Rabbi Avi Weinstein


In halacha, torture, waterboarding on April 23, 2009 at 1:17 am

If there is any doubt regarding the Halacha’s attitude toward the permissibility of the odious practice of torture and its dubious utility, read this. Dov Zackheim, an Orthodox rabbi, and the former comptroller of the Dept. of Defense under the Bush administration might disabuse you of the feeble excuses that the Bush administration has been using, up until now that is. The abstract reads:

The international outcry and the rulings of both the United States Supreme Court and Britain’s Law Lords regarding prisoner abuse have serious implications for Jews in the military, whether that of Israel, America, or elsewhere. The uncertainties relating to the actual information that might be gleaned from prisoners subjected to torture, and the likelihood that such abuses would generate both hillul ha-shem and eivah, the latter resulting in danger to Jews everywhere, militate against the use of torture in all but the most extreme circumstances. Only when it is absolutely clear that a prisoner possesses information that could result in the near-term loss of life, the so-called case of the “ticking bomb,” is it arguable (my emphasis) that prisoner abuse might be tolerated.

By the way, it is by no means clear that even in the case of a “ticking bomb” would torture yield the results necessary, so, therefore there are opinions on both sides of this issue. The article is long and worthwhile and written by a member of Bush’s defense establishment in 2006.

  1. I am sorry to see that you, and Dov Zakheim, have oversimplified what is really a complex set of issues. His analysis is rife with red herrings and straw men. My meager learning makes me unqualified to debate Jewish text with either of you, but even if I essentially rely on his reading of those texts, I find gaping flaws in his reasoning.

    In discussing whether terrorists should be – and are legally entitled to – the protections of the Geneva Conventions, Zakheim begins his analysis in a reasoned fashion and then says “it is noteworthy that the United States is perceived as being especially prone to treating enemies as moral inferiors.” This is a non sequitur. I would happily make the case that the enemies who have been tortured with the sanction of the U.S. government – I don’t stipulate that the harsh treatment was torture, but I’ll address that later – are moral inferiors. But the implication that concluding that such individuals are not entitled to the protections of the Conventions is no different than “treating enemies as moral inferiors” is an abuse of another kind, an abuse of logic and language. If one uses such tools carelessly or, worse, dishonestly, it is hard to have a rational discussion about anything, let alone a charged subject like the treatment of terrorists.

    Zakheim then quotes torture-victim Vladimir Bukovsky, who wrote that “torture is the oldest scourge on our planet.” Few would argue that torture is a scourge of long tenure, but the assertion does not address the question of what constitutes torture. It also begins Zakheim’s conflation, and casual mixing, of the various purposes for which torture is employed. To me, the three most obvious purposes are to punish, to take sadistic pleasure, and to garner actionable intelligence. Again, few would argue – and the Bush administration certainly never did! – that torture in service of punishment or sadism is acceptable. But immediately after the Bukovsky quote, Zakheim discusses the Torah’s position on “corporal punishment.” Unless he is using this term metaphorically – and based on what follows, that does not appear to be the case – this is all irrelevant. Only Jewish sources that address (or from which can be gleaned) the legitimacy of torture for the purpose of gathering intelligence are relevant to the subject at hand.

    In the section entitled “Physical Abuse Of Prisoners In Bible And Talmud, he writes that “[s]uch abuse was geared to humiliation and retribution.” One could certainly argue that the harsh treatment of prisoners sanctioned by the Bush administration caused humiliation, but it is simply false that it was “geared” to humiliation – and retribution is utterly irrelevant. And please don’t jump to Abu Ghraib, as Zakheim frequently does. The abuses that took place there were not sanctioned. Criminal investigations had been underway since 2003 and many soldiers of the 320th Military Police Battalion had already been charged under the Uniform Code of Military Justice with prisoner abuse well before Seymour Hersh “broke” the story in “The New Yorker” in 2004. Of course, many soldiers were removed from duty, several faced court-martials, and those convicted were dishonorably discharged and in some cases sentenced to prison.

    Zakheim makes no serious effort to address the question of whether “cruel, inhumane or
    degrading (CID) treatment” is equivalent to torture. The fact that Bukovsky believes that CID is “is no different from torture pure and simple” carries some weight, but to go from this to the statement that “it is difficult to argue with someone who [sic] been at the receiving end of CID that it somehow is not torture,” as if that settles the issue, is preposterous. I say this with all due respect to Bukovsky. Taking Zakheim’s words literally, I agree: not only would I find it “difficult to argue with someone” like Bukovsky about his opinions on torture; I think it would be highly inappropriate. My only disrespect is directed at Zakheim’s argumentation. Is that all it takes, one victim of CID who sees it as tantamount to torture, to prove the equivalence? And what if I find ten other victims who see it otherwise? This is no way to draw conclusions.

