6o THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM to fight for the future of humanity. However, this right cannot take the form of a military operation targeting single organizations. One or two operations cannot eradicate the phenomenon of terrorism. The right is much more complex: it is a hybrid comprising passive and active defense measures to ward off terrorist groups. The combination of the two should have sufficient deterrent effect to eliminate the terrorist threat hanging over democratic states. Accordingly, the new convention should reflect the combination of diverse measures available to democratic states in their fight against terrorism, and should especially include an unequivocal authorization to use defensive force in order to obstruct future attacks, cooperation between the state parties in imposing multilateral economic sanctions on every state sponsoring terrorism, and intelligence and law enforcement cooperation among the contracting parties which will lead to freezing the bank accounts of terrorist organizations and to the arrest and extradition of terrorists to the appropriate state for trial. The United States has undertaken to lead the "war" against terror. In order to succeed in this difficult task, it is essential not only to unite the world on the ways and means of achieving this goal but also to understand the roots and rationale of this human phenomenon. Only an informed understanding of the ideological roots of terrorism and its reasons together with a united international front can lead to a change in the current situation. THREE THE BOUNDARIES BETWEEN PERMITTED INTERROGATION AND FORBIDDEN TORTURE Each country bears a moral and legal obligation to protect its citizens from domestic and foreign terrorist acts intended to provoke dread and fear among members of the public. The security services fighting terrorism generally carry out their operations covertly, without unnecessarily exposing their work methods— for one reason, in order to prevent the terrorist organizations from circumventing them. However, the secrecy and dissimulation practiced by the security services also create the potential for these services to improperly exploit the powers at their disposal. In recent decades, more and more states have suffered the heavy hand of terrorism on their own soil. Yet the many terrorist attacks that have actually been carried out are only a drop in the ocean compared to the attempted attacks and subversive operations that have been prevented by the various states in their struggle against terrorism. It is principally these states' security services that pursue the struggle against terrorism. Their function is not merely to capture the terrorists responsible for carrying out past attacks but, more important, to capture those currently involved in planning and executing attacks. One of the main tools used by these services is the interrogation of suspects with the aim of extracting information that may help frustrate future hostile activities. Naturally, no offender is eager to impart information to his interrogators which might incriminate him. The terrorist, however, unlike an ordinary criminal, is not worried primarily about self-incrimination; his principal reason for refusing to cooperate with his interrogators is 02 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM his desire not to let his capture detract from his friends' chances of carrying out their terrorist ambitions. Accordingly, conventional interro-gational techniques and positive or negative incentives that might lead an ordinary offender to reveal information are not effective with regard to terrorists. In addition, clearly one cannot attribute the same degree of importance to the interrogation of a person who is suspected will be involved in a future criminal act because of motives of greed or vengeance and the interrogation of a person who is suspected will be involved in future criminal acts for ideological reasons. A failure in the first case could result in the failure to thwart a future criminal act, whereas a failure in the second could result in failure to thwart a future terrorist attack. As explained in chapter i, even though it is feasible that both acts—criminal and nationalist—will be equally grave (or even that the criminal act will be more grave than the nationalist), in regards the manner in which they are carried out and the harm they cause, the terrorist act will inevitably be much more serious, since the gravity of the act is measured not merely by the concrete and immediate injury to the victim but primarily by the objective it seeks to achieve and its unique characteristics. It follows that preventing the terrorist act is more important than preventing an ordinary criminal act, so that while it is possible in the case of suspects in future crimes to accept unquestionably the absolute prohibition on interrogation techniques that entail elements of torture, there is a dispute whether this should also be the position when the suspects being interrogated are terrorists who possess information that may allow future terrorist acts to be frustrated. Whereas on one side of the balance are basic human rights and freedoms owed to the terrorist by virtue of his being a human being—rights which express the democratic state's commitment to values it holds dear and in the name of which it fights terrorism—on the other side are the peace and safety of the citizens of the state as well as the exceptional importance of preventing terrorist acts. The result is a hugely difficult moral and legal question in the fight against terrorism: What are the limits of the physical and psychological pressure that the interrogators of the security forces may exert against persons suspected of holding information regarding future hostile activities? Is