This issue of the Israel Law Review is devoted to a written academic symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service (GSS) Regarding Hostile Terrorist Activity (the “Landau Report”). The Commission was established in May, 1987 to investigate GSS interrogation practices and to reach legal conclusions concerning them. The need to establish the Commission followed revelations of activity within the GSS which was prima facie unlawful.

The Report discusses a dilemma fundamental to any democratic state forced to cope with hostile terrorist activity (HTA): the dilemma “between the vital need to preserve the very existence of the State and its citizens, and [the need] to maintain its character as a law-abiding State which believes in basic moral principles” (R., 77). The only solution to that dilemma, according to the Report, requires that the “law itself … ensure a proper framework for the activity of the GSS regarding Hostile Terrorist Activity” (R., 79).

1.1 On 31 May 1987, The Government of Israel resolved:

“That the matter of the GSS methods of interrogation regarding Hostile Terrorist Activity (HTA) is – in the wake of Criminal Appeal 124/87 (Nafsu) – a subject of vital public importance at this time which requires elucidation.”

Therefore the Government decided:

“To establish a Commission of Inquiry, in accordance with Sec. 1 of the Commissions of Inquiry Law, 1968, regarding the investigation methods and procedures of the GSS on HTA, and the giving of testimony in court in connection with these investigations.

“The Commission will make recommendations and proposals, as it sees fit, also regarding the appropriate methods and procedures concerning these investigations in the future, while taking into account the unique needs of the struggle against Hostile Terrorist Activity.”

It is a conundrum that has long intrigued philosophers, novelists, lawyers, and ordinary citizens: a captured terrorist knows the location of a ticking bomb that threatens hundreds of innocent lives; the only way to prevent the mass murder is to torture the terrorist into disclosing the bomb's location; there is no time for reflection; a decision must be made. Does the noble end of saving innocent lives justify the ignoble means of employing torture?

We know, of course, what all governments would actually do under these conditions of tragic choice: they (or more precisely, some flack-catching underling) would torture (with the implicit approval of the powers-that-be). But could the government justify it? Would they write a law expressly authorizing such means? Or would they choose the “way … of the hypocrites: they declare that they abide by the rule of law, but turn a blind eye to what goes on beneath the surface” (R.,78).

1. It is not too late, even now, to welcome the appointment of the statutory commission of inquiry, headed by former President of the Supreme Court Moshe Landau, to examine the methods employed by the General Security Service (GSS) in investigating “hostile terrorist activity” (HTA). The Landau Commission Report treats a broad spectrum of subjects, and the ordinary reader, such as myself, must bear in mind that he encounters only the first part of the Report, while there is also a second, confidential part which doubtless comprises discussions, conclusions and recommendations that cast additional light upon the first part and make for its fuller understanding.

Even Part One of the Report, with its references to Part Two, constitutes in and of itself a major contribution to the effort to crystallize clear legal models of conduct for the special governmental organs involved in the sensitive area of the investigation of HTA cases. Raising the subject on the public agenda, the revelation of the facts involved, and examination of the attendant problems by a commission of such standing constitute an important step toward finding appropriate solutions. Although the Commission's approach is open to dispute on some points, dispute precedes all progress, at least the dispute between the new course and its predecessor.

The principal significance of the Landau Commission Report lies in its conclusion that, under the provisions of the necessity defence, the exertion of a moderate measure of physical pressure is both justifiable and permissible in the interrogation of persons suspected of hostile terrorist activity (HTA). This conclusion extends both forward to the future and backward to the past. For the future, it licenses the employment of physical pressure in such investigations; as to the past, it lends significant support to another of the Commission's conclusions, that no proceedings be instituted against persons who were found by the Commission to bear prima facie responsibility for serious criminal offences (i.e., perjury at the very least). In my opinion, the Commission's central conclusion and its implications are unjustified. It is based upon factual findings and evaluative judgments which are, as I shall attempt to demonstrate, problematic.

Before embarking, however, I should like to sketch a synoptic view of the Report for the reader, which will then enable me to expand upon the connection between the Commission's factual and evaluative findings and its normative conclusions. Regarding the facts, the Commission determined that: 1) GSS interrogators had systematically employed physical pressure on HTA suspects; and 2) interrogators had lied about this fact to the courts. The Commission's normative conclusions were that it is permissible to employ physical pressure in HTA interrogations, but forbidden to lie to the court.

This article explores the questions raised by the issuance of the Landau Commission Report: What is the legal and moral status of torture of terrorist suspects and others, when that torture is engaged in by the Investigation Unit of the General Security Service (GSS) of the State of Israel for the purpose of extracting information potentially saving many Israeli lives? More specifically, was the Commission right in its retrospective conclusion that “the methods of interrogation … employed [in the past by the GSS] … are largely to be defended, both morally and legally …” (R., 4)? Was the Commission right in its prospective conclusion that no new legislation is needed to deal with the methods of interrogation of the GSS because “the GSS can turn a new leaf … within the framework of the existing law …” (R., 82)?

The Report of the Landau Commission puts a painful question for public debate: can it ever be morally acceptable in a liberal democracy for the state to use cruel measures against a person to compel him to reveal information needed to prevent grave harms, such as the loss of lives? The question, of course, belongs to a class of questions that has baffled and divided people for generations. Are some actions inherently and intrinsically wrong, so that they may not be redeemed by the net good consequences they produce on balance? Even if this is the case in general, can it be true regardless of the enormity of the consequences? Battle lines in moral philosophy are drawn in terms of how these questions are answered. For consequentialists the morality of all actions is solely determined by their consequences, near and long term. For deontologists the morality of all actions is always determined, at least in part, by their intrinsic wrongness, so that if they are wrong they are not made right by their desirable consequences. Each side has, so it seems, an unanswerable objection to the position of the other. Deontologists ask: then you mean you are ready to declare, for example, that punishment of innocent persons may be morally justified if it is necessary to prevent crime? And consequentialists (without answering) ask in turn: then you mean that even if the life of thousands and the preservation of the basic freedoms of a democratic community depend on it, you would regard it as morally prohibited to use any force against a single innocent person?

These questions are among the hardest of all hard questions. But they become even harder when they are asked in the context of a public debate over how a government should act in some immediate crisis.

The Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity dealt with the investigation methods which were practiced by the General Security Service (GSS) and which impinged on the rights of suspects.

Suspects under interrogation have a number of rights: the right not to be physically or mentally injured or otherwise mistreated, the privilege against self-incrimination and a number of ancillary procedural rights, such as the right to consult a lawyer. The Commission concluded that the interests of combatting terrorism justify the suspension of these rights in whole or in part. It thought that the privilege against self-incrimination need not be accorded to terrorist suspects and, furthermore, that psychological and physical forms of pressure may be exerted on suspects in order to overcome their resistance to interrogation. The Commission accepted that a civilised criminal procedure has to reflect minimal standards of respect for the integrity of individuals. However, it found justification for the departure from normal procedures in an analogy to the doctrines of necessity and self-defence.

The State of Israel came into being forty years ago. Its Declaration of Independence proclaimed that the State “shall guarantee complete equal social and political rights to all its citizens without regard to religion, race or sex”. At the time there was a war being waged for Israel's independence, a war which is not yet over. The threat to Israel's security, both from within and without, is still very real. The struggle for security has been going on, unabated, for forty years, and it exacts a price. Among other things, it exacts a price in human rights. Freedom of expression, for example, is subject to military censorship. As a British judge once remarked, war is not waged in accord with the principles of the Magna Carta.