¹ Posner, Richard, Not a Suicide Pact: The Constitution in A Time of National Emergency (2006)Google Scholar.

² Our discussion mainly addresses the factual reality, However, it should be kept in mind that there are significant differences in the legal reality as well. Most notably, Israel does not have a constitution. In addition, the legal arrangements regulating emergencies are different (For the American arrangements see U.S. Congressional Research Service. National Emergency Powers (Aug. 30, 2007) by Relyea, Harold C.. For the Israeli arrangements see sections 38-39 of Basic Law: The Govemment, 1780 L.S.I. 158 (5761-2001)Google Scholar (Isr.), English translation available at www.knesset.gov.il/laws/special/eng/basic14_eng.htm (last visited July 10, 2009); The Defense (Emergency) Regulations 5705-1945 (Takanot Hahaganah Sh'at Herum) 1945. See also proposal in The Israel Democracy Institute, Consitution by Consensus Sec. 186–87 (2007)Google Scholar, available at www.idi.org.il/sites/englis/ResearchAndPrograms/ConsititionalLaw/Pages/ConstitutionbyConsensus.aspx.

³ In the Text of Fatwa Urging Jihad Against Americans, Al Quds Al Arabi (London), Feb. 23, 1998Google Scholar, Bin Laden claimed that the United States had made “a clear declaration of war on God, his messenger, and Muslims” through its policies in the Islamic world. The fatwa made use of the principle of defensive jihad to argue that U.S. aggression made armed resistance and the targeting of American civilians and military personnel incumbent upon all Muslims. The statement also announced the formation of “The World Islamic Front for Jihad against the Jews and Crusaders.” The fatwa further argued that defensive jihad was necessary “in order to liberate the al-Aqsa Mosque [Jerusalem] and the holy mosque [Mecca] from their grip [the U.S. and Israel].” See Blanchard, Christopher M., Al Qaeda: Statements and Evolving Ideology (CRS Report for Congress) (November 2004)Google Scholar, available at http://www.fas.org/irp/crs/RS21973.pdf.

⁴ Posner, supra note 1, at 148. On page 9 Posner refers to the weight of concerns to rights, rather than to the weight of rights: “In times of danger, the weight of concerns for public safety increases relative to that of liberty concerns, and civil liberties are narrowed. In safer times, the balance shifts the other way and civil liberties are broadened.”

⁵ Posner, supra note 1, at 23.

⁶ Id. at 21, referring to reluctance to acknowledge error, to undermine the stability of law, to invite challenges to other decisions, and to reveal the fact that courts are engaged in “legislative judgments.”

⁷ See in this issue, Posner, Richard A.. Précis, National Security and Constitutional Law. 42 Isr. L. Rev. 217, 221 (2009)Google Scholar [hereinafter Posner, Précis]. However, eventually Posner does restrict his discussion to terrorism “‘to simplify the discussion” (id.).

⁸ One may further wonder: should human rights be extensively violated in order to prevent the negligent revealing of secret information as well? Should civil liberties be gravely infringed upon for the purpose of preventing mild harms to national security, such as indicating whether the enemy's missiles have hit their target?

⁹ Posner, supra note 1, at 32.

¹⁰ HCJ 680/88 Shnitzer v. The Army Censor [1989] IsrSC 42(4) 617Google Scholar, see especially paras. 15-17 of Judge's decision.

¹¹ See infra Section IV(F), “Use of Torture is Never Temporary.”

¹² County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

¹³ Posner, Précis. supra note 7. at 221.

¹⁴ The line beyond which extreme prevention means are justified can hardly be drawn according to the terrorist nature of the activity, and the U.S. Supreme Court relference to general exceptional circumstances or emergencies theresore seems more appropriate.

¹⁵ This realization by the interrogee is an important characteristic of torture. See Parry, John T., Escalation and Necessity: Defining Torture at Home and Abroad, in Torture: A Collection 145, 153 (Levinson, Sanford ed., 2004)Google Scholar.

¹⁶ Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter CAT]; Universal Declaration of Human Rights, art. 5, G.A. Res. 217A (III), U.N. Doc A/810 at 71 (1948); International Covenant on Civil and Political Rights, arts. 7 & 10 (1), Dec. 16, 1966, 999 U.N.T.S. 171.