there an absolute prohibition on using interroga-tional techniques involving torture, or can circumstances exist in which such techniques are permitted? This morally and legally complex question is the subject of the present chapter. INTERROGATION OF TERRORISTS 6ß What Is Torture? Before turning to an examination of permitted means of interrogation, it is necessary to consider what is meant by torture. There is no clear and unequivocal definition of this term. An examination of the international conventions dealing with this issue reveals that there is a distinction between acts that amount to torture and acts that are in the nature of cruel, inhuman, or degrading treatment. However, there are no criteria that clarify the distinctions between these categories.1 The UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted in 1984 and entered into force in 1987, defines torture as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.2 Torture can therefore be either physical or psychological. While physical torture consists of causing deliberate and direct physical pain, psychological or mental torture injures the soul of a person.3 The majority opinion in the case of The Republic of Ireland v. The United Kingdom, in the European Court of Human Rights, held that the difference between torture and cruel, inhuman, or degrading treatment lay in the intensity of the suffering caused.4 Torture is the deliberate use of inhumane treatment which causes severe and cruel pain and suffering.5 In contrast Judge Franz Matscher, in the minority, was of the opinion that the difference between the two does not ensue from the intensity of the suffering. In his opinion, "[T]orture is in no wise inhuman treatment raised to a greater degree. On the contrary, one can think of brutality causing much more painful bodily suffering but which does not thereby necessarily fall within the concept of torture."6 He held that the distinction between the two categories lies in the fact that torture is calculated, routine, and deliberate and causes physical or mental suffering, all for the purpose of breaking the spirit of the suspect in order either to coerce him into performing an act or to cause him pain for another THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM reason, such as sadism per se. The judge did not reject the existence of a certain threshold, but in his opinion that was not the determinative test.7 A number of judges in the same case viewed the definition of torture in a different manner. Judge Zelda was of the opinion that it is necessary to examine whether torture is being practiced in particular circumstances using also a subjective and not just an objective test. Thus, in his opinion the definition of torture should take into account a number of additional criteria, such as the nature of the inhumane treatment; the means and practices entailed by it; the duration and repetitiveness of that treatment; the age, sex, and state of health of the person undergoing the treatment; and the likelihood that the treatment will cause psychological, mental, or physical pain to that person.8 He explained his opinion with the example of "the case of an elderly sick man who is exposed to a harsh treatment—after being given several blows and beaten to the floor, is dragged and kicked on the floor for several hours. I would say without hesitation that the poor man has been tortured. If such treatment is applied to a wrestler or even a young athlete, I would hesitate a lot to describe it as an inhuman treatment and I might regard it as a mere rough handling."9 Judge Sir Gerald Fitzmaurice in the same case held that the reason Article 3 of the European Convention would not be accorded a broad and precise interpretation was the desire to enable each case to be considered individually, on its merits, and to allow a decision to be made whether particular circumstances amounted to torture. Thus, the interpretation of this term had to be subjective. The judge pointed out that, nonetheless, there were a number of circumstances that, from an objective point of view, would always be regarded as torture, even though not all suffering was torture.10 The very application of the term "torture" to a particular case signifies the adoption of a negative moral stance in relation to it; in other words, it is an assertion that the particular act is prohibited. Accordingly, not every infliction of severe pain is torture; it may merely be the prohibited infliction of pain.11 From the foregoing it follows that the definition of the term "torture" is not unequivocal. Even those who proposed an objective test did not put forward a definitive definition. Determination was apparently left to discretion and common sense. Thus, the examples given in the judgment to illustrate the difference between "torture" and "pain and suffering" also turned to existing intuitions and did not assert clear boundaries. Notwithstanding the lack of a clear definition, current theoretical research distinguishes among four different objectives of torture: tor- INTERROGATION OF TERRORISTS 6$ ture for the purpose of extracting information or admissions from the suspect (interrogational torture); torture for the purpose of frightening the person, or indeed all the members of the group with which he is affiliated (known as "terrorist torture") in order to cause them to conduct themselves differently or to desist from performing a particular action; torture in order to punish a person for an act committed in the past; and torture in order to prevent a person from perfonning a future act. There seems to be a general consensus on the absolute prohibition of torture for the purpose of provoking fright or as punishment, but views are divided on the question whether there may be circumstances that would permit torture