What’s Going On



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Teacher’s Companion Notes – Text Study on Torture

Human Dignity and Self-Defense in Jewish Values

Assembled by Rabbi Melissa Weintraub

Director of Education and Organizing

Total teaching time 1.5-2 hours

Handouts to have on hand

• Text study – Human Dignity, Rodef, Torture

• “What’s Going On”

• The Jewish Statement in petition form

• Legislative update, MCA talking points, Sample letter to Senator

• Torture – quick facts

• 2 OpEds

PART ONE: WHAT’S GOING ON IN U.S. MILITARY DETENTION + Q&A (15-20 min.)

PART TWO: JEWISH LAW AND VALUES (1 – 1.5 hours)

PART THREE: WHAT I CAN DO (10 min.)

Goals:

• To demonstrate that Jewish values suggest a ban on torture

• To illuminate U.S.-sponsored torture and related policy

• To encourage Jews to join RHR-NA in opposing torture

PART ONE: WHAT’S GOING ON IN U.S. MILITARY DETENTION (15-20 min.)

Status of Torture in International Law

▪ Torture joins slavery as the practice most universally and unanimously condemned by international law and norm.

▪ The Geneva Conventions ban torture and cruel, inhuman, and degrading treatment as crime against humanity. These were intransgressible red lines of conduct drafted by the nations of the world in response to the atrocities our people endured in Nazi Germany that enshrined an international consensus, in the aftermath of the Holocaust, that the most extreme moral horrors and savage inhumanities must be universally prohibited even in time of war.

▪ Torture was designated foremost among the acts forbidden – a degree of brutality above which the civilized nations of the world determined to raise themselves once and for all. Torturing a prisoner of war at our mercy – not in the heat of the battlefield, but in the cool calculation of the interrogation room – was posited, along with slavery, as the ultimate assault on the integrity and dignity of the human person, created (in our Jewish language) in the image of God.

▪ Torture, slavery, and genocide are the three things that fall into a category of universal jurisdiction in international law – what’s called jus cogens – which basically means they are considered illegal even if a country declares them legal.

What is Torture?

The Convention Against Torture, to which the United States is a signatory, defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person.” Torture is generally distinguished from other forms of cruelty or sadism in terms of its official context: torture entails purposeful acts of harm inflicted by agents of the state on those in their custody in order to coerce, intimidate, or punish. Torture by definition consists of an assault upon one who is, at least at the moment, defenseless, one of the ways torture is distinct from killing on the battlefield.

Defining torture has become a vexed and politicized business in our country in the last five years. We have all heard the current U.S. administration claim that “we do not torture.” The administration has been able to make this claim in part by relying on new, narrowed definition of torture that attempt to drive a wedge between “torture” and what is termed in international law as C.I.D.— cruel, inhuman and degrading treatment.

Four important points about “definitions” and the status of torture in international law:

1) International precedent recognizes as torture the very techniques adopted in U.S. detention in Iraq, Afghanistan, and Guantanamo since 2001. The U.N. Committee against Torture – the body responsible for enforcing the Convention Against Torture, to which the U.S. is a party – has ruled that these methods – developed by the KGB, and used by the British in Northern Ireland and Israel in the West Bank, before being outlawed in both countries – produce pain and suffering severe enough to be designated torture.

2) Short-term and long-term studies of those subjected to these methods by the British in Northern Ireland suggest that such techniques produce excruciating pain and swelling, states of psychosis and mental disorientation that have a tendency to become permanent, and other potentially long-term physical and mental effects, including loss of motor coordination, blackouts, hallucinations, violent headaches, anxiety attacks, insomnia, chronic depression, and suicidal tendencies. In a study of a dozen men subjected to these techniques in Northern Ireland, most died before their 40th birthday, and were never again able to form functional familial or social relationships.

3) On the basis of these rulings and studies, Israel outlawed these techniques categorically in 1999, two years before America began authorizing them. In the attempt to balance legitimate security needs with commitment to morality and international law, Israel may well serve as a model for America on this issue.

You will get many more questions about Israel (eg. Did the decision have any impact? Did it leave any loophole for the ticking bomb case?) You may want to defer these questions, or you can answer them at the outset. More information on Israel below.[pic]

4) From the perspective of Jewish law, what matters is not whether these techniques are labeled “torture” or “cruel, inhuman and degrading treatment,” but rather the evidence that these are well-researched efforts to shatter the personalities of those who endure them.

• In 1956, for example, two psychiatric consultants to the Department of Defense produced a study of the effects of these very techniques – then employed by the KGB – on the human personality, describing them as inducing hallucinations and delirium, catatonic apathy, loss of self-control over bodily functions, and befuddled suggestibility to the point that suspects were unable to determine truth from falsehood.

