In this contentious election season, it might seem a reason to celebrate that something unites people from across the political spectrum, from the far Left to the Right. Yet the Supreme Court decision from last Thursday in the case of Amiram Ben-Uliel, while indeed eliciting a unified response, a loud condemnation is anything but a cause to celebrate. The question in the appeal was simple: is a confession given 36 hours following seven hours of torture, which is admissible in an Israeli court? In Israeli law, a confession must be given freely and of the person’s own volition, and the appellant argued that a post-torture confession is coerced. To the shock and horror of most people, the court upheld the lower court’s decision to accept the confession.
The left-wing Israeli NGO The Public Committee Against Torture in Israel (PCATI) issued a statement calling this a monumental error and that despite the severity of the crime, the court should have thrown out such a confession. The right-wing legal aid organization Honenu in their statement said, “Everyone who reads the ruling will notice that it is rife with agenda and hate. The Supreme Court justices have forgotten what law and evidence are.”
In general, the heavy reliance on confessions in a criminal justice system is problematic, and indeed Jewish law views confessions as inadmissible in criminal proceedings. There are several reasons for an aversion to accepting confessions – a very important one related to civil rights, one that should concern every citizen, is highlighted in this case. If courts accept confessions, and in Israel they are unfortunately called the “queen of evidence,” there is a strong incentive for the investigating authority, be it the police or in this case the General Security Services (GSS; Shabak), to do everything in their power to extract a confession. And indeed, that is what happened in this case. The political establishment had determined literally from the day of the murder that it had been carried out by hilltop youth and were determined to pin it on them. After five full months, they finally arrested a suspect.
He was taken to a Shabak dungeon, where he was interrogated for 17 full days without seeing a lawyer or anyone other than his captors. After failing to elicit a peep from him, the Shabak received authority to torture him. So, while most of the citizens of the State of Israel slept peacefully on the night of December 17, 2015, our emissaries were extracting a confession via torture between 11:40 p.m. and 7 a.m.
What happened next should not be a surprise. As former US Supreme Court justice William Douglas wrote: “Every person has a breaking point, beyond which he will, though innocent, confess to any crime in order to get respite from pain.” Not unexpectedly, despite remaining silent for 17 days, shortly after the torture commenced, Ben-Uliel confessed, and was ultimately convicted based on his later confession that was repeated a mere 36 hours after the torture.
While torture is generally condemned, it is allowed in Israel in the limited situation of a ticking bomb. So why was it used in this case to solve a crime? The Supreme Court decision explains that the GSS explained that they had reason to believe that Amiram was a member of a terrorist organization and that the torture was in order to prevent future terrorist activities. And, they said, if information about a past event is uncovered inter alia, such information may be utilized.
FAR BE it from me to accuse the Shabak of lying, but two paragraphs earlier in the decision, the prosecution is quoted as explaining that the decision to initiate torture was based on the results of the interrogation the previous day of the minor co-defendant that had raised the possibility that Amiram was involved in the Duma firebombing. That explanation makes a lot more sense given the delay of 17 days and given his ultimate acquittal in membership in a terror organization. This is not the only suspicious quote from the Shabak in this trial. Could it be that this was not a case of a ticking bomb but rather that the time was ticking for the Shabak until the suspect would see a lawyer?
Is the law objective?
I would like to believe that law is objective. Yet, in their decision, the court put a great deal of emphasis on again convincing themselves and the reader of Amiram’s guilt. Yet, as the Committee Against Torture noted, that should be irrelevant. The question before the court was the admissibility of a confession given following torture, irrespective of guilt or innocence and irrespective of the severity of the crime. And such a confession should be illicit.
One of their oft-repeated lines, similar to the ruling in the lower court, is that the judges watched the video of the confession 36 hours after the confession and determined for themselves that Amiram was calm, acting freely and not influenced by the torture. Anyone with an ounce of common sense realizes that is absurd. But more so, if they had bothered consulting with an expert, a psychologist, they would have learned about the common symptom of Post Traumatic Stress Disorder (PTSD), which Amiram is no doubt suffering from, known as dissociation, which causes the sufferer to appear outwardly calm yet be suffering and tormented inside. It is truly a shame that the judges of the highest court do not seek expert opinions. Nor did they deem it necessary to address the vast scientific literature about false confessions.
The implications of this decision cannot be overstated: it sets a huge and undesirable precedent. It is hard to imagine that the judges do not appreciate the precedent, but I am not sure what gives them the benefit of the doubt that they are either oblivious to the ramifications or that they realize that they have set Israel on a course to a third world state where police have unchecked powers and yet did so anyhow. This decision, which bucks international norms, essentially tells the Shabak (and police) that they are free to torture in our name and not only will they not be prosecuted, but the fruits of their labor will be accepted.
The Torah portion last week enjoined Israel “Tzedek tzedek tirdof (Justice, justice shall you pursue)” (Deuteronomy 16:20). In some cases, those who pursue justice do so with such zeal that they utilize any and all means, even illegitimate ones, in order to achieve what they believe to be a just outcome. The Torah is clarifying that this is not the proper course. In this verse, the word “justice” is repeated to teach that just means must be utilized when pursuing justice. This decision is immoral and runs counter to logic, science and Israeli law, and is merely three more people continuing the work of the GSS in pursuing what they think is justice in an unjust manner.
To paraphrase the short, almost meaningless addition that Justice Amit appended to the long, detailed ruling of Justice Elron: the entire process of the arrest, torture, conviction and, finally, rejection of the appeal of Amiram requires a thorough introspection by the Israeli legal and criminal justice system. I am hugely embarrassed that my country is so lacking in basic rights and a fair justice system that the highest court in the land has essentially green-lighted the use of torture to extract a confession and then that confession can serve as the sole basis on which to convict.
The writer is a professor of neuroscience at Bar-Ilan University.