for interrogational or preventive purposes.12 The type of torture relevant to our discussion is, in practice, a combination of the last two, its purpose being to cause the suspect serious physical or mental pain in order to extract information from him which might help the security forces thwart future acts of terror. The Defense of Necessity versus the Defense of Justification As noted, there are a number of degrees of suffering which do not fall within the boundaries of torture, but rather within the boundaries of suffering or inhumane treatment. But in those cases where the suffering caused the suspect indeed amounts to torture, the question arises whether there are' circumstances in which it may nonetheless be permitted, from both moral and legal points of view. If so, will those interrogators who have employed unacceptable interrogation techniques have a defense? What defenses? When is Torture Morally Justified? The very fact that the conventions referred to above do not contain any exceptions to the definition of torture—that is, that the moral obligation not to torture is absolute—does not mean that no situations exist in which one can find a balance between this obligation and another moral obligation equal to it in rank. However, if we start to qualify the absolute prohibition and draw a balance between conflicting obligations, we will detract from the significance of the absolute nature of the moral obligation.13 But in contrast to the approach contending that moral obligations in general, and the obligation not to torture in particular, are absolute in nature, there is an approach that asserts that one should not make haste to attach the label "absolute" to moral obligations. Thus, although Kant was of the opinion that the duty to tell the truth is absolute even if a fie could save human life, Daniel Statman 66 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM argues that one should not declare a moral obligation to be absolute. As he states, "It seems that with regard to the majority of the moral duties, if not all of them, we have a strong intuition that, in extreme cases, certainly where the existence of the whole world depends on this, the duties may be overridden. Lying, treason, killing innocent people—are all prohibited and abhorrent acts but in respect of each one of them it is possible to think of an imaginary case where breach of the duty is essential for such an important purpose that it amounts to a duty."14 One situation where it may be morally possible to justify torture is the classic case of the "ticking bomb." The "Ticking Bomb" Situation The phrase "ticking bomb" refers to a situation where there is no other choice, in the limited period of time available and in order to prevent damage which is anticipated, for example, as a result of a bomb which has been activated, but to interrogate a suspect using torture. The premise is that the suspect is thought to know, directly or indirectly, details that may assist in preventing the damage or at least minimizing it. There are those who see justification for the use of torture in the case of a "ticking bomb" as obviously necessary.15 This term is not unique to the nationalist criminal context but refers to all criminal situations, including, for example, the interrogation of a person who knows the hiding place of a criminal who has kidnapped someone and intends to torture and murder the victim. However, in this chapter I shall refer only to the "ticking bomb" situation in the criminal-terrorist context. There is a problem with the definition of the term, in that it is not clear when a particular situation will qualify as a "ticking bomb." Generally there is only information about an abstract intention to lay a bomb, and it is not known whether this intention is serious or immediate. The duration of the "ticking" may theoretically be very long, and on occasion only an empty threat has been voiced. The investigators dealing with the suspect do not know for certain how much time they have to extract relevant information from him. Further, they do not know for certain what the particular suspect knows. The necessary details generally become known only post facto; at the time of the investigation, the interrogators can only make conjectures and assumptions about the case at hand, and use their discretion to decide whether it indeed requires the adoption of measures generally prohibited from a moral point of view. Following the Oklahoma City bombing in 1995, some Americans perceive all terrorist militias, indiscriminately, as ticking time bombs.i6 Thus, there is a danger that in times INTERROGATION OF TERRORISTS 6j of emergency or security alert, any person suspected of being a terrorist will be regarded as a "ticking bomb," without objective support. Accordingly, it is necessary to exercise caution and establish clearly and decisively the nature of the "ticking bomb" situation, as well as set clear limits to the duration of the "ticking" that would justify torture. It seems likely that a situation where a bomb may be set off after a year would not fall within this definition; however, a situation where a bomb will certainly be set off within twenty-four hours would almost certainly fall within it. It is possible to provide that, in cases of doubt, the determination whether it is permissible, in the absence of any other choice, to use torture will be subject to the review of higher-ranking authorities or the judicial system, which will make an immediate decision on the matter.17 A different problem relates to the rarity of "ticking bomb" situations. It is hardly ever known with great certainty whether the particular suspect being interrogated indeed possesses information that may frustrate the planned attack, or whether the attack against numerous people will indeed take