¹⁷ Id. According to Article 2(3) of CAT (supra note 16), “an order from a superior officer or a public authority may not be invoked as a justification of torture”; and according to Article 4, “each State Party shall ensure that all acts of torture are offences under its criminal law.”

¹⁸ Posner, supra note 1, at 12.

¹⁹ Id. at 155.

²⁰ As Posner does not develop this point, we do not discuss it here. However, imposing civil liability cannot solve the problems created by exemption from criminal liability: it might create confusion as to the state's evaluation of the conduct; and it might even create the impression that the violated rights of those suspected in terrorism are simply not important enough to be protected under criminal law, though they may be protected under civil law.

²¹ Except when imposing the, highly controversial, death penalty. See Posner's reference to the death penalty, aimed at justifying use of torture (supra note 1, at 82).

²² Id. at 81.

²³ See Kremnitzer, Mordechai & Segev, Re'em, The Legality of Interiagational Torture: A Question of proper Authorization or A Substantive Moral Issue?, 34 Isr. L. Rev. 509, 522 (2000)Google Scholar:

It might be justified to confer upon intelligence authorities, whose aim is to prevent offences, somewhat more latitude (for example, concerning the limits of using deceit or other investigation tricks) in comparison with that given to the police who are mainly responsible for detecting offenders after the prohibited act has been committed.

²⁴ Deprivation of life in a death sentence is, as far as we are concerned, illegitimate.

²⁵ Israeli Government Press Office, Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity 75 (1987)Google Scholar, reprinted in 23 Isr. L. Rev. 146 (1989)CrossRefGoogle Scholar [hereinafter Landau Commission Report].

²⁶ CrC (Jer) 775/04 The State of Israel v. Amru Abed El Aziz [Dec. 29, 2005] (not published) (Judge Noam wrote a dissenting opinion referring to the unreliability of the statements that were made following an intensive interrogation).

²⁷ Kremnitzer, Mordechai, Terrorism and Democracy, and The Case of Israel, 28 Hamishpat 14, 19–20 (2008)Google Scholar [in Hebrew].

²⁸ Posner, Précis, supra note 7, at 220.

²⁹ Kremnitzer, Mordechai & Segev, Re'em, Using Force During Investigations by the General Security Service—The Lesser Evil?, 4 Mishpat Umimshal 667. 708 (1998)Google Scholar [in Hebrew] [hereinafter Kremnitzer & Segev, Using Force].

³⁰ Parry, supra note 15, at 152.

³¹ Kremnitzer & Segev, Using Force, supra note 29, at 724-25. See also Parry, supra note 15, at 153-54. Parry suggests that this escalation is part of the definition of torture, as it is “another way of describing the total power of the torturer and the corresponding powerlessness of the victim. Indeed, the victim's knowledge of the torturer's ability to escalate the pain at will is an important component of torture's dominating, world-destroying capacity.” (Id. at 153).

³² See, e.g., Peters, Edware, Torture (1985)Google Scholar, citing a colonial civil servant: “There is a great deal of laziness in it. It is far pleasanter to sit comfortably in the shade rubbing red pepper into a poor devil's eyes than to go about in the sun hunting up evidence.”

³³ On the history of torture see Ruthven, Malise, Torture—The Grand Conspiracy (1978)Google Scholar; Peters, supra note 32; Rémy, Alec Mellor, La Torture (1949)Google Scholar; Thomasius, Christian, Die Folter, Über, Untersuchungen Zur Geschichte der Folter (1960)Google Scholar; Schmidt, Erhard, Einfuhrung in Die Geschichte der Deutschen Strafrechtspflege (1965)Google Scholar; Langbein, John H., Torture and the Law of Proof (1976)Google Scholar; Helbing, Franz, Torture (1973)Google Scholar; Holzhauer, Heinz, Rechtsgeschichte der Folter; in Amnesty International (1976)Google Scholar.

³⁴ Kremnitzer & Segev, Using Force, supra note 29, at 682.

