
[6] 
Ibid., para. 27.
[7] 
Ibid., para. 28.
[8] 
Ibid., para. 29.
[9] 
Ibid., para. 31.
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