Kvod Ha-Briot: Human Dignity in Jewish Sources, Human Degradation in American Military Custody

It was discovered that freedom in this land is not ours. It is the freedom of the occupying soldiers in doing what they like… abusing women, children, men, and the old men and women whom they arrested randomly and without guilt. No one can ask them what they are doing because they are protected by their freedom… No one can punish them, whether in our country or in their country. They expressed the freedom of rape, the freedom of nudity, and the freedom of humiliation.

-Sheik Mohammed Bashir, Friday prayers, Um al-Oura, Baghdad, June 11, 2004[1]

Anyone who shames his fellow in public, it is as if he spilled blood.

-Baba Metzia 58b

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, this section will focus on those specific techniques that seem staged to take advantage of perceived Arab vulnerability to public humiliation, particularly of a sexual sort.[2] It will then explore the importance of human dignity in Jewish sources – a value so highly esteemed that it is granted legal trumping precedence over many other religious obligations, and its inverse, public shaming, presented as a sin to be avoided at all costs.

Of the widespread abuses of prisoners in American custody, the extreme sexual humiliation of Abu Ghraib is most well-known. Photographs from Abu Ghraib have circulated around the world since the spring of 2004: Private Lynndie England grinning with a cigarette casually dangling from her lips, giving the thumbs up with her left hand, while with her right she points at the genitals of an Iraqi man as he masturbates, naked except for the hood covering his head. Three other naked, hooded detainees, hands protectively cupped over their genitals, in her rear. Pvt. England and Specialist Graner embracing, grinning and signaling their thumbs up behind a pile of naked, twisted bodies contorted into a human pyramid. A kneeling, naked male prisoner, posed to appear as if performing fellatio on another naked, hooded prisoner. Unmuzzled dogs snarling at naked, petrified Iraqi men. A naked Iraqi man on a leash, splayed facedown on the ground, with Pvt. England seemingly "walking" him, or dragging him, across the floor. Other unreleased photographs show "American soldiers severely beating an Iraqi prisoner nearly to death, apparently raping an Iraqi female prisoner, and acting inappropriately with a dead body."[3]

Shortly after the public disclosure of many of these photographs, the New York Times managed an interview with Hayder Sabbar Abd ,[4] one of the men pictured masturbating beneath Pvt. England's tickled grin:

The seven men were all placed in hoods, he said, and the beating began. 'They beat our heads on the walls and the doors,' he said. 'I don't really know: I couldn't see.' He said his jaw had been broken, badly enough that he still has trouble eating. In all, he said, he believes that he received about 50 blows over about two hours.

“Then the interpreter told us to strip”, he said. “We told him: You are Egyptian, and you are a Muslim. You know that as Muslims we can't do that.” When we refused to take off our clothes, they beat us and tore our clothes off with a blade.

It was at this moment in the interview…that several pages of the photographs made public last week were produced… He quickly and unemotionally pointed out all his friends – Hussein, Ahmed, Hashim – naked, hooded, twisted around each other.

He also saw himself, as degraded as possible: naked, his hand on his genitals, a female soldier, identified in another report as Pvt. Lynndie England, pointing and smiling with a cigarette in her mouth. Mr. Abd said one of the soldiers had removed his hood, and the translator ordered him to masturbate while looking at Pvt. England…

“She was laughing, and she put her hands on her breasts,” Mr. Abd said. “Of course, I couldn't do it. I told them that I couldn't, so they beat me in the stomach, and I fell to the ground. The translator said, 'Do it! Do it! It's better than being beaten.' I said, 'How can I do it? So I put my hand on my penis, just pretending.”

All the while, he said, the flash of the camera kept illuminating the dim room that once held prisoners of Mr. Hussein.[5]

The military's own investigative accounts make for only slightly less stomach-churning reading. A few months before the Abu Ghraib scandal broke publicly, Major General Taguba completed a fifty-three page report, not intended for public release, that describes some of the other "sadistic, blatant, and wanton criminal abuses" he found in his investigation of Abu Ghraib: "Breaking chemical lights and pouring the phosphoric liquid on detainees; pouring cold water on naked detainees; beating detainees with a broom handle and a chair; threatening male detainees with rape…sodomizing a detainee with a chemical light and perhaps a broom stick, and using military working dogs to frighten and intimidate detainees with threats of attack."[6] The Red Cross, meanwhile, had already reported directly witnessing detainees "being paraded naked outside cells in front of other persons deprived of their liberty and guards, sometimes hooded or with women's underwear over the head... Being attached repeatedly over several days…with handcuffs to the bars of their cell door in humiliating (i.e. naked or in underwear) and/or uncomfortable positions causing physical pain…" When they asked for an explanation about "the practice of keeping [prisoners] completely naked in totally empty concrete cells and in total darkness…the military intelligence officer in charge of the interrogation explained that this practice was 'part of the process.'"[7]

President Bush and Secretary of Defense Rumsfeld condemned the outlandish excesses of the military police at Abu Ghraib as "disgraceful conduct by a few American troops, who dishonored our country and disregarded our values," the aberrational behavior of "a few bad apples" that "do not represent America."

But the abuses at Abu Ghraib, as revelations in the past year have clarified, represent extreme examples of practices pervasive in U.S. military facilities not only in Iraq, but also in Afghanistan and Guantánamo Bay, where many of the techniques seem to have been originally produced for export. Sexual humiliation has been ubiquitous, directed at al Qaeda operatives and Iraqi prisoners-of-war, "high-level" suspects and innocent civilians mistakenly picked up in round-ups off the street.[8] From Guantánamo Bay to the Bagram holding facility in Afghanistan, detainees have been stripped, left naked in isolation, hooded, beaten, kicked, shackled in humiliating and physically painful "stress positions" for hours on end, spat at, urinated on, deprived of food and sleep for days, exposed to extremes of hot and cold, bombarded with painfully bright lights and loud violent music, and threatened with dogs. Many have been interrogated in sexually suggestive and abusive ways. As one soldier in military intelligence candidly put it, "we strip down prisoners and embarrass them as a way to help 'break' them."[9]

In February 2005, the Pentagon confirmed leaked accounts that female interrogators repeatedly tried to "break" devout Muslim detainees at the U.S. prison camp in Guantánamo Bay 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.[10] In one 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.[11] After this incident was leaked to the press, a Pentagon inquiry revealed several other instances in which female interrogators had used red dye to pretend to wipe menstrual blood on the bodies or clothing of detainees. In July 2005, the Army released Lt. Gen. Randall M. Schmidt's report of his investigation into abuses at Guantánamo, which concludes that "stripping detainees, forcing one to wear women's lingerie and wiping red ink on a detainee and telling him it was menstrual blood" are all "authorized approaches called 'ego down' or 'futility,' which are used to make the interrogation subject question his sense of personal worth or the value of resisting."[12]

In May of this year, meanwhile, Tim Golden reported on some of the many cases of abuse and humiliation carried out in the Bagram Airbase in Afghanistan, drawn from a 2000-page confidential file of the Army's investigation into two brutal deaths of young Afghan men at the hands of U.S. interrogators:

In sworn statements to Army investigators, soldiers describe one female interrogator with a taste for humiliation stepping on the neck of one prostrate detainee and kicking another in the genitals. They tell of a shackled prisoner being forced to roll back and forth on the floor of a cell, kissing the boots of his two interrogators as he went. Yet another prisoner is made to pick plastic bottle caps out of a drum mixed with excrement and water as part of a strategy to soften him up for questioning.[13]

Sexual humiliation seems to be prevalent not only in detention, but during initial moments of arrest. The Reuters Bureau Chief in Baghdad, for example, wrote a detailed report about the treatment of three Iraqi employees of Reuters, two cameramen and a driver, who were arrested while filming near Falluja, despite showing their press badges and displaying their camera equipment and lack of weapons:

Soldiers would move between them, whispering things in their ear… Salem says they whispered that they wanted to have sex with him and were saying, 'come on, just for two minutes.' They also said he should bring his wife so they could have sex with her.' 'Ahmad said he was forced to insert a finger into his anus and lick it. He was also forced to lick and chew a shoe….Sattar too said he was forced to insert a finger into his anus and lick it. He was then told to insert his finger in his nose during questioning, still kneeling with his feet off the ground and his other arm in the air.[14]

Sexual humiliation, while executed differently in different contexts – translated into a myriad of permutations by different soldiers, units, bases, and commanding officers – seems to pervade the various American "theaters of operation," from Iraq to Afghanistan to Guantánamo Bay. Against the backdrop of this ubiquitous degradation – and the official admission that some of it is authorized – the Abu Ghraib scandal appears less like the sadistic acts of a few perverted rogues, and more like variations on a theme within a well-known script.

