Israeli lawyers: Treatment of Gitmo detainees worse than what Israel does

I was interested, and encouraged, to see that among the 23 ‘amicus curiae’ (friend of the court) briefs presented to the U.S. Supreme Court in support of the habeas corpus petition submitted by Gitmo detainees Boumediene and Al-Odah was this one (PDF), sent in by seven Israeli law professors, one of whom has done his military reserve service as a military judge since 1994, and another who was previously President of the IDF’s tribunal for the Southern (Gaza) Command.
The Boumediene ruling (PDF) was, of course, the one that the Supreme Court delivered yesterday that stated that yes, the detainees held at Guantanamo do indeed have the right to file habeas corpus petitions to the civilian US courts.
If you go to p.17 of the PDF file of the Israeli lawyers’ amicus brief (p.2 of the original doc), you can read the summary of the argument they make. It says:

    Judicial review of executive and military detention, the indispensable core of habeas corpus, need not be sacrificed to protect public safety and national security, even in the face of an unremitting terrorist threat. Israel has demonstrated that security detainees and prisoners of war, including alleged unlawful combatants, can and should be afforded the opportunity for prompt, independent judicial review of the factual basis for their confinement. Israeli experience
    demonstrates unambiguously that providing such review to Guantánamo detainees would not be “impracticable and anomalous.”
    The safeguards provided under Israeli law, though denied to Guantánamo detainees, are not only workable but also are essential components of the rule of law. No process that lacks these core features can be considered an adequate substitute for time-honored forms of judicial review, such as the traditional writ of habeas corpus. Israeli authorities, executive as well as judicial, support these rights as necessary elements of the response to terrorism in a resilient democratic society governed by law.

Bottom line: the “CSRT” review system that the DOD established in Guantanamo provided even fewer safeguards for the rights of those detained than the hearing system used by Israel in its lengthy and often challenging administration of the occupied territories… And these lawyers tell us that these detainee rights are “necessary elements of the response to terrorism in a resilient democratic society governed by law.”
Human rights organizations have frequently criticized several aspects of the Israeli system for military-judicial review of detention orders– including the ruling the Israeli Supreme Court gave some years ago that states that “moderate pressure” is a permitted way of extracting “information” and does not taint evidence presented to these review bodies. allowed those engaging in the crime of torture to provide an ill-defined “necessity” defense for their acts. (See first comment below.) So I would not say that the Israeli system is anywhere near perfect.
But it is sobering to hear these Israeli specialists telling our Supreme Court how much worse the Guantanamo system is.

8 thoughts on “Israeli lawyers: Treatment of Gitmo detainees worse than what Israel does”

  1. the ruling the Israeli Supreme Court gave some years ago that states that “moderate pressure” is a permitted way of extracting “information”
    You’ve got the history slightly wrong, Helena. The use of “moderate physical pressure” as a standard for interrogation was recommended by the Landau Commission in 1987. The Supreme Court judgment, which was issued in 1999, rejected this formula and held that use of torture could never be lawful.
    The controversial part of the Supreme Court judgment was its discussion of the defense of necessity. The court stated that, because torture was a crime and because necessity is a defense to all crimes under Israeli law, an interrogator who committed torture could under some circumstances plead necessity to avoid prosecution. It would have been better if the court had not engaged in this discussion (which, as it acknowledged, was not an issue before it), because its words have been much misinterpreted. The court was very clear in stating that torture was always a crime, that the necessity defense did not justify an order to commit torture ex ante, and that it was only relevant if a torturer sought to defend himself against indictment. Many, however – including, unfortunately, some members of the Israeli security services – have interpreted this to mean that the court deemed torture permissible in a “ticking bomb” situation, and have conducted themselves accordingly.
    It is this unintentional loophole that has caused a lot of trouble since, especially among Shin Bet interrogators who perceive every situation as involving “necessity.” It needs to be closed, hard, but the judges themselves were adamant in saying that torture is never legal.

  2. Also, from page 21 of the amicus brief (citations omitted): “Moreover, evidence obtained by techniques that violate such fundamental rights is subject to exclusion in both criminal trials and administrative proceedings.”
    The problem in Israel – as in the United States – is that judges are often unwilling to believe that the defendant has been tortured.