place if the vital information is not extracted from the suspect. But despite the rarity of these circumstances, the appellation "ticking bomb" is attached to numerous situations that do not fall within the definition, in order to justify a particular style of interrogation.18 By widening the terminology to situations where the danger is not certain or where there is no information that it can indeed be prevented, without any real possibility of supervising those situations where it is contended that a "ticking bomb" exists (since most of the details relating to those situations and suspects are not published and are shrouded in secrecy), there is the risk of creating a slippery slope, as well as the risk that the extraordinary situation will be divested of meaning, since all circumstances will fall within the boundaries of that definition. An additional danger is that of falling into the trap of fixed ideas, that is, the situation in which interrogators are so convinced that the suspect holds the information they need that they lose the ability to assess contradicting indicators in an unprejudiced manner.19 In other words, the moment the investigators decide that they are dealing with a man who possesses information that can prevent serious damage and that they have no choice but to torture him, nothing will prevent them from continuing to torture him until they are convinced that he has surrendered all the information they require. Even if he swears that he knows nothing, and this is the truth, they are not likely to believe him, and therefore they will continue to torture him fruitlessly until they are satisfied by a particular answer given to them. Further, in order to enable justification of the torture from a moral 68 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM point of view, the means of interrogation must be proportional to the situation the interrogators are trying to prevent. Thus, if there is information about the existence of a bomb that may kill many people, it may be possible morally to justify the torture of a suspect, even to the point of death, in order to prevent the deaths of those people. However, if it is known that the explosion has been laid in a derelict place where it is unreasonable to assume that any loss of life will occur, it will not be possible to justify interrogations involving torture to the point of death. Justification for torturing the suspect will also increase the greater and more direct the suspect's responsibility for the crime that is about to be committed. If, for example, the suspect only incidentally heard details of the crime and was threatened with death if he disclosed those details, there is little justification for interrogating him using torture. Another aspect of that justification is that it is solely up to the suspect himself to end the torture applied during his interrogation. If he delivers up the information he had hoped to conceal, there is an assumption that his torture will be terminated.20 According to the utilitarian moral approach, in order to preserve the maximum general good of society, the interrogator will on occasion also have to breach values that he regards as right. Michael S. Moore, who believes that it is forbidden to torture or harm innocents, even if the result of that activity is the saving of other lives,21 points out that the proponents of the theory of utilitarianism will never be consistent in preserving a rule such as "never torture an innocent child." This moral tenet, in his view, has a place in academic debate but not as a rule of life, because of the drawbacks of this approach in certain circumstances: If the rightness of action is ultimately a function of achieving the maximally good consequences available to the agent in that situation— which is what any consequentialist believes—then sometimes an agent ought to violate what he himself admits is the right rule. Suppose, for example, a GSS [the Israeli General Security Service] interrogator was certain about the immediately relevant facts . . . —he knows there is a bomb, that it will kill innocents unless found and dismantled, that the only way to find it is to torture the child of the terrorist who planted it. Suppose further he is already in possession of this information, and the costs of calculating utility are thus already "sunk"; suppose further that he himself is about to die and that he can keep his action secret, so that the long-term bad consequences stemming from his own or other's corruption of character will be minimal. In such a case, adhering to the best rule will not be best, on consequentialist ground.22 INTERROGATION OF TERRORISTS 6() Moore poses the example of the torture of a family member of the terrorist, in particular torture of his child, in order to break the terrorist and cause him to disclose information in relation to the terrorist activity thereby preventing harm to many others. He indicates that if one continues with the line of thought of the pure theory of utilitarianism, then in such a situation, according to that theory, one is not entitled but actually obliged to torture the child. However, in Moore's view, it is wrong to justify the torture of an innocent child, even if that torture would lead to favorable results, such as the saving of other innocent lives.23 Necessity or Justification? On May 31, 1987, the government of Israel decided, in consequence of two cases, to establish a commission of inquiry to examine the methods used by the GSS at times of terrorist activity. The first case concerned Izat Nafsu, a lieutenant in the Israeli Defense Forces who was accused of treason and espionage and was convicted on the basis of his confession, obtained by GSS investigators. Following his conviction, he contended that his confession had been coerced through torture. The