National Public Radio has covered in various reports the trial in Israel of Palestinian leader Marwan Barghouti, who has been charged with planning and ordering numerous terror attacks, and with heading the al-Aqsa Martyrs Brigades, which is on the United States list of Foreign Terrorist Organizations.
In NPR’s most recent report on the subject, reporter Peter Kenyon informed listeners that the Palestinian witnesses against Barghouti claimed in court that their confessions had been extracted under torture, but that under Israeli law the confessions were nonetheless admissible:
Palestinians convicted of terrorist crimes were called by the prosecution to implicate Barghouti. They recanted their confessions on the stand, saying they had been extracted under torture. Under Israeli law, however, the confessions stand as presented and Barghouti has offered no rebuttal. (Weekend Edition Sunday, Aug. 24, 2003)
While it is hardly unusual for people to claim during a trial that damaging admissions were made under duress, it is absolutely untrue that under Israeli law such claims are ignored, and in particular that confessions obtained through torture are admissible.
On the contrary, under Israeli criminal procedures when a person claims that his confession was extracted via torture, a “trial-within-a-trial” is immediately held (in Hebrew mishpat zuta) in which the prosecution must disprove that torture or other illegitimate means were used. If the prosecution is unable to disprove claims of torture the confession is thrown out. In addition, if it appears that other illegal means short of torture were used, the confession can be admitted, but only if the court finds that the interrogation did not prejudice the defendant’s free will. (See for example, The Right to a Fair Trial, D. Weissbrodt and R. Wolfrum, eds., Springer, 1997.)
In addition, it is worth noting that Israel actually offers more protections in this regard than does the United States. Thus, if a defendant in the US charges that a confession was extracted via torture, the defense must file a “motion to suppress,” leading to a hearing in which the defense must prove that the confession resulted from untoward means. That is, unlike in Israel, the presumption in the US is that torture was not used, and the burden of proof is on the defense. Moreover, in most states the motion to suppress must be filed before the trial, whereas in Israel there is no such restriction.
The bottom line – in extraordinarily difficult circumstances Israel has done a far better job of upholding the rule of law than NPR has done of upholding the rules of responsible journalism. The network should immediately correct Kenyon’s false claims.