Kingdom of Priests

Kingdom of Priests

Does the Torah Permit Torture?

Andrew Sullivan now seeks to invest his hyperventilating stance on torture with the dignity of a papal encyclical. He complains: “The point of torture is to violate the integrity of the human person and to coerce the will itself.” As I’ve already told you, I have the impression that much of the prosecutorial fervor on this subject, while it includes some genuine moral anguish, is also an extension of a general vindictiveness that “Fathers” in the political realm evoke from “Sons.” 

What does the Torah say about torture in a war context?
The authentic view is, in a word, realist. I’ll save more detailed analysis for later. For now, let’s go to the conclusion of a serious thinker, Rabbi Michael J. Broyde, who teaches law at Emory University (from an article in the Jewish Week a few years ago).
He asks, for example, about “water torture in the hands of a team of skilled professionals who believe that this process will extract information of value and save the lives of others.”

Answer please?

[T]orture is permissible and consistent with halacha [Jewish law] in all situations where there is a proper, thoughtful military chain of command (the higher up a decision goes, the more thought tends to be put in) and no other reasonable alternative is available….[T]he 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.


Furthermore, the protection of our own soldiers and civilians undoubtedly trumps the claims of human dignity by those who seek to do us evil. International law, which Jewish law generally expects its adherents to obey, is limited in its scope to those who pledge themselves to its obedience. Neither Hezbollah nor Hamas nor al Qaeda are signatories to the Geneva Convention and do not conduct themselves in accordance with its provisions. They certainly do not treat prisoners they capture in accordance with its requirements (as shown by the recent murder of two captured American soldiers in Iraq). Thus we are not required as a matter of international law to treat their prisoners in accordance with the convention on the treatment of prisoners.


In sum, according to Jewish law and ethics, torture in the context of war is no more problematic than death itself, and is permitted by the general license to wage war. There is no logical reason that halacha would categorically prohibit duly authorized wartime torture as a method for acquiring information otherwise not available, in order to save lives in the future. Of course, not all conduct permitted as a matter of Jewish law is wise or prudent; the consideration of which policies work in what settings is fundamentally not a question of Jewish law or ethics, but one for military and political leadership.

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Larry Yudelson

posted April 26, 2009 at 1:49 pm

Did America torture prisoners because the technique was desired by “skilled professionals” who believed that the process would “extract information of value and save the lives of others?”
Or did America torture prisoners because a vice president wanted confirmation of his belief that there was a link between Saddam Hussein and Al Queda?
Not until that question is answered can we determine whether the halachic opinion of my old friend Michael Broyde is even relevant to this conversation.
One point that David Klinghoffer consistently misses in his discussions, as I pointed out in my book, “How Would God REALLY Vote: A Jewish Rebuttal to David Klinghoffer’s Conservative Polemic,” is the relevance of Jewish historical memory to questions of practical memory.
On the issue of torture, Klinghoffer plays deaf to the role that torture played in the Spanish Inquisition in extracting false confessions from Jewish conversos. Jewish history teaches that torture is about forcing confessions, not extracting information of value or saving lives. The American chapter in the history of torture only reinforces the sad lessons of Jewish history.
As Andrew Sullivan has clearly documented, the precise forms of torture imposed by the Bush Administration on its prisoners were taken from Communist regimes, who used them against American soldiers to extract false confessions.
And from the fact that individuals were waterboarded 182 times, we can deduce that torture had nothing to do with effectiveness and urgency, which is why I am inclined to belief the reporting from the McClatchy newspapers that interrogators wanted to extract a specific confession from the prisoners.
The most important question now, however, is not whether the Torah might have permitted torture, but whether American law permitted it? Unlike the political system envisioned by the Torah, in America the president, the vice president and all underneath them are responsible to the rule of law. Let us hope that Justice Department gives the question of prosecution its necessary, serious deliberation.

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posted April 26, 2009 at 6:11 pm

David: Andrew Sullivan now seeks to invest his hyperventilating stance on torture with the dignity of a papal encyclical.
How is it any less appropriate for a Catholic to argue his stance by quoting a Papal encyclical than it is for a Jew to argue for his stance by quoting a rabbi? Of course, in a pluralistic, secular society such as ours, it is neither the Catholic, Jewish, nor any other reasoning, but the rule of law, including international law, that counts. I might point out in passing that the Jewish perspective on torture is not as cut-and-dried, even among the Orthodox, as David seems to imply here.
I have the impression that much of the prosecutorial fervor on this subject, while it includes some genuine moral anguish, is also an extension of a general vindictiveness that “Fathers” in the political realm evoke from “Sons.”
This is an ad hominem since, while it admits some “genuine moral anguish”, it still effectively dismisses criticism of the Bush Administration’s use of torture as the whiny carping of spoiled kids wanting to bash Daddy. As if torture, whoever used or authorized it, were no big deal, not a matter of moral significance. In any case, calling those against torture names does nothing to make an actual argument.
If we want to argue about torture, fine; but let’s not take swipes at others when they quote their religious tradition and then turn around and quote ours; and let’s drop the puerile name-calling and focus on substance.

