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Should the United States, seeking to recalibrate the balance between security and liberty in the "war on terror," emulate Israel in its treatment of Palestinian detainees?
That is the position that Guantanamo detainee lawyers Avi Stadler and John Chandler of Atlanta, and some others, have advocated. That people in U.S. custody could be held incommunicado for years without charges, and could be prosecuted or indefinitely detained on the basis of confessions extracted with torture is worse than a national disgrace. It is an assault on the foundations of the rule of law.
But Israel’s model for dealing with terrorism, while quite different from that of the U.S., is at least as shameful.
Long before the first suicide bombing by Palestinians in 1994, Israel had resorted to extrajudicial killings, home demolitions, deportations, curfews and other forms of collective punishment barred by international law.
Imprisonment has been one of the key strategies of Israeli control of the Palestinian population, and since 1967 more than half a million Palestinians were prosecuted through military courts that fall far short of international standards of due process.
Most convictions are based on coerced confessions, and for decades Israeli interrogation tactics have entailed the use of torture and ill-treatment. Tens of thousands more Palestinians were never prosecuted, but were instead held in administrative detention for months or years.
Israel had the ignominious distinction of being the first state to publicly and officially "legalize" torture. Adopting the recommendation of an Israeli commission of inquiry, in 1987 the government endorsed the euphemistically termed "moderate physical pressure," and tens of thousands of Palestinians suffered the consequences.
In 1999 the Israeli High Court prohibited the routine use of "moderate physical pressure." But the ruling left open a window for torture under "exceptional circumstances."
These tactics, many of which have been used by American interrogators against foreign prisoners, include painful shackling, stress position abuse, protracted sleep deprivation, temperature and sound manipulation, and various forms of degrading and humiliating treatment. In an interview with three Israeli interrogators published in the Tel Aviv newspaper Ma’ariv in July 2004, one said the General Security Service "uses every manipulation possible, up to shaking and beating."
About 10,000 Palestinians are imprisoned inside Israel and more than 800 are administratively detained. Their families in the West Bank and Gaza Strip are barred entry to Israel, so Palestinian detainees are, in that sense, as isolated as prisoners in Guantanamo. Just last week, the Israeli Supreme Court had to order one of the most notorious detention facilities to allow prisoners 24-hour access to toilets.
The Israeli military court system compares to the U.S. military tribunal system established for Guantanamo in ways that U.S. lawyers like Stadler and Chandler deplore.
In addition to the reliance on coercive interrogation to produce confessions and to justify continued detention, prisoners in Israeli custody can be held incommunicado for protracted periods, and lawyers face onerous obstacles in meeting with their clients.
While it is true that detainees are brought before an Israeli military judge at some point, this process is hardly impartial. Such hearings tend to be used to extend detention and often take place in interrogation facilities, not courts. Detainees are rarely represented by lawyers or apprised of their rights, including a right to complain about abuse or to assert innocence. Failure to assert innocence at this hearing can be used as evidence of guilt.
Any information, including hearsay and tortured accounts from other prisoners, can be used to convict or administratively detain Palestinians.
If we learn anything, then, from the Israeli experience, perhaps it should be that torture and arbitrary or indefinite detention exacerbate a conflict and endanger civilians.
Americans should be proud of the noble work that Guantanamo lawyers are doing to press for a restored commitment to the rule of law by the U.S. government. If these lawyers wish to identify an apt model from Israel, it is not the government or the military court system.
Rather it is the Israeli and Palestinian human rights communities who have been working for decades to establish respect for human rights and the rule of law.
LISA HAJJAR is associate professor and chair of the Law and Society Program at the University of California, Santa Barbara, and author of "Courting Conflict: The Israeli Military Court System in the West Bank and Gaza" (University of California Press, 2005).