³⁵ See CrC (Jer) 576/91 The State of Israel v. Shimon [July 13, 1995] (not published); CrA 6702/95 Trudi v. The State of Israel [1997] IsrSC 51(4) 607Google Scholar. For an analysis of this case see Kremnitzer, Mordechai & Shapiro-Etinger, Keren, Law and Politics, 8 Plilim 195 (2000)Google Scholar [in Hebrew].

³⁶ Parry, supra note 15, at 158.

In the prison context, torture is a form of cruel and unusual punishment under the Eighth Amendment. Within this framework, reports frequently arise of brutality that clearly amounts to cruel, inhuman, and degrading treatment and sometimes rises to the level of torture. Recent examples include the Area Two scandal in Chicago, the Rampart scandal in Los Angeles, and the torture of Abner Louima by New York Police. Id. at 156.

³⁷ Posner writes: “Serial killing is not terrorism, but it is such a serious crime that clues to it picked up in national security surveillance should be communicated to law enforcement authorities” (Posner, supra note 1, at 99).

³⁸ See Posner, Richard A., Torture, Terrorism and Interrogation, in Torture: A Collection, supra note 15, at 291, 293Google Scholar.

³⁹ Posner, Précis, supra note 7, at 218.

⁴⁰ See id.

⁴¹ See id. at 220, where Posner writes:

But judges feel that they understand civil liberties. This feeling is connected to my earlier distinction between constitutional rights and constitutional values. Judges think they understand rights, and the rights are rights to liberty rather than to physical security. I think they are often wrong … that they imbue the well-known constitutional rights with an almost supernatural significance…

⁴² Kremnitzer, Mordechai, Levanon, Liat, Freedom of Speech in President Barak's Judgments, Mishpatim (August 2008)Google Scholar [in Hebrew].

⁴³ Posner, Précis, supra note 7, at 221.

⁴⁴ In Israel, this categorization affects the choice of a balancing method: two clashing rights would be balanced differently from a right and a value that clash. But as we have already claimed, none of the balancing methods categorically favors either rights or values. See Kremnitzer & Levanon, supra note 42.

⁴⁵ Posner, Précis, supra note 7, at 218.

⁴⁶ See especially Korematsu v. United States, 323 U.S. 214 (1944)Google Scholar (discussing the conviction of an American citizen of Japanese origin who was convicted of disobeying Executive Order 6066 that required Japanese-Americans in Western United States to be excluded from a described West Coast military area, and to present himself at a detention camp. In a 6-3 decision, the Court sided with the government, ruling that the exclusion order was constitutional). In 1984, in Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984), the U.S. District Court for the Northern District of California granted Korematsu's coram nobis writ and overturned his original conviction. However, this decision was based merely on the government's refrain from presenting the court with all the relevant information it had prior to issuing the order.

⁴⁷ HCJ 5973/92 The Association for Civil Rights in Israel v. The Minister of Defense [1993] IsrSC 47(1) 267Google Scholar.

⁴⁸ HCJ 7015/02 Ajouri v. The IDF Commander in the West Bank [2002] IsrSC 56(6) 352Google Scholar.

⁴⁹ The practice of demolition of houses occurred from 1967 to 2005. See, e.g., HCJ 8262/03 Abed Al Qader Abu Salim v. IDF Commander in the West Bank [2003] IsrSC 54(6) 569Google Scholar (demolition of the house of a suicide bomber who was killed during his attack).

⁵⁰ Posner, Précis, supra note 7, at 219.

⁵¹ Id.

⁵² In the context of torture, the Court's approach has changed only in the fairly recent tome judgment: HCJ 5100/94 The Public Committee against Torture in Israel v. The State of Israel [1999] IsrSC 53(4) 817Google Scholar.

⁵³ See Kremnitzer, & Segev, , The Legality of Interrogational Torture, supra note 23, at 511–12Google Scholar.

⁵⁴ See id., at 512-13.

⁵⁵ Kremnitzer & Segev, Using Force, supra note 29, at 678-79.

⁵⁶ See infra p. 268 discussing Bus 300 affair.

⁵⁷ Posner, , Torture, Terrorism and Interrogation, supra note 38, at 296Google Scholar.

⁵⁸ Even though appeals are not discussed ex parte, most of the material the prosecution presents is confidential, as explained above.