    (cont’d in next comment)

  2. Senator Kennedy said that “Saddam’s torture chambers reopened under new management, U.S. management.” As someone who has watched several videotapes (available online) of the Torture that took place at Abu Ghraib under Saddam, I see this equivalence as contemptible slander. The kind of Torture that included such Abuses as cutting off limbs and slicing through tongues – all encouraged, nay, demanded by Saddam and done in the name of intimidation, punishment, retribution, and sadism (not that such Torture would be conscionable even if the ends were noble) – is a completely different animal than the actions taken by Americans. Whether we are talking about the harsh treatment of prisoners undertaken with Bush’s blessing at Guantanamo Bay or without it at Abu Ghraib, it is an abomination to suggest that even the worst abuses were in any way comparable to what took place in the bona fide torture chambers of Saddam Hussein.

    The evoking of Senator McCain as proof positive that torture doesn’t work is an invalid argument even when applied to the brave man himself! Does Zakheim – do you – not recall McCain’s poignant portrait during his acceptance speech at the Republican National Convention of the shame he felt when, eventually, he was “broken” by the torture that he’d endured? The story demonstrated McCain’s humility and the beauty of how another prisoner’s love and support saved him when, evidently, McCain was contemplating suicide. But McCain’s own account also demonstrated that he eventually succumbed to torture (i.e., that the torture worked). As with Bukovsky, I say this with not an iota of judgment toward McCain (just the opposite), only to show that Zakheim does not make a legitimate attempt to debate this charged subject on its merits. He relies on emotionalism, cherry picking, and other non-serious devices.

    In the case of R. Akiva, the coercion’s purpose was to force idol worship not, say, the revealing of the names of confederates. But, you might say, the point of that story is to show that “the pain of lashes … is more terrifying to a prisoner than death.” I understand the logic and, in this discussion, am willing to accept that conclusion, but it is sophistry to insert “i.e. torture” after “the pain of lashes.” Earlier in the piece, Zakheim writes that “there are those who argue that ‘torture’ can be defined narrowly.” Surely all would agree that the question isn’t whether the definition of torture can – and should – be limited in scope (otherwise, the word has no meaning), but how narrow that scope should be. The pain of lashes clearly qualifies. Calling someone a jerk clearly doesn’t. Adding the phrase “i.e., torture” after “the pain of lashes” does nothing to address what legitimately qualifies as torture.

    I have only addressed a fraction of the material in Zakheim’s piece and not gotten to some of the most important issues, such as hillul ha-Shem and eivah. I could say much more – and if you are interested in continuing the discussion, I will try to commit it to (electronic) paper – but this is certainly long enough for now. I don’t pretend to imagine that I have changed your mind about the permissibility of the actions taken by the Bush administration – that wasn’t even my intention – but I do hope that I have introduced an iota of doubt where you saw none, or at least opened your mind to the possibility that the issue is not as crystal-clear and uncomplicated as you suggested. I frankly found more demagoguery and anger in your post than nuance and reason. I get it: you think what was done was odious and you ARE angry about it. But there are people of goodwill, people who care just as much as you do about justice and morality, people who have done a lot of thinking about this difficult subject – people far more knowledgeable and articulate than I – who have drawn very different conclusions than you and Zakheim have.

  3. Waterboarding according to the United States definition was not only considered torture, it was prosecuted as such. There are numerous testimonies that say very little of value was yielded from these “sessions”. I have also spoken to Eliot Cohen (Former senior advisor to Condoleeza Rice) regarding these activities. He is willing to concede that in some cases torture may work, but nevertheless, the cost is greater than the benefit. These are not liberals and would be offended by the label.

    I agree that the Halachic parallels sometimes are a stretch but I would not consider them disingenuous–but rather open to interpretation. One must be slightly suspicious when asked to rely on Cheney’s opaque assertions that waterboarding works and has worked without documenting one fact.

    I purposefully quoted Jews who are not only fervent conservatives, but active extensions of the Bush administration’s policies. Eliot is a professor at Johns Hopkins and has to be considered a security expert. So far, you have offered “people who know far better than I”, and by implication me as well.

    I think you are going to have to do a little better.

  4. A disappointing reply, Ravavi. The condescension of “I think you are going to have to do a little better” is stunning.

    I did not refer to “liberals” a single time. I expressly said that I was just scratching the surface of the topic. My comments were neither an apologetic for torture nor a full-throated endorsement of the actions of the Bush administration. My modest hope was that I had “introduced an iota of doubt where you saw none, or at least opened your mind to the possibility that the issue is not as crystal-clear and uncomplicated as you suggested.”

    I did not merely rely on anonymous “people far more knowledgeable” than I – your “people who know far better than I” is both an inaccurate quotation and a distortion, btw – nor did I merely dismiss the Halachic parallels as “disingenuous” with a wave of my hand. I engaged specific statements with well-reasoned arguments.