• An official Army investigation of abuses at Guantanamo in 2005 acknowledged that forced nudity and other aforementioned degrading techniques are (I quote) “authorized approaches called ego down or 'futility,' which are used to make the interrogation subject question his sense of personal worth.”

• They are, in short, purposive efforts at dehumanization – attempts to penetrate to the core of a suspect’s personality in order to destroy his sense of self-respect. They are calculated attempts to turn the body and psyche against themselves, to force a body to become an accomplice in its own self-destruction and betrayal.

Summary of U.S. Abuses

1. Widespread interrogation methods in American detention in the last five years have included: beatings; forced nudity; painful shackling into “stress positions” for agonizing lengths of time; simulated drowning, called water-boarding (originally pioneered during the Inquisition).

2. At least 45 detainees have died in U.S. custody in confirmed or suspected homicides, several of them tortured to death. More than 83,000 people have been detained in U.S. custody in the last five years; approximately 15,000 remain.

3. Sexual Humiliation seems to be America’s unique innovation.

• Sexual abuse is ubiquitous, including much more than the more outlandish acts depicted in the photos from Abu Ghraib (posed fellatio, naked bodies dragged on leashes.)

• Guantanamo – female interrogators in thongs. Feb. 2005, Pentagon confirmed leaked accounts that female interrogators tried to "break" devout Muslim detainees through provocative sexual touching and suggestion— wearing skimpy clothing like miniskirts and lacy, thong underwear, making sexually explicit comments, and rubbing their bodies up against them.

• Feigned menstrual blood. One especially disturbing example, a female interrogator touched her breasts, rubbed them against a prisoner's back, and commented on his apparent erection. She then reached into her pants and removed what appeared to be red blood, but was in fact red ink, which she proceeded to smear on the prisoner's face, telling him she had cut off the water supply in his cell so he wouldn't be able to wash.

• Treatment of prisoners in American military detention centers seems uniquely tailored to inflict shame and humiliation on detainees by exploiting the perceived cultural sensitivities and sexual taboos of Muslim, Arab men. While American forces have employed a host of physically and psychologically cruel, inhuman, and degrading techniques, sexual humiliation seems staged to take advantage of perceived Arab vulnerability to public humiliation, particularly of a sexual sort.

Detention of innocents.

Less than 8% of current detainees are demonstrated to be al Qaeda fighters by the U.S. government. Of the remaining detainees, at least 40% have no definitive connection to al Qaeda or the Taliban.

As of 2003, the International Committee of the Red Cross estimated that between 70-90 percent of those held in Abu Ghraib were there "by mistake;" more recent official inquiries have dropped the estimate to two-thirds. At Guantánamo, official reports have estimated that 40 percent of detainees never belonged there. 85 percent of those captured at Bagram in Afghanistan have since been released without any charges or evidence of terror links.

Military Commissions Act

In Sept. 2006 a piece of legislation was rushed through Congress. The Military Commissions Act of 2006 repudiates a half-century of international and U.S. legal precedent. The Bill:

▪ Allows the President to decide on his own what abusive interrogations methods will be considered permissible;

▪ Allows his decision to remain secret

▪ Denies basic legal safeguards to detainees, including the historic right of habeas corpus – the most important and ancient of all checks on abuse and unlawful detention

▪ Retroactively immunizes interrogators from prosecution for torture

▪ Permits detainees to be subject to summary arrest and indefinite detention with no hope of appeal, including those thousands of miles from any battlefield who “support” hostilities in some broad and ill-defined way.

The New York Times editorial page broke from its characteristic composure to declare: “Americans of the future will know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy.” The Washington Post has called this issue the most important issue before our nation.

In Feb. 2007, Senator Dodd and Congressman Nadler introduced bills in the Senate and House, respectively, to roll back the unconstitutional provisions of the Military Commissions Act.

You can note that you will address current legislation at the end of the talk. See handouts for more information on the MCA, the Restore the Constitution Act, and faith-based talking points.

FAQs

1. Is torture still happening in Israel?

When teaching in the Jewish community, I generally choose to dramatize the Israeli Supreme Court’s heroic decision given the ongoing security threats Israel faces. I do this because:

1) Many members of mainstream Jewish communities are defensive about Israel’s human rights record in general, and Rabbis for Human Rights – as one of the organizations that holds Israel accountable for human rights abuses – in particular. Hearing that Israel has taken an exemplary stand against torture confirms torture’s wrongness and opens people to hearing about American abuses.