⁵⁹ See The Public Committee against Torture in Israel v. The State of Israel, supra note 52, paras. 23-32, 36-38, where the Court clarified that torture was not permitted in advance (though it may be excused ex post facto).

⁶⁰ See Kremnitzer, & Segev, , The Legality of Interrogational Torture, supra note 23, at 515Google Scholar. Posner's estimation that in the case of torture “a court may deem the defendant's violation unarguable” (Posner, supra note 1, at 155) is therefore true only on the surface of things. A court does not have to find the violation arguable in order to dismiss the accused.

⁶¹ The Landau Committee referred to such a reality as mere hypocrisy. See Landau Commission Report, supra note 25, at 146, 183.

⁶² Posner, supra note 1, at 85. Seemingly, such hypocrisy also characterizes Posner's reference to rendition: “The ‘rendition’ of foreigners captured abroad to nations that may practice torture, though a rather transparent evasion of the torture taboo, arouses less indignation” (id. at 84). Rendition is prohibited by CAT, supra note 16, art. 3.

⁶³ The Public Committee against Torture in Israel v. The State of Israel, supra note 52. According to this decision, torture cannot be permitted in advance. In some extreme circumstances the defense of necessity may exempt defendants from liability (id. paras. 23-32, 36-38).

⁶⁴ This is so even if the defense of necessity is understood as a defense of lesser evils (and this is not necessarily so). See Krermnitzer & Segev, Using Force, supra note 29, at 723-26.

⁶⁵ Shue, Henry, Torture in Dreamland: Disposing of the Ticking Bomb, 37 Case W. Res. j. Int'l L. 231 (2006)Google Scholar

⁶⁶ Kremnitzer, & Segev, , The Legaliy of Interrogational Torture, supra note 23, at 549Google Scholar.

⁶⁷ Id. at 550. See also Shue, supra note 65.

⁶⁸ The Public Committee against Torture in Israel v. The State of Israel, supra note 52, para. 34. For criticism, see Kremnitzer, & Segev, , The Legality of Interrogational Torture, supra note 23, at 524Google Scholar.

⁶⁹ Kremnitzer & Segev, Using Force supra note 29, at 718.

⁷⁰ The Landau Commission Report, supra note 25, at 48-50.

⁷¹ Kremnitzer & Segev, Using Force, supra note 29, at 714-15.

⁷² Posner, supra note 1, at 81.

⁷³ Id. at 294: “If there is only a small probability that a terrorist is at large with a nuclear bomb or plague germs, the fact that, should the risk materialize, thousands or millions of people will die becomes a compelling argument for torture …”

⁷⁴ Posner, supra note 1, at 44. See also Posner, Précis, supra note 7, at 219:

New national security measures, or the enhancement of old ones, are adopted usually in times of felt emergency, and are relaxed when the emergency passes or its gravity diminished or is reassessed downward. The curtailment of liberty may be excessive at first … but the excess is temporary, and so the costs of overreaction to perceived threats are truncated;

and claiming that “[t]he idea that a nation that curtails civil liberties embarks on a slippery slope that ends in tyranny is not well supported historically.” Id. at 219.

⁷⁵ Posner, Précis, supra note 7, at 220.

⁷⁶ Id. at 219: “Obviously that is a process less likely to operate in the Israeli context, which appears to be one of permanent emergency.”

⁷⁷ See, e.g., HCJ 769/02 The Public Committee against Torture in Israel v. The Government of Israel [Dec. 14, 2006] (unpublished), para. 16.

⁷⁸ See Darby, John. Conflict in Northern Ireland: A Background Essay. in Facets of the Conflict in Northern Ireland (Dunn, Seamus ed., 1995)Google Scholar.

⁷⁹ In these respects, terrorism is different from the Civil War, World War II. or the Cold War to which Posner refers in order to demonstrate the temporariness of emergencies. See Posner, supra note 1, at 3.

⁸⁰ The exclusion orders were rescinded only on January 2, 1945. See Robinson, Greg, By Order of the President: FDR and the Internment of Japanese Americans 230 (2001)Google Scholar.

⁸¹ Kremnitzer & Segev, Using Force, supra note 29, at 677-71.