There is evidence for higher-level accountability, although, as journalist Philip Carter points out, it is unsurprising that we have no "smoking gun" leading directly down the chain of command from Secretary of Defense Rumsfeld to Pvt. Lynndie England."[15] Given the secrecy and legal finagling that have surrounded Army interrogation practices since September 11, 2001, it is nearly impossible to form a clear and comprehensive picture of which specific techniques are and aren't authorized, and for which populations. What we do know:[16]

The Department of Defense approved "forced nudity" and several other harsh interrogation methods in December 2002, then rescinded many of them. The original authorization stuck. Secretary of Defense Rumsfeld initially approved "forced nudity" as a lawful and "humane" interrogation method, as well as hooding, "stress positions," the use of dogs, and several additional harsh techniques. While he later, when challenged about the legality of the more aggressive methods, formally retracted some of them, once introduced, they spread unimpeded to other areas under American military jurisdiction. Secretary Rumsfeld has never revised his view that these techniques are legal and "humane."
Techniques supposedly limited to "unlawful combatants" at Guantánamo migrated to other facilities. Many of the more aggressive techniques were supposed to be limited to Guantánamo, where Alberto Gonzales (then White House Legal Counsel, now Attorney General) determined that the "quaint" and "obscure" Geneva Conventions do not apply, based on a dubious distinction between "unlawful combatants" and "prisoners of war." Gonzales, in a famous memo to President Bush in 2002, suggests that one rationale for arguing that the Geneva Conventions do not apply in Afghanistan and Guantánamo is to lessen the possibility of prosecution under the war crimes statute.[17] Granting detainees Prisoner of War status, Gonzales worries, might increase the danger of prosecution for “vague” offenses prohibited by the Geneva Convention such as “outrages upon personal dignity” and “inhuman treatment.” During his confirmation hearing for Attorney General, Gonzales acknowledged that the Administration had also determined that Iraqi insurgents, like al Qaeda suspects, are not entitled to Geneva protections.[18]
Many military personnel, meanwhile, have shuttled between facilities, most famously General Geoffrey Miller, the commander at Guantánamo who was named head of prison operations in Iraq – and charged to "Gitmoize" interrogation procedures there – shortly before the worst abuses at Abu Ghraib. Furthermore, while Secretary Rumsfeld formally repudiated several of the techniques that he had initially endorsed, approval of the same techniques issued from such authoritative corners as Alberto Gonzales (then Presidential Counsel) and William Haynes (Department of Defense General Counsel). As the Army's own Fay investigation concludes, in this web of obfuscating and contradictory opinions, "the lines of authority and prior legal opinions blurred."[19] The "existence of confusing and inconsistent interrogation technique policies," including "a proliferation of guidance and information from other theaters of operation" blurred the lines between permissible and non-permissible treatment, confusing interrogators at Abu Ghraib and elsewhere about which interrogation methods were and were not officially sanctioned.[20]
A number of other Justice and Defense Department memos narrowed the definition of torture in order to authorize what has come to be known as "torture lite," including forced nudity and other cruel and degrading treatment. While Secretary Rumsfeld's standing memo of approved techniques eliminated "forced nudity" from its litany, a number of other memos put out by the Justice and Defense departments include as "humane" and legal treatment: "forced removal of clothing" to create a "feeling of helplessness and dependence," use of dogs, use of "stress positions," etc. The Bybee memo, issued by the Justice Department's Office of Legal Counsel (OLC) in 2002, relies on a farcically narrow definition of torture as "physical pain accompanying serious injury such as organ failure, impairment of bodily functions, or even death," as distinguished from what has become known as "torture lite" – cruel and degrading treatment that does not result in permanent bodily or mental injury.[21] The Bybee memo explicitly acknowledges that the purpose of driving a wedge between torture and cruel, inhuman, and degrading treatment is to lessen the possibility of criminal liability: "The criminal statute penalizes only the most egregious conduct…only the worst forms of cruel, inhuman, or degrading treatment or punishment." The OLC issued a revised memo in Dec. 2004, shortly before Alberto Gonzales' confirmation hearing as Attorney General.[22] The revised memo explicitly disagrees with the first memo and departs from it in several subtle respects, including an expanded definition of torture, though it still emphasizes that for treatment to qualify as torture it must inflict "severe physical pain" of "duration" and "intensity" and not only pain that is "mild" or "transitory."
Approved rules, vague in writing, have proved extreme in application. Particularly at Abu Ghraib, vague and inconsistent rules, left in the hands of unsupervised and untrained interrogators and military police, have led to extreme acts of cruelty and torture once applied. The notorious image of a man standing on a box with wires attached to him was likely someone's interpretation of "sleep deprivation" and "stress positions." Interrogators at Guantánamo implemented the call for "moderate discomfort" by shackling detainees to low chairs for hours with bright lights flashing and painfully loud Rage Against the Machine music playing. "Forced nudity," while formally repealed by Rumsfeld, helped pave the way for the ubiquitous acts of sexual humiliation described above. There is also evidence that much of the sexual humiliation is part of a much more deliberate program of "ego down" tactics aimed at pushing the religious buttons of traditional Muslims and undermining their "sense of personal worth"[23] (see below).
Techniques limited to the C.I.A and special access programs (S.A.P.s) within the Department of Defense have authorized sexual humiliation and other more aggressive treatment. The administration has authorized the C.I.A. to employ techniques as extreme as "water-boarding" (near suffocation by producing a drowning sensation). Seymour Hersh presents evidence that Rumsfeld and Under-Secretary Cambone have also created a special access program (S.A.P.) or covert interrogation regime within the Department of Defense that acts by a set of different, more aggressive rules, not only for al Qaeda operatives, but also for Iraqi insurgents.[24] As the Fay Report concludes, the creation of "multiple policies" and double standards has led to a "perception" that the harshest techniques are authorized by the Department of Defense.
The U.S. seems to be "outsourcing" more extreme methods of torture through a policy called "extraordinary renditions." Dozens and perhaps hundreds of suspects have been seized abroad by U.S. police and transported to countries where they are likely tortured with even more extreme methods.[25] Mamdouh Habib, for example, a 48-year-old Australian citizen, was picked up in Pakistan and transferred to Egypt where he claims "his Egyptian captors shocked him with high-voltage wires, hung him from metal hooks on the wall, nearly drowned him and mercilessly beat and kicked him."[26]

In short, there is evidence that high level government officials – including President Bush and Secretary Rumsfeld, on the advisories of their legal counsel – paved the way for the abuses outlined above, and knew about, tolerated, and even encouraged such treatment. There is also evidence that the highest levels of the Pentagon authorized techniques including forced nudity, beatings, sensory bombardment and deprivation, and "stress positions" for agonizing lengths of time, as evidenced by numerous documents now available to the public. While the Administration has repeatedly denied inhumane treatment of detainees, its counsel has gone to great lengths to grant legal immunity to interrogators using coercive treatment that pushes against, if not crosses, the threshold of pain "severe" enough to be called torture, by any definition.

Furthermore, while most of the interrogation procedures used by the American military are "old hat" procedures once employed by the KGB and the British in Northern Ireland, forced nudity and sexual humiliation appear to be an innovation of America's own making. Seymour Hersh observes the buzz that surrounded the book The Arab Mind in Washington prior to the invasion of Iraq; written by cultural anthropologist Raphael Patai, the book dwells on the vulnerability of Arabs to sexual humiliation. Brian Whitaker has also uncovered that this book is the veritable textbook on Arab culture used in the U.S. military.[27] The book includes a 25 page chapter on Arabs and sex that describes "sex as a taboo vested with shame and repression." Hersh argues that the military has lifted two themes from this book – "one, that Arabs only understand force, and two, that the biggest weakness of Arabs is shame and humiliation." Hersh was informed by a government consultant that the goal of the sexual humiliation and photographs was to create a corps of people who would do anything to avoid being dishonored by having the shameful photos exposed to their families and communities.[28]

A pamphlet provided to the U.S. Marines Corps in fall 2003, along with a week-long course in Iraqi customs and norms, laudably attempts to educate American soldiers about sexual taboos in Iraqi culture:

Do not shame or humiliate a man in public. Shaming a man will cause him and his family to be anti-Coalition.

The most important qualifier for all shame is for a third party to witness the act. If you must do something likely to cause shame, remove the person from view of others.

Shame is given by placing hoods over a detainee's head. Avoid this practice. Placing a detainee on the ground or putting a foot on him implies you are God. This is one of the worst things we can do.

Arabs consider the following things unclean:

Feet or soles of feet.

Using the bathroom around others. Unlike Marines, who are used to open-air toilets, Arab men will not shower/use the bathroom together.

Bodily fluids…[29]

Realities of abuse in American detention centers read like the inverted image of this pamphlet's worthy intentions. The U.S. military seems to be exploiting aspects of Arab culture it understands as sacred, trying to break prisoners by violating their most deeply held religious beliefs and cultural norms, as perceived.[30] The humiliating and dehumanizing acts documented in Abu Ghraib, Bagram, and Guantánamo would be deplorable in any culture, and seem aimed at the heart of a traditional religious culture greatly concerned with the preservation of sexual modesty and honor.