    My reference to those with more knowledge than I was not a rhetorical trick but an admission of my limitations. I could track down the opinion pieces written by Andrew McCarthy (who led the prosecution against Sheikh Omar Abdel Rahman and eleven other jihadists, for terrorism that included the first bombing of the World Trade Center and even more ambitious plots), John Hinderaker, and Victor Davis Hanson, for starters, but your attitude doesn’t give me much incentive. Forgive me if I don’t wish to be graded on whether you think I have done “a little better” the next time.

    I will provide a link to a rather unlikely source, Natan Sharansky, not because he supports coercive interrogation techniques – he most certainly does not – but because he introduces some much needed balance into the discussion:

    “One must be slightly suspicious when asked to rely on Cheney’s opaque assertions that waterboarding works and has worked without documenting one fact.”
    Who has asked you to do such a thing? But since you bring it up, are you unaware that Cheney has “formally asked the CIA to take steps to declassify those memos [showing the effectiveness of waterboarding] so we can lay them out there and the American people have a chance to see what we obtained and what we learned and how good the intelligence was”? I note in passing that the utility of harsh interrogation techniques (call them “torture,” if you prefer) and the question of whether they should be employed are two separate, though related, issues.

    I spent hours crafting a measured, reasoned response to your post and in what, five minutes, you ignore my specific arguments and – though conceding that “the Halachic parallels sometimes are a stretch” – continue to engage in appeal to authority (aka name dropping) and dismiss me as if I am your student or child. This is the reason one so rarely finds people engaging in rational debate anymore.

    Almost all of my friends are liberals. I consider myself a classical liberal and, interestingly, many of Bukovsky’s co-founders and colleagues in the American Foundation for Resistance International are neoconservatives. You don’t know me but I know of you through a mutual friend. I have great regard for you and consider this a missed opportunity, for both of us, to engage in a respectful dialogue about one of the most important issues of our day.

    Shabbat Shalom,
    Ron Weiner

    P.S. I hope you never end up there but I’d happily visit you in the hospital.

  5. Dear Ron,
    Fist let me apologize for my tone, although I intended no condescension, it was at least a cheap shot. It was 45 minutes before shabbat and I didn’t want to ignore your comment. I should have waited until I could have given a more considered reply. So please accept my apology, I meant no offense.

    I’ll try to be more specific, and I would offer that the goal of McCain’s torture was to get him to be used as a propaganda piece for the North Vietnamese, not to extract information.

    You are right, the issue is complex, and maybe much could be forgiven on September 12, 2001, but laws are there to curb passions. If, in fact, some of these memos surface that demonstrate the efficacy of enhanced interrogation techniques, one still would have the unanswered questions–were they the only way to extract this information, and were they the most effective way?

    More interesting in Zackheim’s article were the references to the Responsa of the Israeli rabbinate on proper conduct in the military. It is always an issue to take an exilic tradition and apply it to matters of state.

    Akiva’s torture, and for that matter the martyrdom of Hanina Ben Tradyon’s purpose was for them to renounce their heritage, much more in keeping with the goals of Chinese Communists,–as you point out, it wasn’t to extract information. The Chinese seemed to think that most of the info received under duress, was not useful. It does, however, show that people who are resolute and grounded in a belief system are seen to be fiercely resistant to coercive methods.

    Another point of Zackheim and others is that as soon as an individual is captured, plans change and even if the individual doesn’t lie, chances are the information is outdated. Might there be a situation where coerced information is of value? I assume there may be. That is why I allowed for the possibilty in the case of a “ticking bomb” that some halachists indeed do justify the use of torture, but others, even with the possibility of saving lives are doubtful because of the reprecussions on our own value system and how we are seen in the world. This goes to the issue of eiva which you did not directly address.

    The crux of the issue as I understand it is whether enhanced interrogation was more effective than the conventional interrogations used by the CIA. So far, on very little data, it looks like they leaped to that conclusion before adequately researching it.

    I can accept the fact that they felt they were literally under the gun, but in retrospect the same could be said about interring Japanese and Italian Americans during WWII, or for that matter the British sending Jews of German descent to Australian convict colonies during the war. (Allright that was a low blow)but even if the information extracted was critical to saving American lives, what we can’t know is whether that was the only way to get the information.

    Zackheim’s article tried to extract a Jewish perspective on keeping some kind of human moral perspective especially when the business one is in is either protecting or killing. I think he came to the material with an open mind. Quite honestly, a serious treatment might require a book length review and not an article. It was also written right after Abu Greib which obviously shocked us all, but part of what was happening in those prisons was not only humiliation but enhanced interrogation as well. One might assume that the humiliation was a handmaiden of the interrogation–though assume is the operative term here. What is troubling is that it seems that much of this emerged from conscious policy decisions and was not merely the result of a few soldiers getting their jollies out. I don’t know what the truth is, and I acknowledge the complexity, but in the end it seems we both agree that this may not have been the road to travel.

