RHR 2008: Something There Is That Doesn't Love A Wall
RHR 2008: Boker or from RHR!

RHR 2008: Torture in Jewish Laws and Values

This session -- the full title was Human Dignity, Defense of Life, and "Ticking Bombs": Torture in Jewish Law and Values; Teaching the RHR Materials on Jewish Values and the Issue of Torture -- was led by Rabbi Melissa Weintraub (one of the founders of Encounter, the group with whom I was slated to go to the West Bank this summer until the trip was canceled on account of the balagan with the bulldozer. She's totally one of my rabbinic heroes.)

The aim here, she said, was to show that Jewish values suggest a ban on torture, and to empower us to use the material available to us in order to teach effectively on this material. This kind of learning can enable us to ground our moral standing in Jewish texts. Before we can teach it, we need to be able to articulate why this matters to us. I need to know why as a religious Jew I feel the need to teach about this.

First off, we looked at An Overview of Torture and Abuse of U.S. Military Detainees. Reading about torture; about cruel, inhuman and degrading punishment at Guantanamo; about sexual humiliation throughout America's "theaters of operation; and about detention of innocents is horrifying. Torture joins slavery as the practice most unanimously condemned in internal law. The Geneva Conventions define torture as a crime against humanity. There have to be places to which we do not descend, even in the depths of war, and torture is a degree of inhumanity to which we will not descend.

Torture is any act by which severe pain and suffering are intentionally inflicted on a person. It's something carried out by an official agent of the state against someone who is at that person's mercy. Defining torture became a vexed issue in President Bush's administration; Bush said often that "we don't torture," and he was only able to say that by relying on a new definition of torture, "permanent organ failure or death," though this is not what torture means according to international law or in international precedent.

Israel banned torture categorically in 1999 -- including the same practices that are now carried out under American jurisdiction, such as hooding, loud noise, and deprivation of sleep and food and drink. (Hearing this put me in mind of the Edeet Ravel novel I reviewed this summer.) The British army used these techniques against IRA soldiers and studies have shown that the people who underwent these things were profoundly emotionally damaged; most died young. American interrogation is also known to feature beatings, forced nudity, painful shackling for long periods of time, and "waterboarding."

That was our prelude. From there, we went into studying Jewish texts (Torah, Talmud, and midrash) which offer insights into Jewish tradition's view of torture.

Jewish law doesn't explicitly mention torture, except in terms of torture being done to us. There's a lot of material of torture being perpetrated against Jews; we read some of this material during Yom Kippur afternoon services during the martyrology service. There are questions like, if one is being subjected to torture can one hasten one's own death? But what we don't have is the moral question of, in order to prevent massive loss of life, can we subject someone to force and violence if it's someone who we perceive has information we need in order to avert the attack.

We read a text from Rambam, Mishnah Torah Hilkhot Kilayim 10:29:

A Rabbinic prohibition is always and everywhere superseded for the sake of human dignity. And even though we are explicitly enjoined in the Torah not to depart from the Sages' teaching either to the right or to the left, this negative precept itself is set aside in the interests of human dignity.

He's talking about rabbinic prohibitions; ideas which are d'rabanan, not d'oraita (From the rabbis, not from the Torah -- e.g. from Oral Torah, not Written Torah.) But he's saying that even though we're explicitly told not to depart from the Sages' teachings in either direction -- a phrase which anchors rabbinic authority in the Torah itself -- human dignity trumps rabbinic law, period.

We touched very briefly on a gorgeous text from Talmud (Bava Metzia 58b-59a) which likens shaming to snuffing out someone's soul, and which argues that shaming someone is worse than stealing from them or committing adultery. Human dignity is of paramount importance in the Jewish understanding.

And then we moved to a set of texts titled Self-defense and the ticking bomb. There are rabbis who argue that the lives of our families are more important than the dignity of those who might seek to do us harm. Life trumps dignity, in other words. It is a halakhic principle that saving a life trumps everything, even observance of Shabbat. So if life on a massive scale were threatened, and we believed that the person before us had information we needed which would enable us to save lives, couldn't we do everything at our disposal to torture them?

Rabbi Michael Broyde has written an op-ed which argues that yes, it is permissible to torture under these circumstances. (Published in The Jewish Week, July 7 2006, the essay is called "Jewish Law and Torture;" I couldn't find it online, though I found references/responses to it.) Rabbi Weintraub argues that no, torture is not permissible under Jewish law even under difficult circumstances.

We looked at a verse from Exodus (22:1-2) about a thief seized while tunneling into a place in order to steal something, and whether or not there is bloodguilt if he is seized and beaten to death under various circumstances. The text suggests interesting questions of intention and premeditation. We also looked at a Talmudic text which argues, "If he comes to kill you, kill him first." These are murky waters, giving permission to take life in order to save it; Rambam will argue that this is only permissible in instances of imminent danger, and that the statement does not and cannot stand alone.

We looked at a text found in Bava Kamma 196 about ongoing attack. If I punch you and then walk away and you're no longer in danger, you're not allowed to come back across the bar five minutes later and hit me with a chair. (Whereas if I hit you and you hit me right back while the altercation is still going on, then you're justified.) We are permitted to use force in a case of imminent, clear and spontaneous harm.

We looked also at a text from Sanhedrin which argues that if someone's going to do me harm and I can stop him by shooting him in the leg, it's not permissible to kill him instead. (In other words, the texts tell us that we need to use the minimum effective level of force.)

And there's a text from Pesachim which argues that one should sacrifice oneself rather than killing someone else. We're all human, all children of God, and no one has the right to presume that his own life is worth more than the other guy's. Remember, too, that these texts don't presume innocence; even if the person in question is known to be culpable of causing harm, the texts tell us that the minimum possible harm standard is necessary.

So what do the texts about imminence, minimum possible harm, and equality of innocent life tell us about what's permissible in terms of torture?  As we answered that question, we also looked at the question of whether torture is effective and whether/how that matters to us.Evidence shows that people subjected to torture will say anything to get the pain to stop, which means that interrogations which use torture don't actually yield reliable information. (John McCain used to say this, before his about-face during his recent presidential campaign.) According to the minimum possible harm standard, we should use whatever means will cause least harm to get the information we need in order to keep our communities safe -- and torture is typically not that means.

It's also worth noting that the ticking bomb, as seen so often on 24 (full disclosure: I liked season one, before its politics got quite so appalling; it used to be narratively interesting, once upon a time) -- but that doesn't ever seem to have really happened. It's a philosopher's conundrum, but no government has ever been able to come up with a case when that actually happened. What we're given in Jewish law are principles from which to extrapolate our value system, and we're told that the foundation for an ethical human society is valuing human dignity and responding that we can only respond to violence with violence under very limited conditions.

We closed with this data: the U.S. Army's own statistics say that 70-90% of those in Abu Ghraib and 40% of those in Guantanamo seem to have been innocent of any involvement in terror activity. On the whole these people have not been given a fair trial, and most of them are not guilty. This kind of problem is not unique to us, but it's incredibly troubling. And once people are trained in using these techniques of interrogation and torture, the techniques tend to get used more often, and that's something we don't want to stand for.

For more information:

Jewish Values and Torture is a packet of online resources on these issues, developed by Rabbi Weintraub, available for use as long as she and RHR are credited.

The workshop was incredibly intense, but really worthwhile.

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