Whether this program has resulted in "actionable intelligence" is disputed. That it has resulted in unspeakable trauma is not. Women at Abu Ghraib have allegedly passed messages to their families imploring them to smuggle in poison to end their lives, or insisting they be killed immediately after release from prison to spare their families from shame. The Red Cross has observed rampant personality disturbances and suicidal tendencies in Guantánamo and Abu Ghraib, "symptoms [that] appeared to have been caused by the methods and duration of interrogation." In Guantánamo alone, there were more than 460 acts of self-harm, many of them suicide attempts, between 2003 and 2004.[31]

From paraded nudity to feigned menstrual blood, the U.S. military has used a variety of cruel and degrading techniques in its detention facilities throughout the world, a seemingly purposeful assault on the religious culture and dignity of those at its mercy. The remainder of this section will explore the overarching value of human dignity in Jewish sources, a value so sacred to the rabbis that they grant it power to predominate over all of their other enactments.

Btselem Elohim: Human Dignity Derives from Divine Origins of Human Being

Traditional Jewish 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 human dignity in the divine origins of the human being. From its foundations, our tradition grants consummate value to the human being, as in the first chapter of the Book of Genesis: 'Naaseh adam b'tsalmenu,' 'Let us make the human being in Our image' (Gen. 1:26). For some Jewish authorities, the idea of the "divine image" implies that the human body is the corporeal representation of divinity, a view responsible for many halakhic prohibitions against mutilation or debasement of the body. Others see the soul and intellect as the presence of the Divine in the human being. All agree that both humiliation of the living and dishonoring of the dead are conceived of as direct affronts to God.

Both biblically and post-biblically, the word kavod itself harbors multiple meanings. In the Tanakh, the word appears close to two hundred times, and in rabbinical sources tens of thousands of times. The most prevalent meaning of kavod is honor, but it is also used in the Bible to mean wealth, glory, greatness, majesty, and splendor, usually in relation to the Divine. The word often confers a positive obligation, a heavy (kaved)[32] duty to treat others with dignity and respect. In some contexts, the tradition demands special kavod for designated groups of people: the king; scholars and the elderly; one's parents (kibud av v'em) and community (kvod ha-tsibur). The term kvod ha-briot – on the other hand – signals a form of unqualified, universal respect for human beings as such, intrinsic to their existence as human beings, whether old or young, sick or healthy, tsaddik (righteous person) or rasha (criminal), independent of social status, identity, or context (see below).

A classic midrash expresses the theological underpinnings of this foundational value:

Breishit Rabbah 24 (end). Cf. Sifra, Kedoshim 2:4, JT Ned. 9:4

Ben Azzai says: 'This is the record of Adam's line' is the foremost principle in the Torah. R. Akiva says: 'Love your fellow as yourself' (Lev. 19:18), this is the greatest principle of the Torah. You should not say: Because I have been dishonored, let my fellow man be dishonored along with me…. R. Tanhuma explained: If you do so, know whom you are dishonoring – 'He made him in the likeness of God.' (Gen. 5:1).

R. Tanhuma presents the theological presupposition of R. Akiva's linchpin moral imperative: God is at stake in human relations, harmed and violated through acts of cruelty and degradation, even in retaliation or self-defense. He also presents a practical implication of his directive: one must not shame and insult another human being, created in God's likeness, for to do so is to shame and insult God.

Halakhic sources, meanwhile, concur that kvod ha-briot is one of the overarching values of Jewish tradition; marginal disagreement consists only in the scope of its trumping priority where it clashes with other commandments and values.

Kvod Ha-Briot Doheh Lo Ta'aseh: Halakhic Priority of Human Dignity

The power of human dignity (kvod ha-briot) to displace other mitzvot is a recurrent principle in Jewish law. A passage in BT Brakhot states the general rule:

BT Berakhot 19b

Come and hear. 'Great is human dignity, since it overrides a negative precept of the Torah'. Why should it? Let us apply the rule, 'There is no wisdom nor understanding nor counsel against the Lord?' [this verse was applied earlier in the text to illustrate that divine honor takes precedence over human honor, and so one cannot desecrate God's commandments publicly]. — Rab b. Shaba explained the dictum in the presence of R. Kahana to refer to the negative precept of 'thou shalt not deviate' [Deut. 17:11; that is, the rule that human dignity takes precedence relates only to Rabbinic and not Torah precepts]… but where a person's dignity is concerned the Rabbis permitted [such deviation].

In this classic text of the Babylonian Talmud (Bavli), the Rabbis rule that their own decrees – in contradistinction to Biblical precepts - may be superseded by considerations of human dignity. The parallel text in the Jerusalem Talmud (Yerushalmi) presents the opinion of R. Zeira that even Torah commandments are temporarily overridden where they conflict with human dignity (JT Kilayim 9:1). The Yerushalmi seems to consent to R. Zeira's opinion, citing it in another context to demonstrate that a Torah obligation may indeed be set aside for the sake of human dignity (JT Nazir 7:1; JT Ber. 3:1). The Yerushalmi's seemingly more expansive application of the principle is nonetheless limited to cases in which the dignity of the public (kvod ha-rabbim) is threatened – as in cases of public nudity or burial of the dead; the Bavli's more restrictive application of the principle, on the other hand, is specifically singular (kvodo) and universal (kvod ha-briot), and clearly applies to the dignity of each individual person.

The Bavli, furthermore, broadens the application of the principle to include positive and/or civil Torah precepts.[33] In other words, human dignity prevails in monetary matters and in cases in which transgression of a Biblical commandment would require abstention rather than active violation (shev ve'al ta'aseh; literally "sit and do nothing"); one may abstain from performing a positive Biblical commandment where doing so would violate the dignity of another person.[34] As Rashi summarizes: "[The sages] permitted many things to be uprooted, even if contrary to the Torah, as a preventive measure or in the interests of human dignity, provided that no positive action is involved but only abstention from action."[35]

The Bavli gives several illustrative examples of the principle of kvod ha-briot doheh al ta'aseh:

BT Shabbat 81a-b

Rabbah son of R. Shila asked R. Hisda: Is it permissible to carry [stones to wipe oneself] up to the roof [after one has gone to the bathroom]? Human dignity is very important, he replied, and it supersedes a negative injunction of the Torah.

One is permitted to carry a stone into a toilet to clean oneself, thereby violating the rabbinic prohibition against carrying an object excluded from use on Shabbat. Even in a context of total privacy, absent public awareness, shame may be averted through an active transgression, for human dignity predominates over rabbinic commandments.

Another example demonstrates the importance of respect for the dead as well as the living:[36]

BT Megillah 3b

Raba propounded the question: As between the reading of the Megillah and [attending to] a meth mitzvah [a body for which there is no one else to bury], which takes precedence? Shall I say the reading of the Megillah takes precedence in order to proclaim the miracle, or does perhaps [the burying of] the meth mitzvah take precedence because of the respect due to human beings? –After propounding the question, he himself answered it saying, [Burying] the meth mitzvah takes precedence, since a Master has said: Great is the [obligation to pay due] respect to human beings, since it overrides a negative precept of the Torah.

As Maimonides (the Rambam) and Meiri summarize:

Rambam, MT 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' teachings either to the right or to the left, this negative precept itself is set aside in the interests of human dignity.

Meiri, Bet HaBehirah, Berakhot 19b

Kvod ha-briot is very highly prized; there is no principle that is more highly prized. The rabbis laid down a cardinal rule: great is human dignity, which overrides any negative, rabbinic commandment, permitting its violation even by an active measure…The Torah [moreover] widens [the applicability of] the [overriding] principle of kvod ha-briot even to commandments written in the Torah, for example, in cases of shev ve'al taaseh [nullification by abstention from action].

The trumping priority of human dignity is not unlimited. According to all authorities, one may not transgress a negative, Biblical command in a non-monetary matter where it clashes with human dignity; one may not murder or even wear 'mixed species' (linen and wool together) in order to avoid violations to human dignity. Furthermore, even in cases of rabbinic injunctions, one must do all one can to preempt the conflict. In BT Shabbat 81b, the permission to carry a stone into a toilet on Shabbat is immediately followed by a hairsplitting counterexample; one cannot, for the sake of one's dignity, pick up a chip in a public place in order to clean one's teeth after a meal, because unlike one's choice of toilet location, one could have predicted where one would eat one's meal and thus have prepared toothpicks in advance.[37]

Despite these caveats, the rabbis ruled that the positive obligation to honor other human beings, and the negative injunction to avoid humiliating or contemptuous behavior, takes precedence over all other rabbinic verdicts, and many Torah commandments as well. The rabbis elevate human dignity to such paramount, exceptional importance that they grant it priority over their own authority.

Hamalbin Pnei Heviro b'Rabim: The Sin of Public Humiliation

Rabbinic culture denounces public shaming and humiliation and considers it a grave sin, worthy of uprooting one's place in the world to come, even when done with good intentions, let alone when malicious or deliberate.