2) The decision really is inspiring – and concretizes all of the lofty principles of Jewish law around which this class is based.

However, I am including in your packet a recent disturbing article summarizing a new report from Btselem and Ha-Moked that suggests that Israel continues to use painful shackling, beatings, sleep deprivation and other methods in defiance of the ’99 decision.

You may choose to emphasize or minimize these findings, depending on your audience and personal judgment.

For a summary of the Btselem report, see:

The narrative I have generally presented is below.

In short - the ’99 decision had a dramatic impact, according to Human Rights Watch and Btselem.

a. Landau Commission: Between ’87 and ’99, Israel authorized “moderate physical pressure” under “exceptional” conditions. In 1987, a judicial commission of inquiry headed by former Supreme Court Justice Moshe Landau had reported that "moderate physical pressure" was defensible in cases in which an interrogator "committed an act that was immediately necessary" to save lives from grave harm.

b. As in other countries, the authorization and training of these techniques resulted in “torture creep.” Israeli human rights organizations monitored G.S.S. interrogations and concluded that some eighty-five percent of Palestinians who passed through interrogation were tortured during these years.

c. Human rights organizations questioned whether such an enormous percentage of detainees were indeed "ticking bombs." If those being tortured were all "ticking bombs," why did interrogators take shabbat off? "The lethal bomb ticks away during the week, ceases, miraculously, on the weekend, and begins to tick again when the interrogators return from their day of rest." (Btselem report, “Routine Torture”).

d. Israel discovered the hard way that any exception for interrogators would result in the routinization of torture. Therefore, the ’99 Israeli Supreme Court decision is absolute. The decision does not include any exceptions. It does include an after the fact exculpation for an “ad hoc improvisation” in a true ticking bomb moment. It is a crucial difference; again, the Court deliberately stated the prohibition as categorical since the principle of the "exception" had opened the door to a routine of torture from '87-'99. The full text is available at: .

e. During the three years after the ‘99 ruling, approximately 90 Palestinians were subjected to “exceptional interrogation,” according to one Haaretz report, confirmed by Btselem.

f. A "new generation" of Israeli interrogators have been trained in the aftermath of the 1999 Supreme Court decision. As Danny Rothschild – formerly a high official in Israeli security service, now a security consultant in Israel and the United States puts it: "The results are the same. Which shows you could have done without brutal interrogation."

2. What about the ticking bomb?

a. The problem with the “ticking bomb” case is that it seems never to have occurred in the real world.

b. It is an implausible hypothetical that relies on several dubious preconditions: You know an attack is due to occur imminently. You know the person in front of you is the right person, harbors the information that could avert an attack, and will reveal reliable information once subjected to pain, etc.

c. These circumstances are unlikely even within the realm of the thought experiment in which they, indeed, seem exclusively to reside. The “real life” uncertainty about these variables tends rather to slide habitually towards normalization. For how certain does one have to be that the party before you knows something? Can one torture on mere suspicion? Why not torture hundreds, if not thousands, in a context like Iraq, in which everyone is a potential enemy, in which everyone may know something, and there are always bombs primed to explode, if not in an hour, then tomorrow, or next week?

d. On the empirical, historical level: in Algeria, during the French occupation, in Israel and the occupied territories, and now in Iraq and Afghanistan, defense of torture under “ticking bomb” conditions has invariably opened the door to the routinization of torture. Once advanced preparation and legal authorization for “the ticking bomb” exception had occurred, torture became entrenched as an administrative practice and customary procedure for interrogation and governance, not in isolated circumstances in which harsh treatment heroically fended off catastrophe, but rather as an ongoing and indiscriminate regime of cruel and dehumanizing treatment.

e. In short: the “ticking bomb” scenario is an artificial philosopher’s case that cannot withstand its exposure to real world conditions. As NYU Law Professor Aziz Huq has said about this case, “Laws must comport to the world in which we live, not the world with which the Fox channel presents us. It is morally fraudulent to make law on the basis of infidelity to reality.”

I would add: it is not only fraudulent, but actually quite dangerous to use this case to govern our moral and legal reflection about torture in the real world.

PART TWO: JEWISH LAW

Introduction to the topic of torture in Jewish law and values

Jewish law does not overtly address the issue of torture. When torture is explicitly named in Jewish texts, it is from the vantage point of the victim, whether in the context of the Roman Empire, the Crusades or the Holocaust.

We have descriptions of R. Akiva and R. Henaniah b. Teradyon withstanding gory horrors – which we recount in the Eleh Ezkera on Yom Kippor. The former’s flesh torn with iron combs, the latter wrapped in a Torah scroll and set afire with wet wool on his chest.