second case related to the incident known as the Bus 300 affair. In that incident a bus was hijacked by terrorists. GSS agents gained control of the bus and were seen to capture two terrorists alive. Some time later it was announced that these terrorists had been killed. How did these terrorists die, if they were captured alive? Because this was an issue of such great public importance, a commission of inquiry was established under the chairmanship of a former president of the Supreme Court, Justice Moshe Landau, charged with examining the investigative procedures of the GSS in cases of terrorist activities, and the related matter of giving false testimony in court about these investigations. The commission held forty-three hearings during which it examined forty-two witnesses, including prime ministers; GSS personnel, from the heads of the service to field officers; members of the legal, civilian, and military services; and other public servants. Similarly, experts in different fields were examined, as were persons who had been investigated by GSS interrogators. The commission also visited GSS interrogation centers.24 One of the conclusions of the commission was that even if the interrogation methods of the GSS interrogators entailed torture, those interrogators could avail themselves of the criminal law defense of necessity.25 This determination has been the subject of extensive criticism. ■JO THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM The Defense of Necessity During the process of enacting any law, and in particular a criminal law, it is not possible to predict all the situations in which a breach of the law might be justified, since every punitive norm represents the typical abstract situation it is intended to prevent. As a result, the law contains a number of defenses, such as the defense of necessity, which allow a person to be discharged from criminal liability in cases where he has committed an offense but there are strong moral and social justifications for performing the act. The uniqueness of the defense of necessity ensues from its amor-phousness and broadness in relation to the question of when it will be justified to breach the law, thus making the defense compatible with the concept underlying it—taking the best possible step in the circumstances of the case.26 The defense of necessity is applicable when a situation is forced on a person whereby, in order to prevent a real danger, his only recourse is to impair the protected interest of another—subject to the condition that there is no other way of preventing that danger and that the preventative measure causes less damage than the act prevented. This is the concept underlying the defense: enabling the prevention of a great wrong by performing a lesser wrong. With regard to the level of difference required between the wrong preferred and the wrong to be prevented, there are two basic approaches. One requires a clear difference. The logic behind this demand is to reduce mistakes in the choice. In other words, since the defense relates to emergency situations that have not been foreseen or are unclear, it is desirable to prevent the possibility of an error being made when balancing the alternatives (i.e., the act to be prevented vis-ä-vis the act to be performed). The second approach demands a great difference. The rationale behind this demand relates to the typical situation giving rise to the defense. If there is a great discrepancy between the act to be prevented (e.g., the killing of a large number of people) compared to the prohibited act (e.g., damage to property), it is clear that we would want to apply the defense. However, if the rationale behind the defense is the prevention of mistakes, we would also want the defense to apply in a situation where the discrepancy is clear but is not necessarily great.27 In the past there was no requirement that the emergency situation be imminent for a defense of necessity. The commission's final report (the Landau report), too, stated that there was no need whatsoever for the requirement of imminence in terms of the defense of necessity, a statement that has given rise to extensive criticism. To illustrate its conten- INTERROGATION OF TERRORISTS yi tion, the commission put forward an example given by Paul H. Robinson in his monograph on criminal law defenses. The example involves a ship with a small hole in its hull. The ship is still safely anchored at harbor when the small hole is discovered. Accordingly, the commission contended, the situation is not one of imminent danger; moreover, the hole is a small one. Imminent danger will arise only in the open sea, but then it will be too late to take action and the ship will sink. Therefore, the preventative step must be taken while the vessel is still at port, when the danger is not yet imminent.28 S. Z. Feller disputes the commission's determination, stating: "Every drop of water that enters the ship's hull at the beginning forms part of the flood that will capsize her in the end; the water's 'attack' begins with the very first drop.. .. Every advance out to sea takes time and retreat to shore will require at least equal time, if not more.... There is no better example than this to demonstrate and define the 'immediacy' condition inherent to 'necessity.'"29 In the case of the "ticking bomb" as well, there is an element of imminence, and the interrogator may have available to him the defense of necessity, whether the timer is set for an hour later or a day later. So long as the interrogator does not know with certainty how much time he has at his disposal to neutralize the bomb, he must act as if the danger will come to pass at any moment. Today, the requirement of imminence has been incorporated into the law itself. The Defense of Justification In contrast to the defense of