Perpetual war, indefinite detention, and torture: The U.S. and Israel’s shared values
By: Adam Hudson
Published Saturday, August 30, 2014
The United States and Israel have "shared values" but not when it comes to upholding democracy and the rule of law. Their shared values are perpetual war, torture, indefinite detention, and military courts. Guantanamo is a perfect example of this. Both states have been in a state of perpetual war for quite some time with Israel against the Palestinians since its founding in 1948 while the U.S. can trace back its war to its founding in 1776 and the colonization of Native American lands. Today's global war on terror is the latest chapter in that saga. Under perpetual war, the United States and Israel can justify a litany of draconian policies, such as indefinite detention, torture, and extrajudicial killing.
International human rights law prohibits torture and detention without charge or trial. The UN Convention Against Torture strictly forbids torture, even in "exceptional circumstances" like "a state of war or threat of war, internal political instability or any other public emergency." Meanwhile, article 9 of the International Covenant on Civil and Political Rights states, "No one shall be subjected to arbitrary arrest or detention." The rights to a fair trial, due process, and to be free from torture and inhumane treatment are basic human rights that governments are obliged to uphold. Yet, both the United States and Israel practice indefinite detention – also known as "administrative detention" in Israel – and torture.
Administrative detention and torture in Israel
Israel has detained thousands of Palestinians in the occupied territories without charge or trial over the years "for periods ranging from several months to several years," according to Israeli human rights group B'Tselem. B'Tselem figures also report that, "At the end of May 2014, 196 Palestinian administrative detainees were held in facilities run by the Israel Prison Service (IPS)." Israel recently locked up over 250 Palestinians in administrative detention as part of its operation to find the three missing but killed Israeli settlers, putting the current population at around 450.
Three Israeli laws allow and regulate Israel's administrative detention powers – the Administrative Detention Order, the Emergency Powers (Detention) Law, and the Internment of Unlawful Combatants Law.
The Administrative Detention Order, which applies to the West Bank except East Jerusalem, allows military commanders to detain a person for a maximum of six months "for reasons to do with regional security or public security." Commanders can repeatedly add six months of administrative detention, since there is no limit on extensions. The 1979 Emergency Powers Law allows the defense minister to detain a person for up to six months, like the Order, and extend the detention repeatedly six months at a time. It applies to Israeli residents, residents living in Israeli occupied territories, and residents of other countries, such as Lebanon. However, this law grants detainees more protections than the Order does. The 2002 Internment of Unlawful Combatants Law allows for the administrative detention of a civilian who directly or indirectly participates in hostilities against Israel or is a member of a force that does so. Under this law, persons can be detained for an unlimited period of time. This law is used to detain Palestinians living in the Gaza Strip.
While the occupation is illegal and unjust, Israel, as an occupying power, has an international legal responsibility to uphold the welfare of Palestinians living under its control. International humanitarian law permits some internment (or detention without charge or trial) in wartime but only "for imperative reasons of security," according to Article 78 of the Fourth Geneva Convention. Internment [detention] also has to be done on a case-by-case basis rather than implemented widely.
B'Tselem names the numerous ways in which Israel's use of administrative detention violates its international legal responsibilities as an occupying power. One is its "[e]xtremely extensive use" in contravention of international law. "Administrative detention has become routine practice, rather than an exceptional measure," according to B'Tselem. Relatedly, administrative detention is used as "an alternative to criminal proceedings" with authorities using it "as a quick and efficient alternative to criminal trial, primarily when they do not have sufficient evidence to charge the individual, or when they do not want to reveal their evidence." Administrative detention also lacks due process as detainees "are not provided meaningful information on the reasons for their detention and are not given an opportunity to refute the suspicions against them." Additionally, detention periods are repeatedly extended, which leaves Palestinians detained for several months to years without charge or trial. Israel has also used administrative detention against political opponents, including non-violent political activists. Finally, many Palestinian administrative detainees are held inside Israel.