  3. Sorry Helena, these Israeli lawyers may well be fine and progressive people, i.e. post-Zionists – but, regardless, the use of “rule of law” as applied to Israel just makes me wretch!

  4. >>> Correction< Sorry Helena, these Israeli lawyers may well be fine and progressive people, i.e. post-Zionists - but, regardless, the use of "rule of law" as applied to Israel just makes me retch!

  5. Treatment of Gitmo detainees worse
    There is doubt with this statement. its either this lawyer don’t know what 60 years Israelis human rights records or he simply trying to make looks less evil with human rights than US.
    Helena just one question to you, did you search who did and advice Gitmo staff on the way and rules for torturing and interrogators who are those specialists and who are those advisors are they from US?
    You should do and come to tell us!
    The problem in Israel – as in the United States – is that judges are often unwilling to believe that the defendant has been tortured.
    Good try Jonathan Edelstein, do think these judges drive their judgment by what they feel or what they see or what hear?
    You know as you a lawyer that in justices system they are very concerned of any interferences of media and anger due to crimes and some times, they try to make things still to make fair trials for criminals.
    Jonathan Edelstein back with your example of playing down Israelis evilness of human rights violations these judges they follow the rule of the Zionist state not their merits of judgment or what the defendant has been said or what his close family and his lawyer saying all that been ignored.

  6. The Reuters cameraman 24-year-old Fadal Shanaa was killed while filming the Israeli tank attack in central Gaza.
    According to Al Jazeera Satellite channel Shanaa was killed when he finished filming and was taking his car to send his footage about the brutal attack.
    Fadel Subhi Shana appeared, prior to his death, on the Arabic channel and said that he will never quit his job except if he dies or his legs are amputated.
    Jonathan Edelstein those Israeli’s judges unwilling to believe these stories and they ignore all these indecent because the witness was killed isn’t?
    The two Geneva based organizations presents their sincere condolences to the family of the young cameraman and his loved ones as well as to Reuters.
    Statement of UN rapporteur on human rights in occupied territories
    18 April 08

    How long is this madness to continue without serious international intervention? It has become clear to many responsible persons with experience of the conflict, both in Israel and elsewhere, that only direct negotiations or talks between the real parties involved – Israel and Hamas – can stop the killings.

    Israel’s unwillingness to talk to Hamas is understandable, given Hamas’ hostility to the State of Israel. But there is no reason why the United Nations, acting through the Security Council or the Secretary-General, should not intervene and assert its role as mediator. This is a role that the United Nations has traditionally played, even where one of the parties has been labeled as ’terrorist’. It is the responsibility of the United Nations, as the ultimate guardian of human rights and international peace, to open lines of communication between Israel, Hamas, and the Palestinian Authority in Ramallah, and to bring them to the negotiating table. Such a step would also contribute to the advancement of Palestinian national unity – another area which the United Nations has to date failed to address.

  7. US has completely withdrawn from the Human Rights Council spread like wildfire Friday afternoon (June 6) through the corridors of the Palais des Nations in Geneva. There was general consternation amongst diplomats and NGOS. Reached by phone, the American mission in Geneva neither confirmed nor denied the report. Although unofficial, the news comes at a time of long opposition by the Bush administration to the reforms which created the Human Rights Council in June 2006. Washington announced from the beginning that the US would not be an active member but its observer status would mean that it could intervene during the sessions. To date even this has rarely happened.

  8. Jonathan, thanks for your clarification, which I have now tried to incorporate into the text, as indicated.
    Timothy L, I don’t have any reason to believe these Israeli lawyers are (or are not) “post-Zionists”, but I don’t think that’s relevant. I believe the position they articulate in the brief– and their willingness to submit this brief on behalf of these Gitmo detainees– are admirable, and worthy of note. Human lives and actions are not painted in stark black and white, you know. I would watch out for your own wellbeing if you are so easily susceptible to attacks of nausea?
    Salah, thanks for the news from the Human Rights Council, which I hadn’t seen. But I’d urge you, too, to be open to the idea that there are some Israelis who both (a) participate in their own system of political control and (b) strive to be people of conscience, in the way they see fit?

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