Torah Against Torture: A Sample OpEd

Every New Yorker, every American, every lover of Israel, indeed every decent human being should worry about the genuine threat of terrorism. It is not racist and not hysterical to say that a sophisticated, vicious, global enemy is working right now to kill innocent people on the streets where they live. Thwarting them is among the highest priorities of any legitimate American or Israeli government.

But honest anxiety has run amok when religious teachers start using Torah to justify torturing suspected terrorists. In particular, Rabbi Michael Broyde’s recent essay in the Jewish Week arguing that, in Halakhic terms, our current wartime pressures obviate normal moral codes and entail the “general suspension of our ethical sensibilities,” seems to us unspeakably misguided.

Readers should know that this argument is unsupported by the weight of Jewish sacred texts. Contrary to Broyde’s approach, the Torah and its leading interpreters agree that war might sometimes be a necessary evil, but is not-the-less evil for being necessary. Authoritative teachings have tightened – not relaxed – ethical limits on damage to life and property during battle, and have sought to cultivate our compassion and minimize our cruelty.

The great medieval Bible interpreter Nachmanides epitomizes this trend in his comments on the required purity of Israelite war camps [ad. Deut 23.10]: “The Torah commands in situations where sin is most prevalent. When camps go out to war, soldiers eat any revolting thing, steal and rob, shamelessly commit adultery and engage in all kinds of perversity. The most naturally virtuous person dresses himself in cruelty and rage when the camp attacks its enemy. Thus the Torah commands: guard yourself from all evil.”

Instead of suspending our moral compass during war, as Broyde would have it, we must be twice and three-times more vigilant to keep from losing our best selves amid war’s inherent brutality. Accordingly, we believe that Jewish sources would favor a near total ban on torture, rather than the wide ranging endorsement that Broyde asserts.

Broyde’s argument boils down to this: since in war it becomes ethically permissible to inflict the most extreme, lethal violence on enemy soldiers during battle, logically it must be permissible to inflict less extreme, non-lethal violence – mere torture. After all, if shooting a soldier in the head might be ethically proper, then how could it be wrong to deprive him of sleep, bind him in painful positions or chase him with dogs?

But this logic is completely countered by the Torah’s own approach to wartime conduct. Despite the permission to kill, the Torah itself “addresses the evil inclination” by legislating against battlefield rape and forbidding wanton destruction of property. It manifestly does not believe “all is fair in war.”

The principal Jewish justifications for violent force are self-defense and pre-emption, forestalling an impending attack. The central formulation of pre-emptive self-defense is articulated in the law of the rodef, or “pursuer.” When one person threatens another’s life, or threatens to rape, it becomes proper to use any means necessary – including homicide – to foil the attack. But Jewish law unambiguously restricts this license to preempting an impending crime. The rodef argument can never license retaliation after damage has already been done or after the threat of further violence has passed. And the law of the rodef permits the use of lethal violence only when necessary, but forbids killing if any less extreme steps might do the trick.

(Broyde has claimed elsewhere that rodef is a criminal-law concept and cannot apply to wartime. While there are significant differences between the contexts, we would note that contemporary authorities like R. Shaul Yisraeli have drawn analogies between the law of rodef and battlefield ethics (not necessarily toward conclusions we would favor), and the Israeli Supreme Court similarly applied this precedent to the exact case of torture.)

Given the contours of the rodef principle, we find it bizarre that Broyde ignores the distinction between the killing of armed combatants and the treatment of prisoners in interrogation rooms. An enemy soldier holding a gun, or a terrorist strapped with an explosive belt simply cannot be compared to a prisoner who is already disarmed, in custody and at our mercy. Even if that prisoner was trying to kill you an hour before, once the prospect of attack has passed, there are no grounds in Jewish law for inflicting violence upon him.

Fine, one may say. But this now-detained prisoner may possess information that would save lives in the future. Shall we horsewhip him on the possibility he might reveal where Hamas bomb master Muhammed Deif is hiding? Shall we put him in an ice-cold shower until reveals some detail that will give our side a strategic advantage? Shall we keep him awake for days on end until he agrees to inform against other terrorists?

The right answer is no, according to Jewish legal and moral reasoning.

By all accounts, information obtained under duress is very frequently false, confessed simply to get the torturers to stop. Our people learned this on the rack in the Spanish Inquisition, if not before. Probably for this reason, Judaism legislates a nearly absolute prohibition on self-incrimination – stronger, indeed, than the American 5th Amendment. (Where American law permits one to keep silence to avoid incriminating one’s self, in Jewish law, most criminal confessions are actually inadmissible.)

And since the information extracted is most likely useless, torturing such a prisoner amounts to pointless brutalizing of another human being, who bears God’s image as surely as we do.

Judaism’s hallmark claim is surely that every human life is infinitely valuable. As the Talmud recounts: R. Akiva claimed that “love your neighbor as yourself” is the key verse in Torah; his junior contemporary, Ben Azzai trumps him by saying that more important still is Genesis 5:1: “the Torah is the story of the descendents of Adam” – that is, of all human beings [Yerushalmi Nedarim 9.4]. In a modern expression of Jewish life, the IDF’s creed of tohar haneshek, or “purity of arms,” asserts that armed force should be used only for circumscribed missions “without inflicting unnecessary harm to human life and limb, dignity and property of both soldiers and civilians, with special consideration for the defenseless.”

Torturing a shackled prisoner mocks our pious claims about the sacredness of human dignity of the defenseless.

To justify torturing suspects on the grounds that they might yield some valuable piece of intelligence is to use the Torah to apologize for self-interested brutality. This strategy implies that we should be ready to degrade and dehumanize, and if necessary, destroy disarmed adversaries when it serves our strategic interest. This is what Hamas says when it blows up a cafe. This is what the Zarqawi murderers do when they kidnap Western journalists and aid workers in Baghdad and behead them for everyone to see on the internet. It must never be the Torah’s moral teaching about war.

What about the legendary “ticking bomb” cases? What about the suspect who knows just which subway train is about to blow? What if the FBI had only tortured Mohammed Atta in August, 2001? Everyone intuits the exceptional nature of such scenarios, in which extreme treatment might prevent a catastrophe. This claim is logically cogent. As for the practical usefulness of this example? It happens in James Bond movies all the time; but it has rarely, if ever, happened in real life. Much more common, by incalculably large margins, is that combatants or suspects – even if they are genuine malefactors – are abused beyond any reasonable proportion to the threats they pose.

The scenarios of espionage fantasies are one thing. Moral reasoning about real ethics during real wars is another. Let’s not derive one from the other. The logical possibility of some extreme example cannot determine the law for the 99.99% of cases our governments actually confront.

State-sponsored torture is a moral horror and international crime. And religious apologies for such torture warp the Torah. As religious teachers, we are proud to study and teach a tradition that forbids this abhorrent practice and safeguards the humanity even of those who would not show us the same respect.

Rabbi Jeremy Kalmanofsky is rabbi of Congregation Ansche Chesed in Manhattan.
Rabbi David Rosenn is executive director and founder of Avodah: the Jewish Service Corps.
Rabbi Melissa Weintraub is the former Director of Education and Organizing for Rabbis for Human Rights-North America.