In 1999, Israel's High Court of Justice issued a ruling that prohibited interrogators from using methods of torture as a means of interrogation. Before that ruling, Israeli security forces regularly "tortured thousands of Palestinian detainees each year," according to the Public Committee Against Torture in Israel. In 1987, an Israeli government commission, headed by former Supreme Court President Moshe Landau, issued a report that provided a framework for Israel's torture regime. The Landau Commission recommended Shin Bet interrogators utilize torture methods, namely "psychological pressure" and a "moderate degree of physical pressure," against people suspected of "hostile terrorist activity." It argued that "an effective interrogation is impossible" without some physical force.
Despite the High Court's 1999 ban on torture, rights groups like the Public Committee Against Torture in Israel (PCATI) point out that the Israeli intelligence agency Shin Bet and other law enforcement agencies still commit acts of torture. The PCATI largely relied on testimonies from Palestinian prisoners and forensic evaluations. In response, the Shin Bet denies it commits torture and argues that its interrogation methods are not only lawful but save lives.
Methods of torture and ill treatment of Palestinian prisoners since 1999, according to the PCATI, include "sleep deprivation, binding to a chair in painful positions, beatings, slapping, kicking, threats, verbal abuse and degradation," special methods like "bending the body into painful positions," "forcing the interrogee to crouch in a frog-like position ('kambaz'), choking, shaking and other violent and degrading acts (hair-pulling, spitting, etc.)," and psychological torture. Prisoners, some of whom are children, in solitary confinement often face "sleep deprivation, exposure to extreme heat and cold, permanent exposure to artificial light, detention in sub-standard conditions."
The High Court's ruling has loopholes for Israeli intelligence to circumvent the torture ban. One is the "necessity defense", which, according to PCATI, "under certain circumstances, exempts interrogators who employ illegal interrogation techniques, including physical violence, from criminal responsibility." Another is well-known the "ticking bomb" scenario, where torture is allowed to prevent an imminent threat, such as a bomb about to explode. PCATI argues that the government exploited this loophole to declare more detainees ticking time bombs and overstepping the court's intended scope. PCATI also accused the Shin Bet "taking advantage of the fact that only sleep deprivation for the sake of deprivation is illegal, not sleep deprivation indirectly caused from an extended interrogation," according to the Jerusalem Post.
Guantanamo, U.S. global war on terror
The 2001 Authorization for Use of Military Force, passed shortly after 9/11, authorizes the President of the United States "to use all necessary and appropriate force against those nations, organizations, or persons" who "planned, authorized, committed, or aided" the 9/11 terrorist attacks "or harbored such organizations or persons." This bill gives the United States wide power to wage perpetual war around the world against alleged terrorist groups.
When the Obama administration entered office, it not only kept the AUMF in place, but expanded the bill's scope to continue the global war on terror. The Obama administration interprets the AUMF to include "associated forces" – essentially co-belligerents – of al-Qaeda, even though the bill does not include those words. Last year, the Washington Post reported that Obama administration officials were debating whether the AUMF could be stretched to include "associates of associates" of al-Qaeda, including groups like al-Nusra Front in Syria or Ansar al-Sharia in North Africa. Thus, Obama has shifted the war on terror's goalposts and continued its perpetuity.
The AUMF is the legal linchpin for the United States' global war on terror. It justifies the U.S. detention facility at Guantanamo Bay, indefinite detention, kill-or-capture raids, extraordinary rendition, and drone strikes. But it is not the only legal measure for doing so. Last year, a week before President Obama's national security speech, Obama administration officials told the Senate that even without AUMF, the government could use other laws to continue lethal operations against suspected terrorists, such as self-defense under international law. While both states engage in perpetual war under the language of "fighting terror," Israel's battlefield mostly extends to the West Bank and Gaza Strip, while the United States' is the entire world.