We have Rebenu Tam asking, whether its permissible to hasten one’s own death when being subjected to excruciating pain as a pressure to convert.

In relation to inflicting torture – permitted or forbidden – the sources are silent.

Hazal and Rishonim in general, display an embarrassment of poverty in relation to questions of war ethics, perhaps because they didn’t imagine their hypothetical rulings about the battlefield to be heeded, unlike their detailed rulings in matters of Shabbat and kashrut.

RHR-NA Rabbi Melissa Weintraub and Orthodox Rabbi Saul Berman, have argued that the cumulative weight of Jewish precedent, principles, and ideals suggest a near total ban on torture.

Orthodox Rabbi Michael Broyde argues that Jewish law would permit torture.

You may want to have two OpEds on hand arguing for and against torture from the perspective of Jewish values (they are in your packet). You can acknowledge your own intellectual and moral bias towards the argument “against” torture while nodding respectfully towards Broyde’s position.

The presentation that follows centers on two twin, related, and at times competing ideals in Jewish law: 1) The imperative to safeguard human dignity. 2) The obligation to protect human life. Both are so pivotal that they are granted legal override status in Jewish law – arguably the underpinning principles of the Jewish moral and religious system.

Suggestion: Touch on the Prohibition against Self-Incrimination in a few sentences before proceeding into the rest of the presentation. It is the closest we have to an overt prohibition against torture in Jewish law. Do not dwell on it for the reasons stated below.

Ain Adam Mesim Etsmo Rasha: The Prohibition against Self-Incrimination

1. The Halakha includes a prohibition against self-incrimination, which is basically a more stringent version of the Fifth Amendment, barring confessions from being admitted as evidence in a criminal trial.

2. American vs. Jewish law. In American law, a coerced confession is inadmissible evidence. In Jewish law, a confession is inadmissible whether spontaneous or extorted, voluntary or involuntary, in-court or out-of-court.

3. Many contemporary scholars, including Saul Lieberman, view this ban as an implicit protection against torture that arose while Jews were being subjected to torture under the Romans. The ban removes any motive for physical coercion in interrogations.

We are not going to dwell on this because:

1) It’s a highly technical area of Jewish law.

2) The law includes a loophole for Horaat Sheah - emergency conditions, including rampant crime, in which the safeguard no longer applies.

Kvod Ha-briot Docheh Lo Taaseh

For many Jewish authorities, the idea that we are created in the Image of God implies that the human body is the corporeal representation of divinity, a view responsible for many legal prohibitions against tattooing and piercing, let alone outright abuse and debasement of the body.

The law prohibits dishonoring even the dead body of a criminal convicted of a capital crime. Rashi comments that doing so would be a direct affront to God (in his words): “Because man is made in the image of his Creator, to humiliate his body is to demean the Heavenly King.”

Traditional Rabbinic literature employs the term kvod ha-briot, the dignity of created beings, alluding to the Creator as the source of human dignity and grounding the requirement to protect dignity in the divine origins of the human. The term kvod ha-briot signals a form of unqualified, universal respect for human beings, intrinsic to our existence, independent of our social status, identity, conduct, or context.

The Rambam text summarizes the principle of Kvod Ha-briot. If pressed for time, you may not want to read the other texts in this section.

Summary of text: D’rabanan commandments are displaced out of considerations of human dignity. The principle is based on a classic text in Brachot. In the parallel text in the Yerushalmi R. Zeira proposes that d’oraite mitzvoth are also overridden.

See the RHR-NA article on Kvod Ha-briot for more detail.

The Rabbis enshrine kvod ha-briot as the litmus test for the halakhah, our sacred law. Gadol kvod ha-briot she-docheh lo taaseh – human dignity holds legal trumping priority relative to all other rabbinic obligations. Discard our rulings - abrogate our law - before engaging in humiliating or contemptuous behavior. This is an astonishing legal override from religious authorities who construe their rulings as originating in divine will (!) – a seeming statement that were our divine law to participate in the degradation of the human person, it would betray its own raison d’etre.

The Baba Metzia is also a powerful text. If you have time, read especially the beginning out loud.

The Talmud relatedly teaches that shaming is a grave sin, the equivalent of shifut damim, an irreparable wrong more serious than monetary wrong because it injures another's very personhood rather than his replaceable property.

Whose humanity is worthy of such protections? May one forfeit the right to dignified treatment? The sources teach us that the obligation to treat others with dignity and avoid shaming is not conditional on what sort of person we imagine stands before us. The Talmud voices anxiety over the inevitable humiliation involved in arrest, before a person, presumed innocent, has been convicted through due process of law. The texts present the criminal offender's dignity, even during and post- conviction, as standing independent of his personal attributes and actions, intrinsic to his humanity.