necessity, which applies to situations that cannot be anticipated in advance, the defense of justification is available when a person acts in a manner contrary to the provisions of the penal code, but he does so for some justified reason given to him before the commission of the offense. Such justification can be, for example, a statutory provision, or a provision in a statutory regulation.30 The rationale behind this defense is to enable people to act in accordance with the provisions of various laws, the implementation of which they oversee, or, in certain cases which may be anticipated, without fear that they will be put on trial for such activity. Thus, a predetermined defense is given to a certain act that is deemed to be worthwhile and beneficial to society, since it is considered desirable for people not to fear to perform it. In the case of justification, certain advance authorization is given to take a particular action in particular circumstances; in contrast, in the case of necessity, the situation is not anticipated in advance, and it is only possible retroactively to authorize the action taken. The defense of justification will apply if other conditions of the law have been met, 72 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM whereas the defense of necessity will apply if the conditions of the defense itself have been met. The defense of justification ensues from the provisions of existing law, whereas the defense of necessity ensues from given facts, which are not preestablished. Which is More Appropriate, Necessity or Justification? Following a rinding that torture had been employed during GSS interrogations, the Landau report recognized the defense of necessity as an appropriate defense for GSS interrogators. However, is it actually the defense of necessity that is appropriate in this situation? The answer seems to be—not inevitably. The commission itself called for the enactment of legislation that would authorize and justify the activities of the GSS in general, and the form of interrogations by the GSS in particular. Reference here is to recurrent and foreseeable situations. Accordingly, in practice, the most appropriate defense in these cases is not the defense of necessity, as was asserted, but rather the defense of justification. Since it is possible to foresee a broad range of possible situations that may arise during the course of interrogations, it is possible to reduce them to writing and subject them to a particular standard, which will determine when the defense will arise. In contrast, necessity is not given to standardization, as the situations falling within this category cannot be foreseen.31 A criminal defense that is available to every citizen, including public servants, cannot also provide a source of authorization for certain activities. Thus, only when a person is subject to the pressure of the moment, without prior preparation for the situation he has encountered, is he likely to act out of necessity otherwise than in accordance with the law— in order, for example, to save a number of people. The position is different if the same person attempts to act in a situation that could have been foreseen, relying on authorization available to him by virtue of the defense of necessity. The defense of necessity was not created for these situations. The defense of necessity is tested in the hght of a particular situation, whereas an empowering statute confers authorization to act in advance and not retroactively. In addition, the power is granted for a general and not a particular situation. An additional danger inherent in the defense of necessity ensues from the lack of clarity as to when a situation is in the nature of a "necessity." Every interrogator will interpret "necessity" in a different manner, and this lack of uniformity is also problematic. In a democratic state where the rule of law prevails, and within the principle of legality, it is necessary to specify clearly in statute the boundaries of individual rights thatthe government should not infringe. INTERROGATION OF TERRORISTS 75 If it is desired to enable certain exceptions that would make possible the infringement of individual rights, then these too must be prescribed by statute, as must be the identity of those entitled to infringe them.32 The contentions raised against statutory regulation of the activities of the GSS, in order that the defense of justification become available to the interrogators, include, inter aha, the contention that in order to preserve the effectiveness of the interrogation it is necessary to maintain the element of uncertainty. Among the factors influencing the suspect being interrogated is his lack of knowledge of the boundaries of the interrogation and what he may expect as it proceeds. But if these matters become entrenched in a public law or even in privileged internal guidelines, it will not be difficult for terrorist organizations to identify the limits of the interrogational pressure to which their members would be exposed upon capture (one way would be by debriefing persons interrogated and subsequently released). This would allow them to prepare and anticipate future actions and would lead the element of fear and uncertainty to disappear. If the suspect does not know whether the next stage of the interrogation will be more painful, it is likely that he will break earlier. In contrast, if no predetermined definition exists as to what is deemed to amount to moderate physical pressure, the danger of the slippery slope again arises. Interrogators are likely to regard every interrogatory measure as a measure falling within this definition. In choosing one'of these two possibilities, Feller has commented: The necessary conclusion is that we must choose between two alternatives: either to prohibit any pressure, as