Tortured policy

Tortured policy


Torture is in the news, thanks to the Senate Armed Services Committee. In mid-April, it released its long-delayed report confirming the use of torture by American interrogators on suspected al-Qaida detainees held at Guantanamo Bay and elsewhere. The torture was sanctioned at the highest levels of the Bush administration, as confirmed by the Obama administration’s subsequent release of memos authorizing it.

Torture – psychological and/or physical – is an all-too-frequent tool in interrogations, especially when those being interrogated may have information that could save lives and time may be of the essence. Israel, for example, is often accused of using such techniques in the hope of thwarting the next terrorist attack.

Keeping the Faith: One religious perspective on issues of the day If ever there is a serious non-partisan investigation of the Guantanamo allegations, a major question for investigators will be whether torture was used on prisoners when time could not possibly have been of the essence. Most of the detainees at Guantanamo Bay, after all, have been there for over seven years.

For this column, the question is what, if anything, Jewish law has to say about torture.

The answer, the simple one, is precious little. That is not because halacha necessarily approves of torture. The treatment of prisoners was not much of an issue in biblical times because imprisonment was of short duration.

In the Torah, there are two instances of imprisonment in Israel. The first was that of the son of an Egyptian man and a Danite woman who cursed God. (See Leviticus 24:12.) Then there was the man who gathered sticks on Shabbat. (See Numbers 15:34.) In both instances, imprisonment was temporary, pending a decision on how to punish the offender.

Punitive imprisonment was rare. There were other ways to punish offenders, such as stoning to death those who committed capital crimes and lashing those who committed lesser offenses.

It is in the rules regarding lashing that we can begin to discern what the Torah’s attitude (and hence the attitude of the halacha) might be toward torturing and debasing prisoners (the emphasis is on “might,” however, as we will soon see).

Deuteronomy 25:2-3 states, “And it shall be, if the wicked man deserves to be beaten, that the judge shall cause him to lie down, and to be beaten in his presence, by a certain number, as his guilt warrants. Forty lashes may he give him, but no more, lest if he should exceed [this number]…, that your brother be degraded in your sight.”

The sages of blessed memory reduced that number to 39 lashes maximum, to avoid the possibility that a person would be whipped beyond 40 lashes by a miscount. They also insisted that the man to be whipped undergo a physical examination to determine whether he could withstand the number of lashes ordered by the court; if he could not, the number was reduced to an amount he could tolerate. (See BT Makkot 22a and succeeding pages for a full discussion of this. The rule also involves a “double jeopardy” clause, in that it forbids completing the originally ordered number of lashes after the fact because it was later discovered that the person could have withstood the full punishment.)

From this, it is clear that degradation is out of the question and we can infer that torture, per se, also would violate Torah law.

We can infer the latter from another source, as well – the prohibition against self-incrimination. The Torah insists on the testimony of at least two eyewitnesses for a conviction to be possible. (See Numbers 35:30, Deuteronomy 17:6 and Deuteronomy 19:15.) If a minimum of two eyewitnesses are needed to convict, it follows that a confession has no probative value and thus is inadmissible. It follows, too, that torturing a prisoner to elicit a confession is pointless.

Maimonides, in his law code, goes even further, seeing here a prohibition against entrapment. He forbids the testimony of witnesses who were planted with the defendant in order to see him commit a crime and then give evidence against him. (See Mishneh Torah The Laws of Evidence 17:3.)

Clearly, while it could be argued that torture in some form (lashings, for example) may be used as a punitive device, torture for the purposes of eliciting a confession is forbidden. However, what about the person who has information that could prevent a crime or an act of terrorism from happening? If that person refuses to give that information, may he or she be tortured?

On the basis of the above, the answer would seem to be no. To get around this, the sages invented something they called “the king’s law” and then extended it to rabbinic courts in times when no king sits on Israel’s throne. As summarized by the 14th-century halachist Rabbi Nissim Gerondi (known as the Ran), “whatever needs to be done to promote social welfare may be fully accomplished by the king,” even if the actions taken violate Torah law. That power, wrote the Ran, extends to rabbinic courts in times when no king exists. (See his Sermons of the Ran, no. 11.)

Two centuries before the Ran, Maimonides codified the right of a king to “imprison [offenders] and beat them with rods to defend his honor.” (See MT, The Laws of Kings and Their Wars, 3:8.) Kings also may behead murderers who were unable to be convicted by a halachically guided court. Says Maimonides (MT Kings 3:10), “He may execute many on one day, hang them, and leave them hanging for many days in order to cast fear into and destroy the power of the wicked of the world.”

This is in direct violation of a Torah commandment, however. Deuteronomy 21:22-23 states, “And if a man has committed a sin deserving death, and he is to be put to death, and you hang him on a tree, his body shall not remain all night upon the tree, but you shall bury him that day….”

Obviously, then, the king is seen by the rabbis as having extralegal powers. This belief is basically unchallenged in halachic literature. At least one rabbinic authority, Rabbi Moses Sofer (a/k/a the Chatam Sofer), did challenge it, however, citing the rule that we derive law only from the Torah. (See his Orach Chayim, Responsa no. 208.) Since the Torah does not offer any example of a king acting outside Torah law, no such authority can be implied from any other source, including other biblical books.

Indeed, the Torah (Deuteronomy 17:18-20) suggests that the king has no such right. Most rabbinic authorities agree with the Ran, however, that these verses in Deuteronomy are meant to keep the king from abusing the broad powers granted him, rather than restricting him to Torah law alone.

Given the assumption of the king’s law by rabbinic courts, it is doubtful that most halachic authorities would completely forbid psychological torture if the situation actually warrants it. They even might approve some degree of physical abuse in such cases, albeit strictly controlled and cognizant of what the person being tortured can endure.

It is unlikely, however, that any halachic authority would permit the more severe forms of torture employed at Guantanamo Bay and almost certainly would forbid their use on prisoners who no longer have any useful information to give.