The Israeli Supreme Court has taken the high road in relation to torture on the basis of the supreme significance of human dignity in Jewish thought. Israel enshrines human dignity in its basic law. Quote:

A free and civilized society is distinguished from a barbaric and oppressive society by the degree to which it treats a human being as a human being…. Just as the [Talmudic] rabbis were bold enough to waive all prohibitions instituted by them where necessary to preserve human dignity, [our law] should be cautious in sacrificing human dignity on the altar of any other requirement whatsoever.

On the basis of this principle, the Israeli Supreme Court in 1999 categorically outlawed the very interrogation methods authorized by the U.S. in 2001.

The Supreme Court decision is worth reading aloud. There is a long excerpt in the text packet.

The counter-argument (transition to Rodef)

But the Jewish counter-argument goes, surely, the obligation to protect our own soldiers and civilians should trump the claims of human dignity by those who seek to do us evil? Yes, the Jewish moral agent is charged to treat others with compassion and dignity in everyday life, but on the battlefield? Doesn’t war necessarily entail the suspension of our general ethical sensibilities for the net good of saving innocent life?

Judaism prizes nothing more than human life. One must transgress ritual laws – including stringent Biblical laws like those governing kashrut, Shabbat, and YK – rather than imperil human life. The halakhah privileges the preservation of life above all other enactments outside of murder, idolatry and sexual transgression (adultery, incest).

The most relevant principle to thinking through the ethics of self-defense in Jewish law is rodef - the law that describes when and how we can use violence against an aggressor for the sake of saving another person or oneself.

Note that for the purposes of this shiur we will couple rodef (defense-of-others) and self-defense. The latter is described as “k’rodef” (like rodef), and they are generally conflated in the literature.

The following presentation notes the central Jewish principle of self-defense and then notes 2-3 preconditions that constrain the use of force. The first 2 preconditions are most important, and interesting to do “inside” (that is, to actually read the texts out loud).

Rodef

The principle of self-defense in Jewish law is based on a Biblical case of a thief invading home at night.

Read Sanhedrin 72a out loud. You may want to begin with Ex. 22, the verse on which it is based.

This text includes the most succinct statement of self-defense: “If he comes to kill you, kill him first.” This line made newspaper headlines this summer.

Question: Notice any potential conditions already?

The text assumes that the “nighttime intruder” entered with intent to harm (because he assumed the homeowner was home), so one is permitted to kill him in pre-emptive self-defense. If “the sun has risen on him” one is liable for using force in self-defense. That is, he intruded by day, one can be reasonably certain he did not come with intent to harm, because he presumed that one is not home.

If you read Ex. 22:

Name that condition. Why is there bloodguilt in the latter case?

o Question of intent to kill. Most commentators assume that during daytime, thief less likely to have violent intentions with intent and will to kill.

o Other commentators suggest that the risen sun is a metaphor for certainty (Rambam, Rashi, etc.). Owner is forbidden from killing intruder if clear that entered home purely for financial gain, not with murderous intent.

o Later authorities disagree over degree to which one must be certain – “approaching certainty”

3 additional preconditions on Rodef:

Read the Maharam bar Barukh and ask students to “name that precondition.”

About the Maharam: Rabbi Meir (1215?-1293, Worms), became universally acknowledged as the leading authority on Talmud and Jewish law, and many communities in France, Italy and Germany frequently turned to him for instruction and guidance in all religious matters and on various points of law. Incidentally, he died in prison when the Archbishop of Mainz held him, without charge, for 10 years for a huge ransom that he forbade the community from paying.

#1: Imminence.

• Present need rather than response to prior or future attack – one may not kill or injure a harm-doer to avenge or punish a finished crime, or to prevent a future threat, but only in response to crime about to transpire before one’s eyes. a moment of unavoidable urgency. One must be saving a particular victim from imminent death, in a moment of unavoidable urgency.

• Why? It’s a protection against revenge. Punishment is reserved for the system of justice, with its careful inquiry into facts and procedural safeguards.

Note: Both Israeli and American law also require that force be directed against a threat that is imminent, immediate, and “certain.”

Read the first Sanhedrin 74a text on the page and name that precondition.

#2: Minimum possible harm standard

American law also mandates that force used in self-defense or defense of others be ‘necessary to defend’ or ‘necessary to prevent’ specified harms.

I generally summarize this as “shoot at the feet, not the chest.” Recently, someone noted that American police are now trained to shoot at the torso, or biggest part of the body, as anything else is “dangerous.” Disturbing, but noteworthy.