  6. Dear Avi,

    I happily accept your apology: as they say in Australia, though probably not as often when it was one big penal colony, “No worries.” Honestly, I was relieved to read your latest comment, because it restored my faith that reasonable people can discuss charged subjects without rancor. My best friend and I often disagree about politics, but it rarely gets personal. One even occasionally changes the other’s mind, and in any case, the respectful interchange is both enjoyable and edifying.

    You and I do share some common ground on these complex issues. As you said, in so many words, the primary goal behind torturing McCain was to coerce phony confessions that could be used as propaganda. The torture inflicted by the Chinese Communists, the Soviet Union, and Akiva’s persecutors was in a similar vein. If the intent of the abuse, whether CID or torture, is to extract bogus confessions or induce the subject to renounce his heritage or country, I absolutely agree that it is immoral and not even useful. If the purpose is to punish, to indulge sadistic urges, or to exact retribution, again it is immoral, meah achooz. If the purpose behind the harsh interrogations of Khalid Sheikh Mohammed had been any of the above, I would absolutely condemn it. I would shed no tears for the man, but I would in no way condone such behavior.

    The “unanswered questions,” as you called them, are good ones, and there are many others. The proper conduct of the Israeli military and the issues of hillul ha-Shem and eivah are complex and crucial subjects. As you said, “a serious treatment might require a book length review and not an article.” (And that’s just to tackle the issues from a Jewish perspective.) I didn’t address them before because I found it too difficult to do so without, in a word (or three), writing a book. But I think about them often and, though I don’t pretend to have all the answers, I’ll address them briefly.

    My take on the issue of eivah – and please correct me if I am using the term incorrectly – is that I am more concerned about the repercussions on our own value system than on the potential incitement of hostility. Why? Certainly not because I think the latter is unimportant, but only because the empirical evidence tells me that there will be incitement, and hostility, irrespective of the facts. The conduct of the IDF in Jenin was exemplary – and many Jewish lives were lost in a noble effort to limit the number of innocent Arab casualties – but the world still hears “Jenin” and thinks massacre and Jewish savagery. Don’t get me wrong: I am proud of the way the IDF acted, though I’m conflicted by the lives lost in remaining true, perhaps to a fault, to Tohar HaNeshek. I believe that making decisions in hopes of convincing the world of Israel’s essential goodness is a fool’s errand and, moreover, that it ultimately endangers more Jews than it protects. There were valid arguments for leaving Gaza, but I hope that those who believed that leaving would improve Israel’s image now realize how wrong they were. I’m not suggesting we give up the PR fight; maybe with better hasbarah, Israel can make headway. But example after example tells me that Israel, and for that matter the U.S., can maintain the highest moral standards in the world and still be seen as an aggressor and treated as a pariah.

    A few quick personal words: I thought you were in D.C., but given your comments about racing the Shabbat clock, evidently I was wrong. (Israel?) The funny thing is that, out of respect, I rushed to finish my previous comment before Shabbat had begun in what I’d thought was your time zone. Oops. And the “mutual friend” I alluded to is actually my wife, Andrea Hoffman, who still misses having you as a colleague at Hillel.

  7. Your wife is simply the best. Give Andrea my regards. I was actually writing from Kansas City, but I hastened to respond because of the seriousness of your reply. In regard to Jenin, I feel your pain, and I beieve that the response from outside of Israel will always be the same regardless of Israel’s behavior, however exemplary. I do feel, however, the US with a black President may be different–especially with Europe, and Africa. Also, with Moslem countries such as Indonesia and of course Turkey.

  8. Thank you. She feels the same way about you. She talked about you often enough that, lo these many years later, I still feel like I know you – though I’m not sure we ever even met. I gave her your regards … and then she enjoyed reading them herself.

    I’m not a fan of identity politics, but if the color of our president’s skin actually helps with those countries, I’ll take it. Frankly, I don’t share your optimism. I’ve seen kvelling from some countries but very little in the way of (positive) objective results. I didn’t vote for Obama and I’m not pleased with the direction our country seems to be going, but I’d be happy to be proven wrong. (I’m pretty sure I was wrong once before. I believe it was in the late ’70s.)

    Bush actually had/has a lot of fans in Africa, in large part because of the billions he committed to combating AIDS there. He has his detractors there (and everywhere), of course, but I think people overestimate how much the occupant of the White House affects anti-American sentiment. President Clinton was beloved and respected across the globe, but that didn’t prevent the series of terrorist attacks (from the first WTC bombing to the attack on the Cole) or move China and North Korea in positive directions. Again, I’d be happy to be wrong about President Obama.

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