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Francis Beckwith

posted April 26, 2009 at 9:22 pm

Poor Andrew does not understand that if by will he can redefine marriage to suit his desires, the U. S. government, by will, can redefine torture to sort its ends. You can’t cherry-pick the natural law without harming your own virtue.
Nevertheless, I am delighted that Andrew has decided to embrace an understanding of human ends and purposes not dependent on consequences or people’s desires or wants. I hope it results in his conversion.

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David Klinghoffer

posted April 26, 2009 at 9:53 pm

A great point on the arbitrariness of Sullivan’s position, Frank. Thanks.

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posted April 27, 2009 at 3:23 pm

Essentially, the rationale of Rabbi Broyde seems to be, “Well, if you were otherwise pretty sure to kill them, then torture is actually better than the other alternative…”. I agree none of those groups mentioned are signers of the Geneva Convention, and I don’t believe they should be given enemy combatant status. However, as I vet with a child in the military, I worry that our policy will encourage other nations to torture captured warriors… and that brings me to a classic Catch 22 – would I prefer my child be slain or tortured upon capture by an enemy??? I hope my country would treat prisoners with a modicum of dignity afforded to human beings generally. I don’t want to be waterboarded even once, and certainly not 183 times, even though somewhere around the 20 mark, I might get the idea it’s painful but not deadly… I don’t understand why we don’t give the terrorists a fair trial followed by imposition of sentence up to and including a swift execution if they’ve been found guilty of a crime, or if not, just let them go? Isn’t that the ethical thing to do? If they were citizens of this country, the US Constitution would forbid holding them for years without some pretense of a charge, but it appears we believe non-citizens are less human than we Americans. Sad.

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Yori Yanover

posted May 1, 2009 at 4:06 pm

Klinghoffer’s habitual fast and easy treatment of our rabbinic tradition is notorious. (See my chapter “Yes, But Is It Jewish?” in my recent book, co-authored with Larry Yudelson, How Would God REALLY Vote: A Jewish Rebuttal to David Klinghoffer’s Conservative Polemic.) But while in the past he made the effort to at least cherry pick citations and malign the ideas of others into submission (his essay on drugs in the Torah can be fully enjoyed only under the influence of LSD) – in the case of defending torture his argument comes down to “This rabbi said so in the Jewish Week.”
So while normally all one has to do to show Klinghoffer’s erroneous reading of Jewish texts is go back to those texts and examine them, in this case there are no texts to examine, only the assumption supposedly put out by Rabbi Michael J. Broyde. It wasn’t easy finding the original article, the JW has removed it from its website for some reason. But I found an unauthorized copy on a Muslim blog – don’t ask…
Except that after reading Broyde’s article, it turns out that he, too, doesn’t use a lick of Torah to justify torture, other than to declare: “In a recent monograph published by the Center for Jewish Studies at Queens College as well as a forthcoming chapter in an Orthodox Forum volume, I have shown that torture is permissible and consistent with halacha.”
So, the guy Klinghoffer relies on completely and singularly to justify torturing people – also relies on a guy, himself in this case. I’m not much of a scholar, but even I can see the bottle is full of snake oil after shaking it vigorously a couple of times.
Except that we do have excellent rabbinic sources on the sole point Klinghoffer says that Broyde says that he said someplace else, namely that since the person in our charge has already forfeited his or her life, we might as well waterboard the sucker.
Nahmanides on the first chapter of Genesis, puts together the two fundamental reasons why torture is prohibited by the Torah.
He cites the prohibition on eating the blood of a kosher animal saying that we are entitled to benefit from the carcass after the slaughter, but not from the soul, which dwells in the blood of the animal. Mind you, this is an animal that has forfeited its life, yet we may not abuse its soul.
Then he cites Bva Matzia 32b: “The prohibition on torturing animals is a Torah-level commandment.”
Are we really permitted to treat another human being worse than an animal? Have we lost all notion of what the term Image of God means in terms of respecting even a condemned man?
Rashi in his commentary on Sanhedrin 45a explains why we execute women fully dressed, saying that the humiliation of the condemned person is worse than death. We must offer them, therefore, a “fine death” (mitah yafah), which includes a quick, painless execution, and avoiding insult and degradation. This is in the case of a person convicted of a capital crime, not just an enemy combatant captured on the battlefield!
Klinghoffer’s eagerness to support the most vicious impulses of our political landscapers is the domain of himself and his therapist. But his insistence on soiling our rabbinic tradition with his dark desires must be refuted and condemned by sane people everywhere.

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David Klinghoffer

posted May 1, 2009 at 5:12 pm

Hello Yori Yanover: your two Talmudic citations are not relevant. They deal with situations where nothing is to be gained, in terms of saving lives, from the giving of pain to an animal or a person. The question being debated is whether torture is permissible *to save lives*.
Don’t worry. After I’ve digested Rabbi J. David Bleich’s essay on torture in Tradition, the RCA publication, which takes much the same view but with Rabbi Bleich’s usual incomparable sourcing, I’ll have more to say on this.

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posted May 11, 2009 at 12:13 am

The pasuk 1:6 in Shoftiem shows that when Adoni Bezek was captured they cut of his thumbs and big toes (clearly a form of torture) which in that particular case the Ralbag clearly condones as a mida kinged mida so kal vichomer in a pakuch nefesh situation.

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