You may wish to read the next Sanhedrin 74a text in the packet. If you have limited time you may not want to touch on this precondition as it is more complex. Those who argue that rodef preconditions do not apply to battlefield contexts cite this principle as an “argument from silence:” rodef does not permit the killing of innocent third parties as collateral damage, so therefore it must not apply to wartime or international contexts (as opposed to intra-societal contexts) since war necessarily entails the killing of innocents. I generally suggest that regardless of whether we believe that “collateral damage” is inevitable in contemporary warfare, the distinction between a “civilian” and a “combatant” is the foundation of an ethical society and a standard worth striving towards – one that is stated as an ideal in the Talmud (see below), and a cornerstone of international law.

It is also important to note that all of the aforementioned ethical principles – including the imperative to honor dignity – do not hinge on “innocence.” Sometimes people get confused by the concept of innocence entering the conversation at this point.

#3: Innocent bystanders may not be sacrificed for the so-called “greater good.”

• What does it mean to says ‘perhaps his blood is redder?’ Insistence on equal value of innocent human lives.

• Against instinct of self-preservation, must die before becoming direct cause of another innocent person’s death.

• Later authorities apply this principle to all cases in which can find not way to avoid endangering oneself without committing violence against another.

If you have time, the Tosefta is really quite an extraordinary text, and adds to the conversation.

• What’s the significance of this text? What does it add to the standard? Not only prohibited from sacrificing innocent life to protect our own; prohibited from surrendering single life to protect a whole community.

• Why may Sheva ben Bichri be surrendered? What’s the qualification? Yerushalmi: R. Yohanan – if singled out for death, can hand someone over, even if he’s totally innocent, provided one is certain he’ll die anyway. Resh Lakish – person may not be handed over unless has already forfeited life by committing capital crime for which stands condemned.

• Authorities disagree over two interpretations, but all agree – one may not directly and knowingly kill an innocent person unless that individual will die in any event, even to rescue many others.

• Jewish law rejects utilitarian cost-benefit logic that might lead one to conclude that blood of many is indeed redder than the one.

Let’s sum up.

• Force is justified only in the face of imminent danger. Threat may not be inferred from past conduct, but must be visible and urgent in the present moment.

• Minimum possible harm.Force may not exceed what is required to save particular victims from immediate harm.

• Force may not hurt innocent bystanders.

Would a Rodef defense permit torture in Iraq, Afghanistan, and Guantánamo? What do you think?

#1 Imminence

If the “Ticking Bomb” case hasn’t come up until this point, this is a good moment to discuss it.

The well-documented use of "torture lite" in American detention facilities has not been restricted to cases in which interrogators were fighting a clock against an imminent attack. U.S. military personnel have used physically coercive techniques not to deactivate looming bombs, nor even only to foil future attacks, but also to obtain information about who was involved in previous attacks, to learn who is generally hostile to American policies, to punish, intimidate, and pacify detainees, and to send a message to detainees' families and communities back home.

Jewish law requires that violence be used in self-defense only as an expression of unavoidable urgency, when life is in immediate peril. Such a standard would allow the killing of a suicide bomber strapped with explosives, or return of enemy fire in battle.

It would not permit deliberate, routine, premeditated violence in the cool calculated conditions of the interrogation room in which a subject is at one’s mercy and poses no immediate threat to life.

BUT, what about a true “ticking time bomb” case” in which a suspect in custody knows the location of a hidden explosive device that threatens life on a grand scale and has refused to cooperate by non-violent means?

(See the above discussion of responses to the Ticking Bomb question, pp. 5-6).

#2 Minimum Possible Harm

What would "minimal possible harm" look like in an interrogation room? Are there alternative means to protect public safety and innocent lives?

Two points:

a. Torture doesn’t seem to work very well. The research demonstrates that torture provides largely unreliable information, if not absolute fabrication, driven by both the victim's psychological instability while experiencing excruciating pain and his belief that he will be able to bring his torment to an end with a story – any story. As the straight-shooting John McCain likes to say, “Torture is just stupid.” (This from a man who once confessed to the North Vietnamese the entire lineup of the Greenbay Packers offensive linemen rather than the members of his flight squadron). There are many citations I could offer here; I’ll give two. A professional interrogator in Rhodesia reports only two incidents in his twenty-year career as interrogator in which valuable information was obtained through torture; both were locations of arms caches, not information about ticking bombs. As John Langbein, who has meticulously researched the rise and fall of the use of torture in the European criminal justice system, asserts: "History's most important lesson is that it has not been possible to make coercion compatible with truth."