⁸² Kremnitzer, & Segev, , The Legality of Interrogational Torture, supra note 23, at 530–31Google Scholar; Kremnitzer, supra note 27, at 23.

⁸³ Posner, Précis, supra note 7, at 219.

⁸⁴ Id.

⁸⁵ Posner, supra note 1, at 83.

⁸⁶ Kremnitzer, Mordechai, The Landau Commission Report—Was the Securiw Service Subordinated to the Law, or the Law to the “Needs” of the Security, 23 Isr. L. Rev. 216 (1989)CrossRefGoogle Scholar [hereinafter Kremnitzer, The Landau Commission Report]: Kremnitzer & Segev. Using Force, supra note 29; Kremnitzer & Segev, The Legality of Interrogational Torture, supra note 23.

⁸⁷ See Kremnitzer, , The Landau Commission Report, supra note 86, at 263Google Scholar and references therein.

⁸⁸ Posner, supra note 1, at 81.

⁸⁹ Posner, Précis, supra note 7, at 222.

⁹⁰ For a possible connection between extreme interrogation means and death of detainees in Israel, see www.acri.org.il/Story.aspx?id=170.

⁹¹ Kremnitzer & Segev, Using Force, supra note 29, at 680-82. See also Statman, Daniel, The Absoluteness of the Prohibition against Torture, 4 Mishpat U'mimshal 161, 179 (1997)Google Scholar [in Hebrew].

⁹² Kremnitzer & Segev, Using Force, supra note 29, at 708.

⁹³ Waldron, Jeremy, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1720 (2005)Google Scholar.

⁹⁴ Posner, supra note 1, at 83.

⁹⁵ HCJ 428/86 Barzilai v. The Government of Israel [2001] IsrSC 40(3) 505Google Scholar.

⁹⁶ Kremnitzer & Segev, Using Force, supra note 29, at 707.

⁹⁷ Kremnitzer, & Segev, , The Legality of Interrogational Torture, supra note 23, at 540Google Scholar. See also Kremnitzer & Segev, Using Force, supra note 29, at 702-05.

⁹⁸ Cf. Kremnitzer & Segev, Using Force, supra note 29, at 702-05.

⁹⁹ Posner, supra note 1, at 153-55.

¹⁰⁰ Id. at 154.

¹⁰¹ Id.

¹⁰² The option of a narrow and well-defined authorization, which does not have some of the disadvantages of a general authorization, is out of the question due to the full prohibition on torture in international law. This is probably why Posner proposes a practical permission to torture, disguised as civil disobedience.

¹⁰³ Posner, supra note 1, at 153, asserting that “[t]he combination of an over inclusive rule with prosecutorial discretion… may be superior in many situations both to a standard and to a rule that is festooned with exceptions.” Oren Gross, whose proposal is similar to Posner's, suggests that:

the acting official may be called to answer for her actions and make legal and political amends therefore… Alternatively, the people may approve the actions and ratify them. Such ratification can come in many forms… for example, legal modes of ratification may include exercising prosecutorial discretion not to bring criminal charges against persons accused of using torture, jury nullification where criminal charges are brought, executive pardoning or clemency where criminal proceedings result in convictions, or governmental indemnification of state agents who are found liable for damages to persons who were tortured.

See Gross, Oren, The Prohibition on Torture and the Limits of Law, in Torture: A Collection, supra note 15, at 229, 241Google Scholar [hereinafter Gross, The Prohibition on Torture]. See also Gross, Oren, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional, 112 Yale L. J. 1011 (2003)CrossRefGoogle Scholar.

According to Gross, truly exceptional cases may give rise to official disobedience: public officials may step outside the legal framework, that is, act extralegally. See Gross, , The Prohibition on Torture, supra, at 231Google Scholar. Gross' proposal, as opposed to that by Posner, notes that the interrogators would be willing to accept the legal ramifications of their actions, and there would be a public debate regarding their conduct and the possibility of ex-post ratification. This ratification, so he stresses, “functions as an ex-post excuse, rather than justification, of a particular conduct” (id. at 247). We do not intend to discuss Gross's proposal in detail in this Article, but we refer to it as far as it is relevant for understanding Posner's proposal.

