An Edah Editorial By Rabbi Aryeh Klapper
Torah Does Not Support Torture
"All's fair in love and war." This pithy proverb
reflects a common belief that what soldiers do during wartime is not bound by
ethical considerations. And while one expects little from a silly saying, it
is shocking to hear this same point articulated by a prominent scholar. In a
recent article, Rabbi Michael Broyde, argues that the halakhic idea of war entails
"the general suspension of our ethical sensibilities." Essentially,
he is saying that Halacha itself would accept the position that "all's
fair in war." No one would argue that war is anything but hell, but that
does not mean that all is fair. Broyde's assertion is flatly opposed to both
biblical text and oral law. The Bible contains laws specifically aimed at maintaining
a Jewish army's ethical sensibility during wartime. Deuteronomy 21:10-14 provides
rules for the treatment of female captives, and Deuteronomy 20:19-20 regulates
the destruction of enemy trees. The oral law codifies and expands these into
exhortations against wanton destruction. Rabbinic tradition also emphasizes
that "peace is necessary even in time of war," meaning that one must
not allow the state of war to erode basic values and ethical priorities.
Accepting Rabbinic ethics does not mean, of course, that Judaism
endorses all the details of the Geneva Convention. But Broyde's statement that
"there is no logical reason that halacha would categorically prohibit duly
authorized wartime torture" knocks down a straw man; with the possible
exception of idolatrous worship, halacha has no categorical prohibitions. Even
adultery and killing are permitted when the stakes are high enough. The right
question is whether halakhah would sanction any plausible contemporary torture
regime. The right answer to that question is no.
There are several reasons why no is the right answer. First,
many experienced intelligence officers believe that torture is useless. From
the Spanish Inquisition to the present day, false confessions produced by torture
have wasted massive government resources and fostered destructive suspicions
that tear apart communities. Since halacha considers humiliating and degrading
someone tantamount to murder, and recognizes that pain can be worse than death,
torture seriously violates the Torah, especially given the significant risk
of such torture's uselessness. In addition, legalizing torture will almost certainly
lead to numerous cases of unjustified torture.
Broyde follows Alan Dershowitz's suggestion that we legalize
torture only when approved case-by-case, although unlike Dershowitz he relies
on the military to police itself rather than requiring judicial review. But
as we saw recently in Abu Ghraib or with regard to government eavesdropping,
such processes are sooner or later evaded or else degenerate into mere formality.
Legitimating some torture without proper outside controls would lead inexorably
to a rise in illegitimate torture, and halacha therefore prohibits doing so.
Finally, 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 brutalities and savage inhumanities of
our enemies must not blind us to the impressive and genuine moral commitments
to human dignity, or to use the Rabbinic term, kavod habriyot. Short of a genuine
threat to survival that can be met no other way, we must not respond to the
former by undermining the latter Advocates of torture always bring up the "ticking
bomb" case. Suppose, they say, a terrorist has hidden a nuclear explosive
in New York City, which will go off within a day unless police convince a captured
terrorist to tell them where it is. Shouldn't the police be permitted to torture
the terrorist to find out where the bomb is, thereby saving millions of lives?
Almost certainly, but, as the American legal proverb has it, hard cases make
bad law. That torture may be morally acceptable in farfetched hypothetical cases
does not mean that it should ever be legal. In real life, the alleged terrorist
would not have been tried, the existence of the bomb would not be proven, and
the police would likely waste precious time and resources following a lie. If
a policeman actually tortured a genuine terrorist and thereby prevented a nuclear
holocaust, I might recommend promotion rather than prosecution. Yet hypothetical
possibility is irrelevant to law and a repugnant means to override ethical concerns.
Broyde himself goes so far as to apparently justify reprisal
killing of unarmed prisoners, using the argument that Jewish law requires no
belligerent to behave better than his enemy. Here again I respectfully disagree.
Jewish tradition sees each individual human life as infinitely precious, and
therefore forbids killing an innocent even to save many others. Nothing in the
Jewish laws of war permits deliberately murdering people who pose no threat.
The article provides a rationale for terrorism. If you can summarily execute
non-threatening enemy combatants for strategic advantage, it's a short step
down the slippery slope to the execution of civilian populations eating in a
restaurant or sitting on a bus. Jewish law does legitimate killing enemy soldiers
during war, but it also recognizes that even the most meritorious killing corrupts
the killer. The midrash describes how the frontline soldiers of the original
conquest of Canaan under Joshua return to create endemically violent societies.
Reality demands spiritual as well as physical sacrifices. But the reality that
we cannot avoid getting our hands dirty does not mean that we can blithely play
in moral muck or descend to the moral level of our enemies.
Rabbi Aryeh Klapper is Dean of the Center for Modern Torah Leadership and
Instructor of Rabbinics and Medical Ethics at Gann Academy