b. There are demonstrated, alternative ways of getting the information we need to protect lives. Research demonstrates that rapport-building – winning over informants through the earning of their confidence – is the most effective method of interrogation, followed by non-violent ruses that catch suspects by surprise. Cyril Cunningham, who served in the Ministry of Defense of the UK, once quipped: "The best interrogator I ever met…had the demeanor of an unctuous parson." FBI documents claim that in Guantánamo, "every time the FBI established a rapport with a detainee, the military would step in and the detainee would stop being cooperative."[1] In the aftermath of the 1999 Israeli Supreme Court decision, a new generation of interrogators has developed a host of alternative interrogation techniques. Danny Rothschild, formerly a high official in the Israeli security service claims: "The results are the same. Which shows you could have done without brutal interrogation."

Physical coercion is neither the least harmful nor the most effective means of obtaining the information we need to protect ourselves. Much false information tends to be disclosed in the face of agonizing pain, and research demonstrates that prisoners tend to cooperate more readily when their trust has been earned.

Given that there is little demonstrated proof that torture “works,” and that alternative, effective means are available to gather intelligence necessary to protect American lives, I submit that torture would not be permissible according to the "minimum possible harm" standard.

#3: The Equality of Innocent Lives

If you enter into this discussion, again make sure you emphasize that all of the above criteria do not hinge on “innocence,” but that this criterion adds yet another reason torture – which has a tendency to spread to many innocents – is wrong from a Jewish perspective. (This is more of a “consequentalist” than an “absolutist” or “deontological” argument, for those who find philosophical terms clarifying).

Jewish law, as discussed above, rejects the cost/benefit logic of sacrificing a few innocents for the sake of a net saving of life.

Most of those who defend torture rely on the assumption that the person being tortured is not a mere suspect; he is a confirmed perpetrator, a terrorist, the worst of the worst.

In real life, however, interrogators rarely know that they have the "right" person before them, particularly when detainees have been gathered in broad round-ups and granted few due process protections, including the habeus corpus to challenge the legality of their detentions or the right to see the evidence against them.

Again, two empirical points: one contemporary, one historical.

1. One of the many consequentialist arguments against torture – again from the historian's corner – is that torture has meta-static tendencies. Like a disease, it is infectious; invariably, it spreads. Between ’87 and ’99, Israel justified “moderate physical pressure” under “ticking bomb” conditions. Later data revealed that 85% of the Palestinians who passed through the Israeli military detention system during these years were subjected to these techniques, regardless of the charges against them, or lack thereof.

2. Perhaps this tendency for “torture creep” would not be so morally troubling if not for the evidence that under emergency military conditions, a lot of innocent people get vacuumed into the system.

3. In our own military context, the statistics are so damning that it is difficult to absorb them without denial.

As of 2003, the International Committee of the Red Cross estimated that between 70-90 percent of those held in Abu Ghraib were there "by mistake;" later official Army inquiries dropped that estimate to two-thirds. At Guantánamo, official reports estimated that 40 percent of detainees never belonged there. 85 percent of those captured at Bagram in Afghanistan were released without any charges or evidence of terror links. There were reports of routine physical and psychological ill-treatment and abuse at each of these facilities.

If we imagine as true for even one moment that our lives belongs to God, that all human lives are equally Beloved to God, that one infinite soul may outweigh a whole community, and that it is simply not up to us to decide how could we permit a policy that consistently results in the destruction of so many innocent lives?

Finally, the reasonableness, or certainty, standard.

I have stated that in Jewish law one must be reasonably certain that a threat is real and that force will contribute to averting it. This sort of standard, as any criminal lawyer will tell you, is difficult to adjudicate because deeply subjective, in a barroom brawl, let alone in a world like the one in which we live—a world in which shadowy “threats” are pervasive and ongoing on the one hand, haphazard and unpredictable on the other. In our struggle to protect the public from terror, how do we ascertain: 1) the degree of actual vs. perceived threat, and 2) what force will contribute to ameliorating these threats, rather than exacerbate them?

These may seem like tactical questions – but as Jewish law recognizes, it is impossible to disentangle moral questions from the practical, empirical, and even political “real world” situations in which they arise.

Consider the following. In 1995, a man named Yigal Amir assassinated the Prime Minister of Israel on grounds of the defense-of-life principles I have laid out. He argued that Yitzhak Rabin, in pursuing a path of territorial accommodation, was endangering the survival not only of the State of Israel, but of the entire Jewish people.

In Israel, many halakhic decisors didn’t quite know what to do with Amir’s reasoning, for many agreed that Oslo did present a danger to the Jewish people. In the end, Amir’s reasoning was rejected on the grounds of uncertainty. After all, at least half of the Israeli voting public believed that terminating the peace process would be at least as dangerous as its continuation.