moderate pressure confined to present limits cannot be effective, or to permit, by law, the use of unlimited pressure to an extent not formally predetermined as shall be necessary to break the suspect and cause him to divulge the information sought; the only limit being that beyond which no suspect remains, physically or psychologically, to be interrogated. Only pressure thus limited, or more precisely, only pressure not formally limited can be effective. In our opinion .. . the first is absolutely preferable.33 To present the full picture, it should be pointed out that, countering the contention that interrogations are not foreseeable, it is possible to document them to some extent. Today, many interrogation practices are known, whether because they are documented in the case law itself or because they are attested to by persons who were subjected to interrogations. Further, persons who have been interrogated once are likely to be interrogated again, so that they will know more or less what is in store for them, and will know how to prepare mentally for the interro- 74 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM gation. Accordingly, the contention that it is necessary to preserve the secrecy of interrogation practices so that the suspects will not know where they stand and what they may expect is partially weakened. An additional ground for asserting that there is no room for statutory regulation of interrogation practices is that whereas possibly, from a moral point of view, there are circumstances in which use can be made of extreme measures against a person, it is not customary for a democratic state to proclaim the same in a statute. The legal scholar Sanford H. Kadish has pointed out, " While it is morally permissible to use cruel measures against a person if the gains in moral goods are great enough, it is not acceptable for the state to proclaim this in its law."34 In his view, it is wrong to declare in a law that a state is permitted to make use of cruel measures under certain conditions. A single interrogator, on the other hand, may decide, as an individual, to make use of these measures, a decision that may later be held to be justified from a moral point of view.35 In addition, even if there is a statutory provision prohibiting the use of cruel measures under any conditions, the interrogator will still retain discretion, according to the approach of utilitarian morality, whether or not to use them.36 Thus, a statute that prohibits the use of these measures will in practice raise a greater obstacle against which each situation will be tested, but it will not completely prohibit the use of these measures. In contrast, a statute that permits the use of these measures in particular circumstances will fail to educate people to follow a desirable morally conscientious line, and the hoped-for result will not be achieved. Legislation that permits the adoption of these tactics and regulates the answers to such questions as, in which situations is it permitted to make use of these measures? for how long is it possible to deprive a person of sleep? will only lead to a worsening of the existing situation, such as occurred in the Middle Ages, when torture was regulated by law.37 The state cannot justify the activities of the GSS and enable a person to be injured in order to achieve social good. Such an outcome is not consistent with the respect that a state accords human rights. In opposition, the view has been voiced that the power to authorize this form of conduct in interrogations should not be left in the hands of individual interrogators, but rather these decisions should be directed to and addressed by an authorized body—a body such as a security committee. Further, following the Landau report, which authorized the use of moderate physical pressure on suspects, criticism was raised that this determination turned the suspect into a mere object containing infor- INTERROGATION OF TERRORISTS 75 marlon. A suspect subject to interrogation before the report was issued was subject to physical pressure and was powerless and defenseless in the face of the force exerted by his interrogators. From the moment this situation was given normative backing by the commission, the suspect would feel even more powerless, since the law, which generally safeguarded and granted strong protection to the rights of the individual, would no longer be available to him. Thus, the commission unknowingly created a form of "law" authorizing torture, contrary to its primary intention—the prevention of torture. There is another possible danger ensuing from the authorization of moderate physical pressure. Psychologically, lowering the threshold slightly may lead to its complete disappearance—the danger of the slippery slope. Moreover, a situation may arise in which the development of sophisticated investigative methods will be brushed aside, to the extent that the use of force becomes a legitimate and acceptable work practice. This criticism will become even more valid if legislation is enacted that permits this GSS activity. Until the enactment of a possible law, which will only see the light after public debates in which diverse views can be exchanged, interrogators must receive separate authorization for each activity from those overseeing them. In this way, in practice the defense of justification will be available to them, whether through an order of their superiors or as a matter of statutory authorization. Currently, no express written provision exists that permits the torture of a suspect under certain conditions. In contrast, the defense of necessity is not available in interrogations that have been conducted in routine situations where a suspect refuses to cooperate in an amicable manner.38 These factors are contrary to the situation where the defense