A long passage in BT Baba Metzia interprets the verse "Do not oppress (tonu) one another, but fear your God" (Lev. 25:17) as referring to verbal wrongs[38] – inflicting pain through public embarrassment, insults, or other demeaning speech. The mishnah on which this passage comments prohibits one from shaming another person, regardless of the wrongs in his past, "for you shall neither wrong a stranger, nor oppress him" (Ex. 22:20).[39] The Talmud teaches that shaming is akin to murder, the equivalent of shedding blood, an irreparable wrong more serious than a monetary wrong because it injures another's very personhood rather than his replaceable property.

BT Baba Metzia 58b-59a

R. Yohanan said in the name of R. Shimon b. Yohai, "Verbal wronging is a more serious [transgression] than monetary wronging, since with the former it is written, "You shall fear God." R. Eleazar says, "This one affects his person, while that one affects his possessions." R. Shmuel bar Nachmani said, "For this one restoration is possible, while for that one restoration is impossible."

A Tanna recited before R. Nahman b. Isaac: "He who publicly shames his fellow is as though he shed blood." He said to him, "You have spoken well. For the color leaves and the white comes [when one shames someone]. Abaye said to Rav Dimi, "What are they careful about in Israel?" He said to him, "About whitening the face, as R. Hanina said, "…All who descend to hell rise except for three who descend and do not rise. And these are they: He who has intercourse with a married woman, he who publicly shames his fellow, and he who calls his fellow by an epithet" …

Rabba bar bar Hanna said in the name of R. Yohanan: "It is better for a man to sleep with a married woman rather than that he should publicly shame his fellow. How do we know this? From what Raba expounded: "What is meant by the verse, 'But in my adversity they rejoiced, and gathered themselves against me, and I knew it not; they did tear me, and ceased not?' (Ps. 35:15). David exclaimed before the Holy One, blessed be He, 'Sovereign of the Universe! You know full well, that had they torn my flesh, my blood would not have poured forth to the earth. Moreover, when they are engaged in studying …they jeer at me, saying, "David! What is the death penalty of him who seduces a married woman?" I reply to them, "He is executed by strangulation, yet he has a portion in the world to come. But he who publicly puts his neighbor to shame has no portion in the world to come."'"[40]

…It is better for a man to throw himself into a fiery furnace than to put his fellow to shame publicly.

The Talmud specifies that one may not so much as remind a person of something shameful in his past nor in his family’s past. If it is necessary to reprove someone for his misdeeds, one must do so to his face rather than behind his back, in private rather than in public, and with care not to insult or dishonor him. The Talmud is replete with stories in which rabbis as eminent as Raban Gamliel are reprimanded for embarrassing their fellows (BT Berakhot 27b-28a), and in which others nobly find ways to spare others of humiliation (BT Sanhedrin 11a). As Rambam summarizes:

Rambam, Hilkhot Deot 6:8

One who first rebukes his fellow should not use words to shame him, as the verse says, 'Thou shalt…not suffer sin upon him' (Lev. 19:17), and the sages said: 'Are we allowed to rebuke until his face changes?' From this the Rabbis decided that it is forbidden to shame one's fellow, especially in public…thus the sages said that he who shames his fellow in public has no share in the 'world to come.' Therefore one should be careful not to disgrace a fellow in public, whether he is young or old, and should not call him by a name which is shameful or speak in front of him about something that he is ashamed of.

Rabbinic sources also display extraordinary sensitivity to shame-induced pain by developing extensive measures to preclude humiliation based on asymmetries of wealth and power. The Mishnah brings a statement of R. Shimon b. Gamliel: "There were no better days for Israel than the fifteenth of Av and the Day of Atonement, when the daughters of Jerusalem would walk out in borrowed white dresses, so as not to shame anyone who had none" (M. Taanit 4:8). The Talmud describes wide-ranging attempts to level visible material differences between rich and poor: "Formerly people were wont to bring food to a house of mourning, the rich in silver and gold baskets and the poor in baskets of peeled willow twigs, and the poor felt humiliated. It was decreed that all should bring food in baskets of peeled willow twigs out of deference to the poor (etc.)" (BT Moed Katan 27b-28a). As the Meiri explains in his commentary on this passage: "A person should always take care that the poor or other people should not be shamed by his actions. Thus, the rich should behave like the poor, so as not to shame someone who has nothing." (Bet Habehirah, Moed Katan 27a). Numerous teshuvot throughout the ages follow suit, detailing the extensive forethought with which the tradition attempts to negate visible inequalities so as to prevent shaming the poor and disenfranchised.

Boshet: Judicial Redress for Shame

"Boshet" is the judicial manifestation of the recognition that shame inflicts unique injury, over and above any physical harm caused to a person. In a personal injury case, Jewish tort law mandates additional compensation for humiliation on top of damages for pain, medical expenses, loss of time, and depreciation in labor capacity (M. Baba Kama 8:1; BT Baba Kama 83b-84a). The Talmud brings a proof-text dealing with sexual violation to demonstrate that shame wounds regardless of whether physical injury is entailed: "She puts forth her hand, and takes him by his private parts; then you shall cut off her hand" (Deut. 25:11-12).[41]

Another mishnah deals entirely with injuries whose essence is shame, describing a crescendo of injuries considered humiliating:

M. Baba Kama 8:6

If one slaps [his fellow], he gives him two hundred zuz. With the back of one's hand, four hundred zuz.[42] If one slaps [his fellow's] ear, if he plucked out his hair, if he bared the head of a woman in the marketplace, he gives four hundred zuz. This is the general rule: everything is according to the respect due to him. Rabbi Akiva said, even the poorest in Israel are considered as if they are freemen who had lost their property, for they are the sons of Abraham, Isaac, and Jacob. And it once happened that a man uncovered the head of a woman in the marketplace, she came before R. Akiva, and he obligated him to give her four hundred zuz. He said to him: Rabbi, give me time, and he gave him time. He watched out for her, standing at the entrance to her courtyard, and broke the jug before her, in which there was as an issar of oil. She uncovered her head and palmed it and placed her hand on her head. He set witnesses over against her, and came before R. Akiva. He said to him: Rabbi, to such a one I am to give four hundred zuz? He said to him: you have not said anything. If a person wounds himself, even though he is not allowed to do so, he is exempt; if others wound him, they are liable.

In all of the cases described in this mishnah, penalty is assessed for shame even where there are no lasting physical injuries. The Tannaim disagree about whether all receive equal payment regardless of status, but agree that all people receive compensation for crimes against their dignity. Even the woman who would reveal her own hair in the marketplace – viewed as demeaning herself and thus careless about her own dignity – is worthy of recompense if someone else degrades her by exposing her against her will. So too someone who is already naked, the Mishnah maintains elsewhere, warrants compensation for humiliation (M. Baba Kama 8:1), that is, if one spits on or slaps a naked person, let alone if one strips someone who was clothed.[43] Another mishnah makes plain that every person falls within the scope of concerns for human dignity by presenting the ultimate boundary case: "whoever wounds a Canaanite slave belonging to others is liable for all [five categories, including shame]" (M. Baba Kama 8:3).[44] Even the person of absolute lowest social status in Talmudic society – the non-Jewish slave whose labor and body belong to another – possesses intrinsic dignity and must be compensated for encroachments upon it. We are to honor others regardless of whether they demonstrate self-respect; our obligation to treat others with dignity is not conditional on what sort of person stands before us.

Human Dignity of the Criminal Offender and Prisoner

In his explanation for the different penalties assessed for stealing an ox and a sheep, R. Yohanan b. Zakkai assumes that an offender possesses dignity, even at the moment of committing a crime:

BT Baba Kama 79b

The Holy One blessed be He is mindful of the dignity of humankind. For [stealing] an ox, which walks on its [own] feet, the payment is fivefold; for [stealing] a sheep, which has to be carried on one's shoulders, the payment is fourfold.

As Rashi explains, "The thief [who carries a sheep] on his shoulders has [already] demeaned himself, and so the Holy One blessed be He lightens his fine" (ad. loc.). The criminal's self-debasement lightens rather than stiffens his penalty, for the law recognizes dignity, even when a person has himself disavowed it. A person's dignity remains intact in the context of criminal offense, as does the obligation not to debase or humiliate him. Elsewhere the Talmud makes clear that a person may not be degraded in public even though he may be suspected of having sinned (BT Menahot 99b, BT Baba Metzia 58b). The offender's dignity stands independent of his personal attributes or actions, intrinsic to his humanity.

