Like just about everything that takes place in Congress, Senate’s Report on Torture by the CIA that was released this week is probably partisan – at least that is what everyone who does not like it seems to be saying. It was put out by a Democratic-controlled committee on its way out of power about events that took place under policies of the previous, Republican administration.
Just consider if the roles were reversed: What if it was a report by a Republican controlled committee about policies from a prior Democratic administration? We would likely be hearing the same voices that are currently crying fair or foul on opposite sides.
Keep in mind that this does not mean that information in the report is not accurate. Just because a person has a bias does not make that person wrong. So how are we to know what to think?
Unfortunately, much, most, or perhaps even all of what we think we know about torture comes from television and movies. Jack Bauer employs torture to great success in every season of “24.” The movie Zero Dark Thirty suggests that the location of Osama Bin Laden was made possible through “enhanced interrogation techniques.” If you have seen the movie, I am not sure that you could call what it shows on screen anything but torture. Most James Bond movies involve some sort of torture scene – although 007 is usually able to keep his secrets.. And the list goes on.
We also hear politicians and talking heads disagreeing vociferously on the subject. Those who oppose it call it torture and say that it does not produce any actionable intelligence. Those who support it call it “enhanced interrogation techniques” and claim that it saves lives.
I personally do not know whether torture works. I doubt that there is anybody in this room who does. If we are honest with ourselves, we ought to admit that our opinions on the matter are influenced more by our our underlying political leanings and our consumption of entertainment than by personal experience or our familiarity with the facts.
This is a real problem.
In a democracy, we the citizens are responsible for the actions of our government. If the U.S. government is for the people, by the people, then we are complicit in what the CIA does, and we have a moral obligation to acknowledge this, and potentially to do something about it.
So how do we really feel about torture, and what are willing to have our government do in our names?
Let’s get past the political, partisan posturing. Let’s try to set aside what we think we know from television and movies.
Let us try to clarify some of the issues around torture so that we can better understand what our values truly are. Let us consider also how our Jewish tradition informs these issues in a way that enables us to take a more sophisticated and informed position.
The first question must be: what constitutes torture?
In this morning’s Torah portion, Vayeshev, the sibling rivalry between Joseph and his brothers spirals out of control. As we heard earlier, the brothers’ hatred becomes so pitched that they decide to kill him. Before they commit fratricide, they throw their annoying little brother into a pit. This is how the Torah describes it:
…they stripped Joseph of his tunic, the ornamented tunic that he was wearing, and took him and cast him into the pit. The pit was empty; there was no water in it. Then they sat down to a meal. (Genesis 37:23-25)
The medieval commentator Rashi cites a midrash that explains that not only did the pit not have any water, it was filled with snakes and scorpions.
What have they done to him? The brothers have humiliated Joseph by stripping off his coat. They have deprived him of food and water, highlighted by the Torah’s juxtaposition of the parched pit with the brothers’ picnic. And according to the midrash, they have terrorized him by putting him in with poisonous animals.
In this case, the brothers are not trying to get any intelligence out of Joseph. It is straightforward revenge. They are getting back at him because they feel he has wronged them.
But perhaps we need a more specific definition. According to a summary of Article 1 of the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment “torture is the intentional infliction of severe mental or physical pain or suffering by or with the consent of the state authorities for a specific purpose.”
I am not going to read the entire list of tactics that the Senate report contains, because some of it is pretty disturbing. But it does include things like keeping prisoners awake for 180 hours consecutively, waterboarding, threatening to harm family members, keeping prisdoners in total darkness for extended periods of time, exposure to extreme cold, withholding of medical care, and so on. “Enhanced Interrogation Techniques” or “Torture?” Do we rally need to argue about terminology? Does the name matter?
The second question is a critical one. Are there some circumstances in which torture could be permitted?
We might say, on the one hand, that torture in any circumstance is wrong and should be avoided. While the Constitution protects American citizens on American soil from cruel and unusual punishment, this is really a universal moral value that applies equally to all human beings everywhere.
On the other hand, what about the “ticking time bomb” scenario. A bomb is set to go off somewhere in the city, and we have a person in custody who knows where it is and how to disarm it. Many, if not most of us would agree that torturing that person would be acceptable if it would produce information that could potentially save hundreds of lives.
This is the fundamental question: Am I categorically opposed to torture, in which case there is no need for further discussion, or am I willing to consider the possibility that torture might be justified in certain circumstances?