¹⁰⁴ Posner, supra note 1, at 153.

¹⁰⁵ Gross, The Prohibition on Torture, supra note 103. See also Posner, supra note 1. at 155, referring to the political price of breaking the law.

¹⁰⁶ Gross thinks that “[g]oing completely outside the law in appropriate cases preserves, rather than undermines, the rule of law in a way that bending the law to accommodate to catastrophes does not” (Gross, , The Prohibition on Torture, supra note 103. at 240Google Scholar). However, Gross's assumption is that the law would have to be bent, as there are indeed situations that justify use of torture. More importantly, Gross does not explain how using an extra legal defense is better in this respect from using the legal defense of necessity.

¹⁰⁷ Posner's assertion that in some sense “rules are made to be broken” (Posner, supra note 1, at 153) reflects such an attitude.

¹⁰⁸ Posner refers to the extralegal defense as a justificatory defense. Posner, supra note 1, at 12.

¹⁰⁹ Gross, , The Prohibition on Torture, supra note 103, at 243Google Scholar, citing Dodge, Guy Howard: Benjamin Constant'S Philosophy of Liberalism: A Study in Politics and Religion 101 (1980)Google Scholar, quoting Benjamin Constant.

¹¹⁰ Gross, , The Prohibition on Torture, supra note 103, at 246–47Google Scholar.

¹¹¹ Posner, supra note 1. at 14.

¹¹² Posner notes: “while the term [civil disobedience] is usually applied to private individuals who deem it their moral duty to disobey positive law, there is no reason why it cannot also be used of public officials who do the same thing” (id. at 85). Perhaps despite referring to civil disobedience as a duty of Government. Posner actually regards the torturing interrogators as acting in their capacity as civilians rather than as state officials. As private people. they disobey the general rule prohibiting torture. However, this understanding seems artificial (it is hard to see how when suspending habeas corpus Lincoln was acting as a private citizen rather than as the President of the United States). See id. at 85, where Posner writes:

Lincoln was engaged in civil disobedience when he suspended habeas corpus during the Civil War on his own authority and when he defied an order by the chief justice of the United States granting habeas corpus to a Confederate sympathizer in the face of the suspension… But he was right to disobey the law in his situation as Gandhi and Martin Luther King Jr. were right to do so in their situations.

Surely, Posner does not suggest leaving the treatment of what he considers major risks to national security in the hands of private people, discharging the state from its duty to protect its citizens.

¹¹³ Rawls, John, The Justification of Civil Disobedience, in Civil Disobedience: Theory and Practice 240, 245 (Bedau, Hugo Adam ed., 1969)Google Scholar. Rawls follows Bedau's, H. A. definition in his On Civil Disobedience, 58 J. Phil. 653–61 (1961)CrossRefGoogle Scholar. See also Tweed, Harrison, Segal, Bernard G., & Packer, Herbert L. Civil Rights and Disobedience to Law, in Civil Disobedience: Theory and Practice. supra at 90, 92Google Scholar, referring to a breach of law which the actor believes in good faith to be invalid according to higher principles, and which she is determined to challenge.

¹¹⁴ Gandhi, Mohandas Karamchand, Non-violent Resistance 175 (1961)Google Scholar (cited in Taylor, infra note 116, at 101).

¹¹⁵ Rawls, supra note 113, at 247.

¹¹⁶ Tweed, Segal, & Packer, supra note 113, at 92. See also Taylor, William L., Civil Disobedience: Observations on the Strategies of Protest, in Civil Disobedience: Theory and Practice, supra note 113, at 98, 99Google Scholar. The question whether a violation of a law believed to be invalid according to constitutional principles is an act of civil disobedience is a more controversial one.

¹¹⁷ Rawls, supra note 113. at 247.

¹¹⁸ Id.

¹¹⁹ Even if acts of torture were indeed acts of civil disobedience, they would not be what Rawls refers to as, justified acts of civil disobedience (Rawls, supra note 113, at 248-52). Most importantly, they are not acted upon as a last resort, after the “protesting minority” has been subject to injustice over an extended period of time, and the normal political appeal to the majority has failed.