The rabbis were also concerned about the public humiliation involved in arrest, before a person – presumed innocent – had been convicted through a fair trial: "R. Yossi said to him, 'Now do they seize someone in the marketplace and disgrace him?'" (JT Sanhedrin 7:10). The Yerushalmi justifies the arrest only once strict evidentiary criteria have already been met, that is, the court possesses the names of two testifying witnesses who directly witnessed the accused committing the crime, even if the witnesses have not yet appeared in court. As Menahum Elon points out, the presumption of innocence in Jewish law rests on a premise of the inherent dignity of each person; recognizing the shame involved in arrest and detention, the tradition generally allows the court to hold a person in detention pending trial only in cases of severe crime in which the suspect is likely to flee (Shut ha-Rivash 236).[45]

Rambam likewise stresses human dignity after describing the extensive punitive powers of the court, perhaps recognizing the temptation to violate dignity in the penal context:

Rambam, Hilkhot Sanhedrin 24:10

Whatever [the judge] does should be for the sake of Heaven, and human dignity should not be light in his eyes, since it overrides a Rabbinic prohibition. This applies with even greater force to the honor of the children of Abraham, Isaac, and Jacob, who adhere to the true Law. He should be careful not to do anything to injure their dignity. His sole concern should be to enhance the glory of God, for whoever dishonors the Torah is himself dishonored by men, and whoever honors the Torah is himself honored by men. To honor the Torah means to follow its statutes and laws.

Rambam claims that it is all the more important to honor the dignity of Jewish detainees, meaning it is important to honor the dignity of non-Jewish detainees as well. He reminds agents of the law that those who have committed crimes and are condemned to imprisonment merit freedom from degradation; they must take care not to injure the dignity of those at their mercy, for the honor of both God and Torah is at stake.

Nakedness as Source of Distinctly Intolerable Shame

Traditional sources present public nakedness as an unbearable and deplorable source of shame.

BT Yevamot 63b

"I will provoke them with a vile nation" (Deut. 32:21)…. In a Tannaitic source it was taught: This refers to the people of Barbaria and the people of Mauretania who go naked in the streets, for there is nothing more objectionable and abominable to the Omnipresent than the person who goes naked in the street.

Public nakedness is viewed as the ultimate desecration of collective as well as private dignity, a corruption of an entire society and all people within it. Preventing the humiliation of public nudity predominates over rabbinic religious obligations even according to those minority opinions that argue, following the Yerushalmi, that human dignity overrides rabbinic commandments only where the dignity of the entire public is stake.[46] Another view, expressed in the Tosafot, restricts application of the trumping principle of human dignity to those cases in which there is "considerable loss of dignity," and puts forward public nakedness as an example of what is meant by "considerable" (ad. loc. Baba Metzia 30b).[47] For those who try to delimit the scope of kvod ha-briot as a legal override, public nudity is invoked as one of the cases in which the principle is applicable in all its force.

Conclusion: Human Dignity in Contemporary International and Israeli Law

In the wake of the Holocaust, the injunction to protect human dignity has been codified as a value worthy of protection by international law; Article 12 of the Universal Declaration of Human Rights (1948) states: "No one shall be subjected to arbitrary interference with his privacy, family, home, or correspondence, nor to attacks upon his honor and reputations." Perhaps in response to the same historical event, both Germany and Israel have enshrined human dignity as the core, foundational value of their law: "The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state…There shall be no violation of the life, body, or dignity of any person as such…All persons are entitled to protections of their life, body, and dignity."[48]

The Israeli Supreme Court offers several examples of applying the lofty, abstract concept of kvod ha-briot to contemporary, concrete situations, including the rights and dignity of prisoners. Citing kvod ha-briot as developed in the halakhah, the Israeli High Court has determined in several important decisions that prisoners must be provided with all of their basic human needs, physical, religious, and cultural, and treated like civilized people; they must be provided with sleep in a proper bed,[49] food and drink, eating utensils, etc.[50] Unlike in the United States, prisoners are considered citizens who can vote even while behind bars. They have a right to medical attention – not only a prison doctor, but an external specialist, if they are prepared to pay for treatment. They have a right to request minimal conditions to have a personal life with a partner within the walls of the prison. As President of the Supreme Court A. Barak writes:

Imprisonment requires, by its nature, denial of freedom, but this denial does not justify, by its nature, violation of human dignity. Imprisonment that protects the human dignity of the prisoner is possible. The prison’s walls do not have to separate between the prisoner and humanity… A prison is forbidden to become a concentration camp, and the prison cell is forbidden to become a cage. With all the problems inherent in this, a cultured society must ensure the minimum humane standards of imprisonment (emphasis added).[51]

Israeli Supreme Court decisions have also cited the ideas of kvod ha-briot and btselem elohim as rationales for not allowing police to strip defendants in a public place in order to search for drugs:

The meaning of kvod ha-adam is to not degrade and debase the image of God in the human being. Not every sort of harm to human dignity is included in the framework of the Basic law of human dignity and freedom. For example, [the law does not preclude] wounding the honor of an esteemed person, for whom it is fitting, according to his status, to sit only with others of his status and not with common people…Such harm is not considered degrading and debasing of the divine image, and it is not included in the framework of the basic law of human dignity and freedom. The halakhah adopts more strictness in relation to the sort of harm in which there is degradation and debasement of the divine image – for example, conducting a strip search in which someone's clothing is removed publicly. Furthermore, [Jewish tradition] finds that it is preferable not to humiliate or degrade someone publicly even if he has transgressed a rabbinic prohibition and it is well known publicly, and some say even if he has transgressed a Biblical prohibition.[52]

The Court also, on the basis of kvod ha-briot, determined that the Prison Service could not administer an enema or otherwise invade a prisoner's body without his express consent in order to determine whether he had ingested drugs:

The reasonableness of a regulation…is determined by the good standards accepted by the majority of people in a democratic society and state of law, and there is none better and more accepted than basic respect for humans. 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. Lofty classic expression was given to this by the Mishnah: "…whosoever preserves a single soul – Scripture ascribes to him as though he had preserved an entire world…" (M. Sanhedrin 4:5)…

…Just as the 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.

The concept of 'human dignity' is not expressly defined, but one may infer from all the cases in which the sources speak of it that violation of such dignity consists of any act that brings scorn, shame, or embarrassment to a person. Thus to strip the clothes off someone in a public place was deemed an infraction of human dignity (BT Menahot 37b) as was preventing a person from attending to his bodily needs (BT Eruvin 41b)…

It is equally forbidden to touch a person merely suspected of a wrong (BT Menahot 37b). That is the situation in the case before us: even were we permitted to prevent the commission of a wrongful act by removing drugs from the body of a person when it is clearly and demonstrably known that the drugs are in his body, there is no authority to penetrate his body merely to search, to establish whether an offense has been committed or not. The act of preventing the commission of an offence is intended to prevent the continuance of an ongoing offence the commission of which has already begun, and not to prevent an offence the commission of which is only suspected.

To conclude, human dignity is supreme since it prevails over the prohibition of introducing drugs into prison, if that can only be enforced by a violation of the body of a person and his dignity.[53]

Finally, the Israeli High Court has applied the principle of kvod ha-briot, as reflected in both the halakhah and the Israeli Basic Law, to our exact case. In a landmark ruling in 1999, Israel eradicated torture and other cruel, inhuman, and degrading treatment on grounds of human dignity – including the methods currently employed by the U.S.[54] Some of the applicants before the court had been directly involved in hostile activities – including developing Hamas' infrastructure, planning kidnappings of Israeli soldiers, and assisting in suicide bombings – and the General Security Services (G.S.S.) claimed that information revealed in their interrogations had helped thwart other serious attacks. Nonetheless, the court categorically prohibited use of physical coercion in interrogations, while leaving intact a "necessity" defense that could post facto pardon a specific interrogator from criminal liability in a true "ticking bomb" situation. The decision is worth quoting at length:

Indeed, the authority to conduct interrogations, like any administrative power, is designed for a specific purpose, which constitutes its foundation, and must be in conformity with the basic principles of the [democratic] regime. In crystallizing the interrogation rules, two values or interests clash. On the one hand, lies the desire to uncover the truth, thereby fulfilling the public interest in exposing crime and preventing it. On the other hand, is the wish to protect the dignity and liberty of the individual being interrogated. This having been said, these interests and values are not absolute. A democratic, freedom-loving society does not accept that investigators use any means for the purpose of uncovering the truth. "The interrogation practices of the police in a given regime," noted Justice Landau, "are indicative of a regime's very character" (Cr. A. 264/65 Artzi v. The Government's Legal Advisor, 20(1) P.D. 225 at 232). At times, the price of truth is so high that a democratic society is not prepared to pay it… To the same extent however, a democratic society desirous of liberty seeks to fight crime and to that end is prepared to accept that an interrogation may infringe upon the human dignity and liberty of a suspect provided it is done for a proper purpose and that the harm does not exceed that which is necessary. Concerning the collision of values, with respect to the use of evidence obtained in a violent police interrogation, Justice H. Cohen opined as follows:

'On the one hand, it is our duty to ensure that human dignity be protected; that it not be harmed at the hands of those who abuse it, and to do all that we can to restrain police investigators from fulfilling the object of their interrogation through prohibited and criminal means; On the other hand, it is (also) our duty to fight the increasingly growing crime rate which destroys the positive aspects of our country, and to prevent the disruption of public peace to the caprices of violent criminals that were beaten by police investigators' (Cr. A. 183/78 Abu Midjim v. The State of Israel, 34(4) P.D. 533 at 546).