The Guantanamo Bay detention facility was opened in 2002, as the global war on terror began. When the U.S. invaded Afghanistan, it provided bounties to tribal allies and Pakistani security forces to capture anyone believed to be connected with al-Qaeda or the Taliban and send them to American forces. This led to large swaths of low-level fighters and guys at the wrong place at the wrong time getting snatched up thanks to informants looking for money or scores to settle with their enemies. A Seton Hall study pointed out that only 5 percent of Guantanamo detainees were captured by U.S. forces, while 86 percent were captured by Pakistan or the Northern Alliance and handed to the United States.
Presently, there are 149 men detained in Guantanamo. Of those, 79 are cleared for release, 37 are designated for indefinite detention without charge or trial, 6 currently being tried in military commissions, and 36 who could go to trial. However, Guantanamo chief prosecutor Brig. Gen. Mark Martins told reporters last summer that 20 could be "realistically prosecuted."
Recently, Defense Secretary Chuck Hagel told Congress that the military intends to release six Guantanamo detainees to Uruguay – four of whom are Syrian, one is Palestinian, and the other is Tunisian. All six have been cleared for release for over four years. This would bring the number of detainees cleared for release down to 73 and total Guantanamo inmate population to 143. Meanwhile, the U.S. government deems the indefinite detainees too difficult to prosecute, as there is little to no admissible evidence against them (some was obtained through torture), but too dangerous to release. According to Martins, these indefinite detainees will remain in Guantanamo "until the end of hostilities" against al-Qaeda, the Taliban, and "associated forces." Thus making them prisoners of war in an endless war.
In 2012, President Obama signed the National Defense Authorization Act (NDAA), sections of which allow the military to indefinitely detain American citizens on US soil who allegedly "substantially supported al Qaeda, the Taliban, and associated forces." When Obama stepped into office, he pledged to close the U.S. prison in Guantanamo. But the other half of his plan was less advertised. In order to close Guantanamo, Obama's original plan was to to move some Guantanamo detainees to an Illinois prison. Moreover, his administration decided, early on, to continue utilizing indefinite detention, much to the chagrin of civil liberties groups. However, Congress, particularly members of the Republican Party, fought against this plan not out of opposition to indefinite detention but because they did not want "terrorists" on American soil. This past May, the Obama administration's legal team told Congress that if Guantanamo detainees "were relocated to a prison inside the United States, it is unlikely that a court would order their release onto domestic soil," reported The New York Times.
Despite the fear-mongering of releasing "terrorist" from Guantanamo, according to a New America Foundation study, only 4 percent of released Guantanamo detainees engage in "militant activities against U.S. targets."
Abuses in Guantanamo, according to a 2006 Center for Constitutional Rights report, include beatings, shackling, solitary confinement, sexual harassment and rape, sleep deprivation, medical abuse, and religious and cultural humiliation. Some Guantanamo detainees were detained in secret CIA prisons before arriving at the U.S. military prison in Cuba. An ICRC report on the treatment of 14 "high value" detainees held in CIA black sites revealed that torture techniques in the secret prisons included sleep and food deprivation, playing of loud music, waterboarding, beatings, stress positions, cold temperatures and water, prolonged shackling, threats, and forced shaving. Around 100 detainees were held in CIA black sites and the majority of them were tortured.
However, torture is nothing new in U.S. foreign policy. A 1963 CIA interrogation manual instructs interrogators to utilize similar torture methods during the Cold War that have been used in the War on Terror.
To protest their indefinite detention and prison conditions, last year, Guantanamo detainees went on hunger strike, which launched the issue back into public consciousness. At its height, over 100 prisoners went on hunger strike. Hunger strikers were punished through force-feeding, a harsh procedure that involves shoving a tube up someone's nose and down their esophagus in order to feed them. This practice violates medical ethics and amounts to torture.
While the protest fizzled last year, dozens of Guantanamo prisoners reportedly remain on hunger strike. However, since the military instituted a media blackout on releasing hunger strike numbers, it's hard to know how many.
Last year, officials from the Israeli Medical Association were invited to the United States to advise American policymakers on how to deal with hunger-striking Guantanamo detainees. The Israeli doctors shared their experiences dealing with hunger-striking Palestinian prisoners.
