Jewish law theoretically allows torturing captured enemies, so long as it helps to save lives. This was the definitive conclusion given over the past decade by four Orthodox rabbinic scholars who also serve as American law professors or Israeli government legal advisors: Michael Wygoda, J. David Bleich, Michael Broyde, and Itamar Warhaftig.
This stance will be shocking to some and certainly disputed by others, particularly in light of the unsettling findings of the Senate Intelligence Committee’s majority report on CIA activity since 9/11. Yet even if one disagrees with the position, it’s important to understand these claims if we want to advance our dialogue about one of the great ethical dilemmas of our time.
Everyone agrees that Jewish law strictly prohibits “punitive torture” against criminals, “intimidating torture” against political dissidents, or “extraction torture” to prompt confessions. But as Jonathan Crane has shown, contemporary Jewish opponents of torture go further in asserting that even so-called “preventative interrogative torture,” intended to secure critical information to prevent planned terrorist activity or other acts of violence, is also forbidden as it deprives a person of their basic human dignity.
In 2005, for example, Rabbis for Human Rights-North America (now called T’ruah), supported by the Union of Reform Judaism, invoked the notion of humans sharing God’s divine image to condemn all torture practice. That same year, the Conservative movement’s Rabbinical Assembly also invoked Jewish history and tradition to assert, somewhat feebly, that “serious questions have been raised about the ethics of torture… even under emergency circumstances” and that “only by preserving the rule of law and the rights of the individual does any nation earn its place as a moral leader on the world scene.” While trying to remain supportive of American troops, the message was clear: the interrogation tactics of the CIA go against Jewish values.
Religious defenders of preventative interrogational torture, though, have argued that these values, however precious, are overridden by the obligation to save lives. Yet this mandate is morally complex as well. Broyde, for example, claimed that the “wholesale suspension of the sanctity of life that occurs in wartime also entails the suspension of such secondary human rights issues as the notion of human dignity, the fear of the ethical decline of our soldiers, or even the historical fear of our ongoing victimhood.” This logic would justify water boarding and similar interrogative tactics. But Broyde is quick to note that just because some actions might be allowed under Jewish war ethics, it doesn’t make them strategically prudent or legal under national law or international accords. He further stresses that any such action must be approved through a professional chain of command.
Yet even if Broyde is correct regarding his broader claim about Jewish war ethics (a disputed argument), the particular implications of his “war necessity” thesis for torture make many uneasy: Would the “wholesale suspension of the sanctity of life” also allow torturing a young child to extract information from their parent? This thesis, moreover, demands a system for determining when we are in a state of war, something not so clear in a world of asymmetric battles and covert operations. Would every CIA or MI6 mission against some unknown enemy be granted these lenient standards of warfare?
Bleich, Warhaftig, and Wygoda, for their part, propose an entirely different model. They invoke the “law of the pursuer” (rodef) commandment that obligates people (including third parties) to save the lives of innocents. While classically applied to a person engaged in an overt act of violence, advocates contend (again, it’s disputed), that this category would even apply to terrorists in captivity or others who have knowledge of a planned attack. Bleich further stipulates that one can physically coerce someone to fulfill the Biblical command of “not standing idly by the blood of your fellow” and ensure that the interests of justice are protected (including the eradication of evildoers and the prevention of crime.) Bleich’s essay, however, limits himself to the case of the “ticking bomb,” in which a terrorist plot is in the advanced stages of execution. Even those who oppose the general use of torture might then allow for it in such extreme cases, if it would be effective.
This extreme case, however, might not accurately reflect the state of the broader “war on terror.” One could retort, as claimed by three former CIA directors and others in their published response to the Senate report, that during the period following 9/11, “It felt like the classic “ticking time bomb” scenario—every single day.” This claim raises a broader question regarding the gathering of intelligence, a practice that requires one to assemble pieces of evidence over a period of time. Can the “law of the pursuer” category sufficiently cover this type of protracted intelligence chase? And what about cases in which the intelligence agencies are unsure whether the captive possesses significant information?
Wygoda, for his part, claims that in such a case, one cannot impose torturous methods unless there is a solid basis for believing the captive is hiding something significant and that an attack is being planned. Warhaftig is more lenient, yet he too fears that potential abuse of this line of reasoning and others requires a review board system. Indeed, even defenders of the CIA admitted this week that many mistakes were made, particularly in the initial period after 9/11, when they had “little experience or expertise in capture, detention or interrogation of terrorists.”
Among those who condone torture, the general agreement is that these tactics should be employed only when there is no other recourse and when one can assume they will be reasonably effective tools. Yet does torture really succeed in extracting information that might have become known under gentler conditions? Many, of course, have doubted such claims, among them Jewish legal critics of torture like Rabbi Aryeh Klapper and Dov Zakheim, a former senior defense official in the Bush administration. They’ve passionately argued that given the paucity of evidence supporting the effectiveness of preventive interrogational torture and the well-founded worries of abuse, Jewish law prohibits such tactics.
As Klapper put it: “Endorsing torture fundamentally desecrates God’s Name. The role of Judaism is to raise moral standards in the world, not to legitimate a lowest moral common denominator.” The real-world efficacy of these tactics, though, cannot be determined by rabbis, and depends on the assessments of political and military experts who review the (often classified) evidence.
This, of course, was the purpose of the Senate committee investigation, yet the immediate outbreak of partisan bickering suggests we may never reach greater clarity regarding the findings. The differences of opinion aren’t merely over ideology or interpretation, but basic facts regarding when and how intelligence was procured. Perhaps it’s time for rabbinic authorities to unite and declare that the failure to advance bipartisan discourse on one of America’s greater ethical dilemmas of our time is, in itself, a moral travesty.
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Rabbi Dr. Shlomo M. Brody directs the Tikvah Overseas Students Institute, writes a column for the Jerusalem Post, and is a postdoctoral fellow at Bar Ilan University Law School. He is also the publisher of the “Jewish Law Live” Facebook group and YouTube channel. His book, A Guide to the Complex: Contemporary Halakhic Debates, won a 2014 National Jewish Book Award.