Our concern, therefore, lies in the clash of values and the balancing of conflicting values. The balancing process results in the rules for a 'reasonable interrogation'…These rules are based, on the one hand, on preserving the "human image" of the suspect (See Cr. A. 115/82 Mouadi v. The State of Israel 35 (1) P.D. 197 at 222-4) and on preserving the "purity of arms" used during the interrogation (Cr. A. 183/78, Abu Midjim v. The State of Israel, 34(4) P.D. 533 at 546). On the other hand, these rules take into consideration the need to fight the phenomenon of criminality in an effective manner generally, and terrorist attacks specifically. These rules reflect "a degree of reasonableness, straight thinking (right mindedness) and fairness" (Y. Kedmi, On Evidence, Part A, 1991, at 25). The rules pertaining to investigations are important to a democratic state. They reflect its character. An illegal investigation harms the suspect's human dignity. It equally harms society's fabric…

[We conclude that] a reasonable investigation is necessarily one free of torture, free of cruel, inhuman treatment of the subject and free of any degrading handling whatsoever. There is a prohibition on the use of "brutal or inhuman means" in the course of an investigation (F.H. 3081/91 Kozli v. The State of Israel, 35(4) P.D. 441 at 446). Human dignity also includes the dignity of the suspect being interrogated. (Compare H.C. 355/59 Catlan v. Prison Security Services, 34(3) P.D. 293 at 298 and C.A.4463/94 Golan v. Prison Security Services, 50(4) P.D. 136). This conclusion is in perfect accord with (various) International Law treaties – to which Israel is a signatory – which prohibit the use of torture, "cruel, inhuman treatment" and "degrading treatment" (See M. Evans and R. Morgan, Preventing Torture (1998) at 61; N.S. Rodley, The Treatment of Prisoners under International Law (1987) at 63). These prohibitions are "absolute". There are no exceptions to them and there is no room for balancing. Indeed, violence directed at a suspect's body or spirit does not constitute a reasonable investigation practice. The use of violence during investigations can potentially lead to the investigator being held criminally liable (emphasis added).

The Supreme Court ruling also addressed several specific interrogation methods then used by the Israeli General Security Service, and currently used by U.S. interrogators. The Court determined that each practice unnecessarily violated human dignity and was an illegitimate interrogation method. The court rejected stress positions: "They impinge upon the suspect's dignity, his bodily integrity and his basic rights in an excessive manner (or beyond what is necessary). They are not to be deemed as included within the general power to conduct interrogations." The court also rejected sleep deprivation: "If the suspect is intentionally deprived of sleep for a prolonged period of time, for the purpose of tiring him out or 'breaking' him- it shall not fall within the scope of a fair and reasonable investigation. Such means harm the rights and dignity of the suspect in a manner surpassing that which is required." The court particularly repudiated a combination of techniques, including binding in painful positions, sleep deprivation, noise bombardment, and exposure to cold:

"Their combination, in and of itself gives rise to particular pain and suffering. This is a harmful method, particularly when it is employed for a prolonged period of time. For these reasons, this method does not form part of the powers of interrogation. It is an unacceptable method. 'The duty to safeguard the detainee's dignity includes his right not to be degraded and not to be submitted to sub-human conditions in the course of his detention, of the sort likely to harm his health and potentially his dignity' (In Cr. A. 7223/95 The State of Israel v. Rotenstein (not yet published)."

Following centuries of Jewish law, the Israeli High Court affirmed the crowning significance of human dignity, a value that underlies and encapsulates the entire law and serves as its litmus test. On the basis of this principle, the Israeli Court ruled to do away with the specific interrogation methods currently employed by the U.S. in detention facilities throughout the world, even in interrogations of detainees suspected of direct involvement in terror organizations. The Court determined that were the law to permit torture – the ultimate violation of human dignity – it would betray its own raison d'etre.

[1]Cited in Mark Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror, New York Review Books, p. 26.

[2] As Brian Whitaker points out, in attempting to manipulate detainees through sexual humiliation, the American military relies on sweeping, racist generalizations about "Arabs," from Morocco to the Gulf. While to some extent the military's sexual stereotypes about the "Arab" world are inaccurate and essentializing, the point is that the military seems to be deliberately aiming to violate Muslim and Arab cultural and sexual norms. See Brian Whitaker, "It's best use is as a doorstop," The Guardian, May 24, 2004, http://www.guardian.co.uk/elsewhere/journalist/story/0,7792,1223525,00.h...

[3]U.S. military officials described these photographs to NBC news without releasing them. Secretary of Defense Donald Rumsfeld deplored the "blatantly sadistic, cruel, and inhuman" acts depicted in the photographs, describing them – in an appearance before the Senate Armed Services Committee – as far worse than the images that circulated publicly. A transcript of MSNBC's coverage of Secretary Rumsfeld's appearance is available at: http://msnbc.msn.com/id/4945202.

[4]"Iraqi Recounts Hours of Abuse by US Troops," New York Times, May 5, 2004, p. A1. Mr. Abd told the New York Times that he had been arrested in June 2003, when he had tried to leave a taxi he was riding in near a military checkpoint. This was seen as suspicious behavior, compounded by the fact that he had served for eighteen years in the Iraqi army. Before, during, and after his time at Abu Ghraib, he was never charged with a crime. "The truth is we were not terrorists. We were not insurgents. We were just ordinary people."

[5]Several other detainee accounts, each more nightmarish than the next, are available at "Sworn Statements by Abu Ghraib detainees," http://www.washingtonpost.com/wp-srv/world/iraq/abughraib/swornstatement..., and reproduced in Danner, ibid. pp. 226-248. The following is excerpted from one testimony given in Jan. 2004:

The first day they put me in a dark room and started hitting me in the head and stomach and legs.

They made me raise my hands and sit on my knees. I was like this for four hours. Then the Interrogator came and he was looking at me while they were beating me. Then I stayed in this room for 5 days, naked with no clothes… they put handcuffs on my hand and they cuffed me high for 7 or 8 hours. And that caused a rupture to my right hand and I had a cut that was bleeding and had puss coming from it. They kept me this way on 24, 25, and 26 of October. And in the following days, they also put a bag over my head, and of course, this whole time I was without clothes and without anything to sleep on….

Some of the things they did was make me sit down like a dog, and they would hold the string from the bag and they made me bark like a dog and they were laughing at me… One of the police was telling me to crawl in Arabic, so I crawled on my stomach and the police were spitting on me when I was crawling and hitting me…
Then the police started beating me on my kidneys and then they hit me on my right ear and it started bleeding and I lost consciousness...

A few days before they hit me on my ear, the American police, the guy who wears glasses, he put red woman's underwear over my head. And then he tied me to the window that is in the cell with my hands behind my back until I lost consciousness. And also when I was in Room #1 they told me to lay down on my stomach and they jumping from the bed onto my back and my leg. And the other two were spitting on me and calling me names, and they held my hands and legs….One of the police was pissing on me and laughing on me…And then the soldier came back into the room, and the soldier and his friend told me in a loud voice to lie down, so I did that. And then the policeman was opening my legs, with a bag over my head, and he sat down between my legs on his knees and I was looking at him from under the bag and they wanted to do me because I saw him opening his pants, so I started screaming loudly and the other police starting hitting me with his feet on my neck and he put his feet on my head so I couldn't scream… And then they put the loudspeaker inside the room and they closed the door and he was yelling in the microphone.

…They took me to the room and they signaled me to get onto the floor. And one of the police he put a part of his stick that he always carries inside my ass and I felt it going inside me about 2 centimeters approximately. And I started screaming, and he pulled it out and he washed it with water inside the room. And then two American girls that were there when they were beating me, they were hitting me with a ball made of sponge on my dick. And then I was tied up in my room, one of the girls, with blonde hair, she is white, she was playing with my dick…And they were taking pictures of me during all these instances.

[6] The Taguba Report is reproduced in Danner, ibid. pp. 279-329

[7] The Red Cross Report is reproduced in Danner, ibid. pp. 251-278

[8] The International Committee of the Red Cross report, produced shortly before the Abu Ghraib scandal, reports that "Certain military intelligence officers told the ICRC that in their estimate between 70-90 percent of persons deprived of their liberty in Iraq had been arrested by mistake." More recent official estimates drop that figure to two-thirds, while estimates of "mistaken identities" at Guantánamo hover around 40 percent.