In closing, I want to name four reasons torturing detainees is at least as dangerous to the American people as refraining from doing so.

1. Even if torture helps win a battle, it typically helps lose the larger war. In the aftermath of Abu Ghraib, bipartisan military and political commentators joined in recognizing that America had just granted Osama bin Laden his most effective propaganda campaign and recruitment tool yet.

Even if torturing detainees were to help garner “actionable intelligence” on terror networks (setting aside for the moment torture’s questionable efficacy) – what good is a military tactic that helps break a terror cell while alienating allies and moderates and engendering hatred and resentment in an entire population?

Thomas Friedman has been particularly eloquent on this point: “I am convinced [says Friedman] that more Americans are dying and will die if we keep the Gitmo prison open than if we shut it down… Why care? It's not because I am queasy about the war on terrorism. It is because I want to win the war on terrorism… This is not just deeply immoral, it is strategically dangerous… I would rather have a few more bad guys roaming the world than a whole new generation.”

We will not ultimately help the American people to live in greater security by fanning existing hostilities and bolstering the idea that America is an “evil occupier” intent on brutalizing and dehumanizing the Muslims over whom it seeks to rule.

2. Perhaps nothing has done more to erode America’s global political legitimacy and credibility than the torture scandals of the last five years as well the total impunity of those public officials who should have been held accountable for them. See especially Samantha Powers on this subject.

3. Torture endangers our own soldiers, weakening longstanding international protections against the mistreatment of POWs and eviscerating our ability to oppose similar practices when used against American citizens. See especially former Secretary of State Colin Powel, the Army Field Manual, and many other lifelong military folks on this point.

4. And finally, and in conclusion, Torture threatens to destroy the Idea of America – the ideals we have long claimed - the only real counteragent to terror.

The sanctity of human personhood lies at the core and foundation of our nation’s history, enshrined in our constitution through the prohibitions against cruel treatment and self-incrimination. The repudiation of the rack and the screw – along with due process protections and the separation of powers – were seen by our constitutional forefathers as the foundation for the modern rule of law, an enlightened repudiation of persecution and tyranny, essential for conditions of human dignity, liberty, security, and well-being to thrive.

The Supreme Court has long denounced physical and psychological cruelty on the part of governmental agents as "revolting," "shocking," and "alien" to the most sacred values on which America was founded.

Let us heed the historian’s warning: when democracies are brought to their knees by terrorism, it is not in military defeat, but in eroding their own ideals through overreactions (think of Argentina, Colombia, Peru, our own America during the “Red Scare,” etc.). Terrorism tends to menace democratic states most by weakening their own constitutional and ethical commitments.

To paraphrase law scholar Lisa Hajj, If America sacrifices the one right that is considered most sacrosanct and inalienable by U.S. and international law – the one right the civilized world agrees all human beings should have simply by virtue of being human – it is not only the “terrorists” who will lose. It is the humans.

PART THREE: WHAT I CAN DO

1. Sign the Jewish statement. Circulate the online version of the statement. We need to send a clear message to Congress that the Jewish people does not condone torture. If you sign up and circulate the statement, you will also find out how to take action during key legislative moments.

2. Sign up to be part of an advocacy delegation.

3. Sign up to bring an educational program to your community (if applicable; good for adult education settings in which people come from different synagogues).

4. Call your Congress people. Hand out the letter to Senators and talking points in the packet.

Consult with RHR for up-to-date information. The following will likely change by the time you will teach this material.

Senator Dodd and Congressman Nadler have introduced bills in the Senate and House, respectively, to roll back the immoral and unconstitutional provisions of the Military Commissions Act, legislation that the NYT called “a tyrannical law that will be ranked with the low points in American democracy.”

The new bills have been referred to the Armed Services Committees of each house. It is the moment to let Congress know that we expect action on these bills. Urge Congress to reform the Military Commissions Act -- to stop torture, to comply with the Geneva Conventions, and to provide due process to detainees.

The most important thing is for us to let our elected representatives know that it is a moral imperative of this Congress to correct the abuses allowed by the Military Commissions Act, and that the religious community cares deeply about these issues.

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[1]Quoted in Anne Applebaum's editorial, "The Torture Myth," Washington Post, January 12, 2005, p. A21, at



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You may want to begin by asking people to read over the “What’s Going on” sheets, focusing on pp. 1 and 3. The following offers some background thoughts you may wish to offer as well as some FAQs.

You will not be able to squeeze in all of the following. It is intended to provide you with enough information so that you could respond to questions without reading additional articles.

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