A Jewish Perspective on the Torture of Prisoners

Rabbi Gary S. Creditor 
February 3rd, 2006

September 11th, 2001 made Americans think differently. We had new categories for human events, more tragic than ever before. At the earliest moments came the questions about who knew what, when they knew it and what could they have done about it. Those answers are still being sought today at trials. We ask again those questions when public officials make statements referring to "next time." We want to know that they will avert the threat. We really want them to say: "There isn't going to be a next time." How can they do that? How can they come close to such a statement? They need hard, cold, correct information about precisely who, what, where, when, and how. How will they get that information? The subject of my remarks is the use of torture of prisoners for the purpose of extracting information. 

Living in America, we have had the luxury to think that distance will protect us. We live far from battlefronts. The media sanitizes the news so we don't feel the life and death of the reality of war. I was sensitized to this subject forty years ago when, because of Viet Nam, the issue of war and peace and how to fight war was the subject that disrupted most of my college education. At that time I produced source book for ATID, then the college age USY entitled: The Jewish Attitudes to War and Peace, The Body and Civil Rights.  I still have it. I reviewed it. I have searched other places. I discovered two things:

1. There is hardly any Jewish writing on the subject of torture. It does not seem to exist as a subject matter in Jewish legal literature. They do speak a great deal of honorable warfare between two clearly identified combatants. Who knows what else they did? It isn't mentioned.
2. So many of the writers forty years ago and those of today are totally naïve. Some, clearly, have not assimilated the reality that exploded upon America on 9/11.

Representing that posture I found this piece written long ago by Abba Eban (about a Papal encyclical) that sounds like some of today's writers: "There is also a sense in this wondrous age of what man can achieve in his redeeming moments of grandeur. As we look out on the human condition our consciences cannot be clean. If they are clean, it is because we do not think enough. It is not inevitable that we march in hostile and separated hosts into the common abyss. There is another possibility of an ordered world illuminated by reason and governed by law. If we cannot yet touch it with our hands, let us least grasp it in our vision." 
Because of 9/11, because I walked the streets of a deserted Jerusalem in December, 2001, because Ruby and rode buses there in the fall, 2004 and looked at every person on the bus wondering…, I am much more in tune with words like the following from Reinhold Niebuhr:
"If the democratic nations fail, their failure must be partly attributed to the faulty strategy of idealists who have too many illusions when they face realists who have too little conscience."

And the words of Winston Churchill: "I am looking for peace. I am looking for a way to stop war; but you will not stop it by pious sentiments and appeals. You will stop it by making practical arrangements." These differing visions of reality are echoed in the disputes over the people detained in Guantanamo Bay, Cuba, the intelligence gathering bruha that recently erupted and which President Bush is artfully trying to rename, and if there are or aren't secret prisons in Europe. Torture is another subject in the same category. There are two distinct perceptions:

1. That war is fought honorably according to the Hague Conventions, specifically that of October 18, 1907, the Geneva Convention of August 12, 1949, and the United Nations Convention against Torture of December 10, 1984. Those documents define an "honorable war," where combatants agree to certain rules that intend to reduce the horrors of that war and to protect innocent, civilian non-combatants. Or,
2. That war is dirty, ugly, without boundaries, without conscience, where the brutalization of civilians, subterfuge and the potential of mass casualties is itself the "way of war." There are no rules. "All is fair in love and war. "What is a Jewish answer to this question that only gets worse with a potentially nuclear Iran? Can we torture prisoners in order to divulge information to thwart evil aims?

There are two applicable sources that I have identified in all our vast literature.

1. In Sanhedrin 72a which is paralleled in other parts of the Talmud we learn:
   "If someone is coming to kill you, rise early and kill him first." This principle, in turn, was based on the law of the intruded. "If a thief is seized while tunneling and he is beaten to death, there is no blood guilt in this case. If the sun has risen on him, there is blood guilt" (Exodus 22:1-1). Thus, it is permissible to kill an intruder - with no warning, no consideration of stopping him with a lesser level of violence - when it occurs at night, lest the robbery lead to the murder of the innocent inhabitants. Those who flew the planes into the devastation of September 11th, the Palestinian and Iraqi suicide bombers, the terrorists in England, fit that scenario. The "rise up early" of the Talmud is the extraction of information even through torture of those who have the information in order to learn who, how, when and where and thwart their evil aims. This I see as Churchill's reference to "practical arrangements."
2. In the Mishnah of Sanhedrin 8:7 we learn of the law concerning a rodef - pursuer:
   If 'Reuven' sees 'Shimon' running after 'Levi" in order to kill him, then 'Reuven' may kill 'Shimon' in order to prevent the crime. This law is explained in detail in our law codes. Among the comments by Rabbi Moses Iserles is that a person who endangers the masses is considered a rodef and may be killed to save everyone else. We find ourselves fighting a war with a new definition. We now know from experience that the 'Shimons' of the world are out there running us after us ' Levis' to kill us. It is not the murder of the one's but of the millions. Jewish law empowers Reuven to kill Shimon. That empowerment must of necessity include the power to extract the pertinent and timely information to save the Levi's, us. For Judaism the protection and preservation of innocent life, is paramount.

Judaism would never countenance torture for torture's sake, done maliciously, needlessly, to demean and dehumanize prisoners, whether they be legitimate POWs or not. Terrorists are not POWs. While Israel's Supreme Court has imposed limits on the latitudes of the security forces, there is what is called the defense of necessity, when there is a ticking time bomb. Then their prerogatives are widened. Security agents receive some, general information about a terrorist attack. If they don't get specific enough information, the suicide bomber could wreak havoc. There is no time for niceties. The masses of the public are at risk. The family whom you let them murder could well be your own. In Israel, confronted with such a ticking time bomb, the security forces can use stronger force, even torture, to extract the information in order to save lives. 

If there was a threat against our water supply, to the nuclear reactors that make our electricity or a bomb that could kill in mass numbers, and there was someone sitting in Richmond jail that had the key to the secrets and getting it could save our society, what would we want our security forces to do? Recite a law code? Hide behind legalisms meant for the honorable that shackle our defense from the despicable? Or take action, even extreme action, and save our world? From the categories of rodef and the principle of self-defense, and the preservation of society, there is a very strong case to be made that Jewish law would countenance the use of torture in order to extract the necessary information. That does not give license for the disregard of prisoners' welfare nor to perpetrate any other degradation. 

Our law codes don't discuss torture because it could not conceive of human beings not fighting honorably. The classical categories of making war don't easily accommodate our new reality. The threat can come from within more easily than from without. We expect, we demand, that our authorities do everything that precludes and prevents a 'next time.' Judaism does give us some categories to help us respond and preserve ourselves. It moreover gives us the ultimate vision that neither war nor torture will occur anymore, that no one will be harmed in all of God's holy mountain and peace will reign. May that prayer come true in our time.

Shabbat Shalom.