[9] Danner, ibid. p. 12

[10] "Detainees Accuse Female Interrogators: Pentagon Inquiry is Said to Confirm Muslims' Accounts of Sexual Tactics at Guantánamo," Washington Post, Feb. 10, 2005, p. A01, at http://www.washingtonpost.com/wp-dyn/articles/A12431-2005Feb9.html

[11] See "Sex as Weapon by Gitmo Guards?" Associated Press, Jan. 27, 2005, at http://www.cbsnews.com/stories/2005/01/27/national/main669845.shtml

[12] General Schmidt emphasizes that he did not find all of the F.B.I.'s accusations substantiated, including food and water deprivation. However, he also stresses that many of the techniques criticized by the F.B.I. were in fact authorized ways of undermining detainees' sense of personal worth: "His report said that some of the practices that evoked criticism among the F.B.I. agents were approved interrogation techniques, like stripping detainees, forcing one to wear women's lingerie and wiping red ink on a detainee and telling him it was menstrual blood. The unclassified version of the report, which was distributed publicly, provided the military's first acknowledgement that it had used dogs to intimidate prisoners." Schmidt also claims that the approved treatment at Guantánamo has at times been "degrading," but not "inhumane" and would not qualify as torture. See "Report Discredits F.B.I. Claims of Abuse at Guantánamo Bay," New York Times, July 14, 2005.

[13] The article reports that such treatment seems to have been driven by one of three motivations: interrogators' efforts to extract information; punishments by the military police; and at times, "little more than boredom or cruelty, or both." One of the homicide victims is described as "a slight, 22-year-old taxi driver known only as Dilawar …[who] most of the interrogators believed was an innocent man who simply drove his taxi past the American base at the wrong time." See "In U.S. Report, Brutal Details of 2 Afghan Inmates' Deaths," New York Times, May 20, 2005. Available at Globalpolicy.org

[14]Mark Danner, "The Logic of Torture," New York Review of Books, June 24, 2004. Available at, Mark Danner's web site

[15]Philip Carter, "The Road to Abu Ghraib," Washington Monthly, Nov. 2004. Washington Monthly

[16] Much of the following summary is adapted from an article by constitutional lawyer Marty Lederman, who served as Attorney-Advisor in the Justice Dept.'s Office of Legal Counsel until 2002 (He was still there when Bybee's infamous 2002 memo was issued, but he claims that he knew nothing about the memo and is not disclosing confidential information to which he was privy at the OLC). Lederman is one of the most thorough and knowledgeable commentators on the issue of accountability for Abu Ghraib. Two of his articles are available at: http://A Few Bad Apples and White house dissenbles on torture.

[17] The full text of Gonzales's memo is available at: http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationme...

[18] See Acsblog

[19] The Fay/Jones Report is available at: Findlaw.com

[20] John Conroy describes one of the seemingly universal patterns of torture – from the Roman Empire to the Spanish Inquisition: "the class of people whom society accepts as torturable has a tendency to spread." See Unspeakable Acts, Ordinary People: The Dynamics of Torture, New York, 2000, p. 27.

[21] The full text of the Bybee memo is available at the Washington Post

[22] The revised memo is available at http://USDOJ. Marty Lederman analyzes the differences between the two memos at the legal blog of the American Constitutional Society: Acsblog

Both memos rely on cases in Britain and Israel to substantiate the claim that the techniques employed by the U.S. amount to cruel and degrading treatment but not torture. The memos note that in Ireland v. the United Kingdom (1978), the European Commission on Human Rights (ECHR) determined that wall standing (stress positions), hooding, subjection to noise, sleep deprivation, and deprivation of food and drink were inhuman and degrading methods but not torture. This representation seems to be, at best, a misreading of the case and elision of its ambiguity and contentiousness. In Ireland v. the United Kingdom (1976), the European Commission of Human Rights, by a unanimous decision, ruled that these five techniques amounted to torture. The Irish government then appealed the decision to the European Court of Human Rights – not yet satisfied with the decision since no one had been held accountable for the use of torture, and no legal sanction had been issued to ensure these techniques would not be used in the future by other governments within the Court's jurisdiction. In a decision that stunned the Irish government and the international law community, the Court then overturned the Commission's ruling that the five techniques amounted to torture, ruling that they instead were inhuman and degrading treatment, but not torture. The Court's reversal of the original decision was rendered after three days of hearings in which no witnesses were present. See Conroy ibid. pp. 136-137 and 185-187.

In a case against Israel in 1997, the U.N. Committee against Torture – the body responsible for enforcing the Convention Against Torture, to which the U.S. is a party – ruled that a similar list of methods (shackling in painful positions, hooding, sounding of loud music, sleep deprivation, threats, exposure to cold air), particularly when used in combination, produce pain and suffering severe enough to be described as torture. CAT/C/SR.297/ADD.1, Conclusions, paragraphs 4-6. A summary of the U.N. decision is available at: unhcjr/cj.

The U.N. Rapporteur on Torture had already advised: "Together [these methods] may be expected to induce precisely such pain or suffering, especially if applied on a protracted basis of, say, several hours. In fact, they are sometimes apparently applied for days or even weeks on end. Under those circumstances, they can only be described as torture." E/CN.4/1997, 10 January 1997, par. 121, p. 29. Citations are taken from Btselem's 1998 report, "Routine Torture: Interrogation Methods of the General Security Service," Btselem, Feb. 1998, p. 23, available at http://B'tselem.

The U.N. decision helped sway the Israeli Supreme Court to outlaw categorically both torture and cruel, inhumane, and degrading treatment in 1999, although the Israeli Supreme Court did not agree that these particular techniques amount to torture rather than to cruel, inhuman, and degrading treatment.

Short-term and long-term studies of those subjected to similar methods ("stress positions," sleep deprivation, hooding, isolation, and sensory bombardment) by the KGB and the British in Northern Ireland suggest that such techniques produce excruciating pain and swelling, temporary 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, nightmares, anxiety attacks, insomnia, chronic depression, and suicidal tendencies. Of fourteen Irish men subjected to the "five techniques" in 1971, two died of heart attacks in their forties and the others still suffer from a range of other permanent and debilitating physical and psychological symptoms. See Conroy, ibid. pp. 6, 45, 127.

Conroy quotes from a study of KGB interrogation methods produced by two consultants for the American Defense Department in 1956, and published in the American Medical Association's Archives of Neurology and Psychiatry. The researchers, Doctors Lawrence Hinkle and Harold Wolff, describe prisoners who had been held in isolation, forced to remain in fixed positions all day, and deprived of sleep: "The prisoner becomes increasingly dejected… He gradually gives up all spontaneous activity within his cell and ceases to care about his personal appearance and actions. Finally he sits and stares with a vacant expression….Ultimately he seems to lose many of the restraints of ordinary behavior…It usually takes from four to six weeks to produce this phenomenon in a newly imprisoned man… Some prisoners may become delirious and have visual hallucinations… If he is given an opportunity to talk, he may say anything which seems to be appropriate, or to be desired by his listener, for in his confused and befuddled state he may be unable to tell what is actually true from what might be or should be true. He may be highly suggestible, and he may 'confabulate' the details of any story suggested to him… The effects of isolation, anxiety, fatigue, lack of sleep, uncomfortable temperatures, and chronic hunger produce disturbances of mood, attitudes, and behavior in nearly all prisoners. The living organism cannot entirely withstand such assaults…All of them…lead to serious disturbances of many bodily processes; there is no reason to differentiate them from any other form of torture" (emphasis added, cited in Conroy 127-128).

[23] See "Report Discredits F.B.I. Claims," ibid.

[24] Seymour Hersh, Chain of Command: The Road from 9/11 to Abu Ghraib, HarperCollins, 2004, pp. 16-17, 59-60.

[25] See http://www.hrw.org/campaigns/torture/renditions.htm

[26] "Detainee Says U.S. Handed Him Over for Torture," L.A. Times, Jan. 13, 2005. According to Human Rights Watch, after being tortured in Egypt and Pakistan Habib was sent to Guantánamo for more than two and a half years before being released without charge in January 2005. His torture allegations are supported by several other detainees, who claim "Habib was in 'catastrophic shape' when he arrived at Guantánamo: most of his fingernails were missing, and while sleeping he regularly bled from his nose, mouth and ears." See http://hrw.org/backgrounder/eca/canada/arar/3.htm. Cf. the following article from the Washington Post describing the "open secret" of the turbojet used to transfer hooded and handcuffed passengers "into or out of Jakarta, Indonesia; Pakistan; Egypt; and Sweden, usually at night." http://www.washingtonpost.com/wp-dyn/articles/A27826-2004Dec26.html.

[27] Norvell "Tex" De Atkine, a former army colonel and the head of Middle East Studies at the warfare base at Fort Bragg, writes in an introduction to the book: "It is essential reading. At the institution where I teach military officers, The Arab Mind forms the basis of my cultural instruction."

[28] Hersh, ibid. pp. 38-39.

[29] Cited in Danner, ibid. p. 18

[30] Many have rightly critiqued such over-generalizing and racist stereotypes about the entire Arab world. See Whitaker, ibid.