Jewish law does not address this question directly, but it does deal with a related issue. According to Jewish law, self-incrimination is not permitted. Under no circumstances may a person’s own testimony be used against that person. The mid-twentieth century Rabbi and Professor Saul Lieberman, possibly the greatest Talmudist in history, taught that “the purpose of the rule [banning self-incrimination] was to eliminate the possibility of forced confessions and testimony motivated by fear…[Early Jewish law] insisted on a strict standard for the admission of evidence and eliminated the possibility of torture to compel confessions at a time when torture and other cruel practices prevailed in the Roman court.” (Elijah J. Schochet and Solomon Spiro, Saul Lieberman: The Man and His Work, Jewish Theological Seminary Press, 2005, pp. 209-210.)
In other words, there was concern that a person would falsely confess after being tortured. So to prevent this from happening, confessions were ruled to be inadmissible. A conviction in Jewish law requires testimony from two valid witnesses.
Similarly, the Fifth Amendment to the U. S. Constitution grants citizens the right to not self-incriminate. This is not as strict a standard as Jewish law, mind you. We are all experts on the Fifth Amendment, by the way. Whenever the cops on a television police drama arrest a suspect, they have to read him his Miranda rights, “You have the right to remain silent. You have the right to an attorney…”
That requirement came about as the result of a 1966 Supreme Court case, Miranda v. Arizona. In it, Chief Justice Earl Warren traces the origin of the principle of non self-incrimination. “We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times.” In his footnote, Chief Justice Warren cites Maimonides’ thirteenth century law code, the Mishneh Torah.
Another Supreme Court decision (Garrity v. New Jersey, 385 U.S. 493 (1967)) issued one year later elaborates on the principle.
…the Constitutional ruling on self-incrimination concerns only forced confessions, and its restricted character is a result of its historical evolution as a civilized protest against the use of torture in extorting confessions. The Halakhic ruling, however, is much broader and discards confessions in toto, and this because of its psychological insight and its concern for saving man from his own destructive inclinations.
Of course, this concern with self-incrimination and torture is only in the context of confessing one’s own guilt. What if the purpose is not to determine guilt, but rather to gain information that would save lives?
The Jewish concept of din rodef, the law of the pursuer, teaches that if a person is being pursued by another with the intent to kill, that person is permitted to use physical means to protect him or herself. Din rode also stipulates that one may use force to prevent the pursuer from harming another person. This opens up the possibility that torture could be used if it will result in saving lives from an imminent attack.
This leads to our second question. How effective does torture need to be? What percent of the time must torture yield helpful information? How many innocent people are we willing to torture to find the ones with actionable intelligence?
The problem with this question is that there is no way of knowing whether torture will be successful until after it has taken place. To make an ethically informed decision, we still have to have an idea about success rates, and we have to be prepared for the possibility that it may not produce results.
This needs numbers. If you knew that 50% of the time, torture would yield important information, and 50% of the time a tortured person would not provide any useful information, would you condone it? What if it was 20% of the time? 10%? 1%? We have got to draw the line somewhere.
What about the type of intelligence? There is a difference between information that leads to stopping an impending terror threat and information about the location of training camps. How many lives must be saved to justify torture?
Finally, we know that our justice system makes mistakes. How many innocent people are we willing to torture to get to the ones who have information?
Of the 119 tortured prisoners described in this week’s Senate report, twenty six of them are considered to have been wrongfully detained, in other words, altogether innocent. That is 22%. Is that a tolerable percentage?
We come from a religious and ethical tradition in which Abraham, our forefather, challenges God about God’s plan to destroy the cities of Sodom and Gomorrah because of their wickedness. Certain that there must be some righteous people in those societies, Abraham boldly asks: “Shall the judge of all the earth not perform justice?” He then argues that a small fraction of innocent people ought to save the lives of a thoroughly wicked populace.
The question of torture is almost the opposite of Abraham’s. How many possibly guilty people are we prepared to torture to possibly save the lives of innocents? That is what this comes down to.
Ours is a tradition that has at its core a respect for the dignity of every human being. All humans are made in the image of God.
We have explored several questions this morning that I hope will help us get past the politics, and past the television shows to the fundamental questions about what we are willing to have our government do in our names.
It is essential for us, as citizens of our country, and as Jews who have inherited a strong ethical tradition, to face difficult issues like the use of torture in the fight against terror with open eyes and with honesty.