of necessity arises, as explained above. Recently, this issue was discussed in the GSS interrogation case, where it was stated: General directives governing the use of physical means during interrogations must be rooted in an authorization prescribed by law and not in defenses to criminal liability. The principle of "necessity" cannot serve as a basis of authority.... If the state wishes to enable GSS investigators to utilize physical means in interrogations, it must enact legislation for this purpose. This authorization would also free the investigator applying the physical means from criminal liability. This release would not flow from the "necessity defense," but rather from the "justification" defense. .. . The "necessity" defense cannot constitute the J6 THE STRUGGLE OF DEMOCRACY AGAINST TERRORISM basis for rules regarding an interrogation. It cannot constitute a source of authority which the individual investigator can rely on for the purpose of applying physical means in an investigation.39 One of the judges in this case, Justice Yaakov Kedmi, proposed that the effectiveness of the judgment be deferred for a year, in order to enable the state to adapt to the new state of affairs established by the court, and out of a desire to ensure that in a genuine case of a "ticking bomb" the state would be able to cope. During the course of the proposed year, GSS interrogators would be prohibited from utilizing extraordinary interrogation methods except in rare cases of suspects defined as "ticking bombs," and even then it would be necessary to obtain the express consent of the attorney general.40 The Process of Interrogation: Permitted and Prohibited Practices Israel An investigation, by its very nature, places the suspect in a strenuous position. Every investigation is a "battle of wits" in which the investigator attempts to uncover the greatest number of details about the suspect. Not all measures are legitimate in this battle. It is necessary to determine which investigative procedures are permitted and which prohibited. In crystallizing the rules of investigation, a balance must be drawn between two interests. On one side lies the public interest in uncovering the truth by exposing offenses and preventing them; on the other is the wish to protect the dignity and liberty of the suspect. Indeed, a "democratic, freedom-loving society does not accept that investigators may use any means for the purpose of uncovering the truth.... To the same extent, however, a democratic society, desirous of liberty, seeks to fight crime and, to that end, is prepared to accept that an interrogation may infringe upon the human dignity and liberty of a suspect provided that it is done for a proper purpose and that the harm does not exceed that which is necessary."41 In addition to the conditions of imprisonment and detention, which themselves have an enormous impact on the mental state of the suspect, during the course of interrogation of a person suspected of terrorist activities, the GSS on occasion uses of interrogation methods that have recently been held by the High Court of Justice to be prohibited.42 These methods of interrogation include a number of techniques.43 The first is the practice known as "Shabach," described as follows: INTERROGATION OF TERRORISTS "Shabach" is a combination of means of sense deprivation, pain and sleep deprivation, which are conducted over a long period of time. "Regular Shabach" includes tightly cuffing the hands and legs of the suspect while he is seated on a small and low chair, whose seat is tilted forward, towards the ground, so that the suspect's seat is not stable. The suspect's head is covered by a sack, which is generally opaque, and powerful loud music is played ceaselessly, through loudspeakers. The suspect is not allowed to sleep throughout the course of the "Shabach." The sleep deprivation is carried out through the above measures, as well as in an active manner, with the guards shaking all who try to doze.44 There are variations of the "Shabach" position. In one, known as the "freezer," an air conditioner blows cold air directly on to the suspect, generally while he is in the interrogation room. Another variation is "standing Shabach," in which the suspect stands with his hands cuffed to a pipe attached to the wall behind him; the pipe is either on the same level as his hands or his hands are pulled upward and his body inclined forward. The second method is essentially psychological. During the interrogation the interrogators curse and threaten the suspect. The threats include threats of murder, with the ability to kill illustrated by references to persons who were killed while in detention or under interrogation; threats are also directed at members of the suspect's family. The third method, known as "Kasa'at a-tawlah," uses a table and direct pressure to painfully stretch the suspect's body: The measure, which combines a painful posture and application of direct violence by the interrogator, is practiced during the interrogation itself. The interrogator forces the suspect to crouch or to sit (on the floor or on the "Shabach" chair) in front of a table, with the back of the suspect to the table. The interrogator places the arms of the suspect, cuffed and stretched backwards, on the table . . . part of the time, the interrogator sits on the table, trampling with his feet on the shoulders of the suspect and pushing him forwards, so that his arms are stretched even further backwards, or he pulls the legs of the suspect, and thereby achieves the same effect.45 Another method is the "frog crouch." The suspect is forced to crouch on tiptoe, with his hands tied behind his back. If he falls or tries to sit, he is forced to resume his crouching position. A fifth method applied during interrogations takes the form of vio- 7