[31]See "Mass Suicide Attempts at Gitmo," Associated Press, Jan. 24, 2005, available at: http://www.cbsnews.com/stories/2004/11/30/terror/main658327.shtml

[32] Ibn Ezra notes the relationship between the words kavod (honor) and kaved (heavy) in his commentary on Gen. 13:2.

[33] Rashi and the Meiri (ad loc. Ber. 19a) suggest that kvod ha-briot overrides matters of property only in cases of shev v'al taaseh, nullification of a positive commandment by abstention from action, eg. an elderly person need not return lost property because it would be beneath his dignity. Rambam, however, seems to suggest that civil matters, in general, may be overridden by the principle of kvod ha-briot (Hilkhot Kilayim 10:29). Nahum Rakover observes that Rambam's reasoning is problematic; is he implying that every negative precept, if a matter of property, may be overridden? Would theft, for example, be permitted out of concern for human dignity? Rambam does not address this concern. See Nahum Rakover, "The Protection of Human Dignity," Jerusalem City of Law and Justice, ed. by Ravoker, Library of Jewish Law, pp. 210-211.

[34] Some authorities reconcile the Yerushalmi and Bavli views by suggesting that the Yerushalmi view that even a Torah precept may be overridden applies only in cases of abstention from positive action (shev v'al taaseh). See Rakover, ibid. pp. 208-209.

[35] Cf. Magen Avraham to Orah Hayyim 13(8) end.

[36] See Meiri Bet HaBehirah to Ber. 20a and Shabbat 43a. A few authorities, however, argue that care for proper burial overrides other commandments only out of respect for the living – who otherwise would be subjected to intolerable odors – rather than out of respect for the dead. There is halakhic unanimity about the charge to honor the dead, but there is difference of opinion about whether the trumping principle of kvod ha-briot – for which other commandments may be set aside – applies to the dead as well as living. See Rakover, ibid., p. 206.

[37] A few early halakhic authorities limit the principle still further, suggesting that the override only applies to those Rabbinic verdicts that have no Biblical basis or are explicitly mentioned in the Talmud. Rakover, ibid. p. 209 n. 57.

[38] This verb has the same root as the word for torture in modern Hebrew, "inui."

[39] M. Baba Metzia 4:10

[40] Cf. M. Avot 3:15, BT Sanhedrin 99a and 107a.

[41] Rather than corporeal punishment, the Talmud characteristically reinterprets this verse as referring to pecuniary compensation for the shame and humiliation caused to the victim.

[42] In Talmudic culture, slapping someone on the cheeks is considered extremely humiliating; slapping someone with the back of one's hand even more so.

[43] See Tosafot, ad. loc., Baba Kama 86b

[44] R. Yehuda disagrees, arguing that the proof-text for monetary compensation – "When men strive together, man and his brother" (Deut. 25:11) – doesn't include a Canaanite slave, since he may not enter into an assembly of Israelites and therefore there is no brotherhood with him. The sages hold that a Canaanite slave is included in "a man and his brother," and the Talmud states explicitly that the law is in accordance with the sages and not with R. Yehuda. See BT Baba Kama 88a and BT Sanhedrin 86a.

[45] Menahum Elon, "Human Dignity and Freedom in Jewish Heritage," Human Dignity and Freedom in the Jewish Heritage, The Presidential Residence, 1995, p. 25 (Hebrew).

[46] R. Naphtali Amsterdam, Peri Yitzhak 58. See Rakover, ibid. p. 200, n. 34.

[47]Tosafot's other example is the burial of a meth mitzvah to avoid the "considerable loss of dignity" that would result from the dead stinking or being eaten by dogs. The Tosafot contrasts public nudity with cases in which loss of dignity is considered "slight," as in a case in which a distinguished person is compelled to testify in a court beneath his stature. The previously cited R. Naphtali Amsterdam, in Peri Yitzhak 53, challenges the Tosafot's distinction between greater and lesser losses of dignity, and argues instead that the standard should be whether the dishonor is collective or individual. Both however, use public nudity as the exemplary case of when the legal override applies, for public nudity is an indignity that must be prevented at all costs. See Rakover's discussion of this source, ibid. p. 215.

[48] "Basic Law: Human Dignity and Liberty," passed by the Knesset, Adar Bet 12, 5752 (March 17, 1992) and published in Sefer Ha-Chukkim 1391, March 25, 1992. See http://www.myisraelsource.com/content/human_dignity_liberty

[49] In Darwish v Prison Service, the majority of the Court ruled that the right to a bed is derogated in the face of security considerations; H. Cohn gave a dissenting opinion that a bed is a bare minimum cultural need for every person, created in God's image. See HCJ 221/80, Darwish v. Prisons Service, PD 35 (1) 536.

[50] "It is firmly entrenched in our law that the fundamental rights of man 'survive' also behind prison walls, and are granted to the prisoner (and the detainee) also in his prison cell." See PPA 4463/94, Golan v. Prison Service, PD 50(4) 136, at 152-153. Cf. the comments of Vice-President of the Supreme Court, Haim Cohen: “It is the right of a person in Israel who is sentenced to imprisonment (or who is lawfully detained) to be incarcerated in conditions that allow him to live a cultured life.” HCJ 221/80, Darwish v. Prisons Service, ibid. at 538. Cf. Menahum Elon, ibid. p. 26

[51] HCJ 540/84-546, Yosef et al. v. Director of the Central Prison in Judea and Samaria, PD 40 (1) 567 at 572-573.

[52] State of Israel v. Guta, cited in Menahum Elon, ibid. p. 23.

[53] Emphasis added. Comments of Justice Haim Cohn. Katlan et al. v. The Prison Service et. al.(1980) 34(3) PD 294 at 305-307. Cited and translated in Nahum Rakover, Modern Applications of Jewish Law, Library of Jewish Law, 1992, pp. 199-202.

[54]HCJ 5100/94 Public Committee Against Torture in Israel v. The State of Israel. Full text of the decision is available at: http://www.jewishvirtuallibrary.org/jsource/Politics/GSStext.html. The applicants to the Court in this case included the Public Committee Against Torture in Israel, who presented a blanket challenge against physical and psychological interrogation methods used by the General Security Services, and the Association for Civil Rights in Israel (ACRI), who specifically challenged the practice of "shaking." There were also five individual applications heard by the Court: 1) Wa’al Al Kaaqua and Ibrahim Abd’alla Ganimat, whose attorney petitioned to the court to prevent them from being subjected to physical methods of interrogation after their arrest in 1996; 2) Hat’m Abu Zayda, who was arrested in 1995 and subsequently convicted of activities in the military branch of the Hamas terrorist organization. Abu Zayda was subjected to sleep deprivation, shaking, beatings, and use of the "Shabach" position (binding in a stress position) during his interrogation. Zayda was found to be involved in recruitment and construction of Hamas’ infrastructure, and was specifically involved in kidnapping Israeli soldiers and carrying out attacks against security forces. The Opinion states: "It has been argued before us that the information provided by the applicant during the course of his interrogation led to the thwarting of an actual plan to carry out serious terrorist attacks, including the kidnapping of soldiers." 3) Abd al Rahman Ismail Ganimat was arrested in 1997 and, according to his petitioners, tortured through use of the "Shabach" position," excessive tightening of handcuffs and sleep deprivation. He was charged and convicted at trial for his involvement in numerous terrorist activities and in the deaths of many Israeli citizens. He was instrumental in the kidnapping and murder of an IDF soldier was also involved in the bombing of the Cafe "Appropo" in Tel Aviv, in which three women were killed and thirty people injured. GSS investigators claimed that through information revealed in his interrogation, they were able to find an additional explosive device, similar to the one used to blow up "Appropo," in Ganimat's village. 4) Fouad Awad Quran was arrested in 1997 and claimed that he was tortured through sleep deprivation and the "Shabach" position; 5) Issa Ali Batat, arrested in 1999, claimed that physical force was used during his interrogation. He was indicted for "hostile activities" in the Occupied Territories.

Btselem – the Israeli Center for Human Rights in the Occupied Territories – published a report in 1998 detailing the methods used by the GSS prior to 1999 as well as stories of prisoners who underwent interrogation. The 1999 Supreme Court case includes two applicants directly involved in terrorist activities, perhaps as a way of forcing the issue of whether coercive interrogations are permitted. The Btselem report argues, however, that most cases in which "ticking bomb" justifications were invoked before the Supreme Court were later found to be unsubstantiated. The report follows several stories of detainees who were interrogated with a "ticking bomb" justification and never indicted for any criminal offense (pp. 31-32). The full text of the report is available at: from B'tzelem.

© 2005 by Rabbis for Human Rights-–North America. All rights reserved.
Article by Melissa Weintraub © Melissa Weintraub. All rights reserved.
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Kvod Ha-Briot: Human Dignity in Jewish Sources, Human Degradation in American Military Custody