The great virtue of the Landau Commission Report is that it raised to the surface an
important conundrum that few democracies ever openly confront. The vice of the report is that it
purported to resolve that conundrum by reference to a legal doctrine that is essentially lawless
and undemocratic.
In 1999 the Supreme Court of Israel confronted the issues raised in the Landau
Commission Report. The case, in essence, posed the following question: If an arrested terrorist
knew the location of a ticking time bomb that was about to explode in a busy intersection but
refused to disclose its location, would it be proper to torture the terrorist in order to prevent the
bombing and save dozens of lives? The court answered “no.” As the president of the Supreme
Court, Aharon Barak, put it: "Although a democracy must often fight with one hand tied behind
its back, it nevertheless has the upper hand. " It specifically outlawed many of the non-lethal
techniques – “torture lite” – currently being employed by American authorities in their rough
interrogations of captured terrorist suspects.
The Supreme Court of Israel left the security services a tiny window of opportunity in
extreme cases. Borrowing from the Landau Commission, it cited the traditional common-law
defense of necessity, and it left open the possibility that a member of the security service who
honestly believed that rough interrogation was the only means available to save lives in
imminent danger could raise this defense. This leaves each individual member of the security
services in the position of having to guess how a court would ultimately resolve his case. That is
unfair to such investigators. It would have been far better, in my view, had the court required any
investigator who believed that torture was necessary in order to save lives to apply to a judge,
when feasible. The judge would then be in a position either to authorize or refuse to authorize a