Presently, a draft bill allowing Israeli prison authorities to force-feed prisoners sits in the Israeli Knesset. Israeli Prime Minister Binyamin Netanyahu is pressing strongly for the bill's passage, using the United States' infamous force-feeding of prisoners in Guantanamo as a justification. According to Israel's Channel 2 News, in order to justify the bill, Netanyahu noted "in Guantanamo the Americans are using the method of force-feeding too." Two months ago, dozens of Palestinians prisoners ended their 63-day-long hunger strike. But Israeli leaders like Netanyahu certainly see force-feeding as a useful tool to deal with future hunger strikes.
Military courts in Israel and Guantanamo
To prosecute Palestinians in the occupied territories, Israel utilizes a military court system. Military tribunals are typically used in wartime, particularly by occupying forces. At the U.S. naval base in Guantanamo Bay, Cuba, the United States erected a military court system, at the beginning of the global war on terror, to prosecute suspected terrorists. Currently the defendants include Abd al-Rahim al-Nashiri, the suspected mastermind of the 2000 USS Cole bombing, and the five alleged plotters of the 9/11 terrorist attacks, including Khalid Sheikh Mohammed. The military court systems in Israel and at the U.S. naval base in Guantanamo Bay each have their own unique, byzantine features. However, they do share a number of notable traits.
One commonality is the allowance of coerced evidence. In Professor Lisa Hajjar’s Courting Conflict: The Israeli Military Court System in the West Bank and Gaza (University of California Press, Ltd. 2005, p. 68-69), she writes that interrogations, mostly carried out by Shin Bet but sometimes the IDF and police, "feed the legal process by procuring confessions that are then turned over to police and prosecutors.” Interrogations occur in "inaccessible sites," are "conducted by secret agents," and commonly involve torture methods and other harsh treatment. A Defence for Children International/Palestine Section (DCI-Palestine) report on the treatment of Palestinian children in Israeli military courts points out that, "According to DCI-Palestine lawyers that represent children in Israeli military courts, evidence is rarely excluded that is obtained through force or coercion."
In the Guantanamo military commissions, evidence obtained through torture is prohibited. However, coerced evidence is still allowed.
Another commonality is the use of secret or classified evidence. In the Israeli military court system, "Secret evidence is always the basis for administrative detention (i.e. incarceration without trial). Within the military court system, prosecutors can use secret evidence at extension-of-detention hearings to support their request that judges remand detainees. Secret evidence can also serve as a basis for charges," according to Lisa Hajjar (Ibid., p. 110).
Secret evidence is unavailable to both defense lawyers and defendants. "[T]he defense is afforded no opportunity to know the contents or contest the veracity of the evidence directly," which "taints the legal process" as a result, writes Hajjar (Ibid., p. 111).
The use of classified evidence has been a major issue in the Guantanamo military commissions system. In the commissions system, a protective order prohibits defense attorneys from disclosing classified information to unauthorized parties, including their clients, the press, and nongovernmental bodies. Defense attorneys argue that this undermines efforts to seek redress for torture victims, such as their clients, which is a right under international law. Additionally, defendants can be excluded from pretrial hearings in which classified evidence used against them will be discussed. Much of that classified information relates to how the detainees were treated in CIA custody. All six detainees who are being prosecuted in the military commissions system were detained and tortured in CIA black sites before they were sent to Guantanamo in 2006. Khalid Sheikh Mohammed was waterboarded 183 times, while al-Nashiri was waterboarded and threatened with a gun and power drill. Defense attorneys in the respective cases argue that their clients' torture is mitigating evidence and have been fighting for further disclosure.
Not only is the American-Israeli alliance characterized by $3 billion in yearly aid from the United States to Israel, along with unyielding political and diplomatic support, it is also characterized by shared values in perpetual war and indefinite detention.
Adam Hudson is a freelance journalist and writer based in the San Francisco Bay Area. He covers U.S. national security, war and peace issues, Guantanamo, human rights, police brutality, and institutional racism. He tweets @adamhudson5