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Tortured Arguments

December 15, 2014 | By Shlomo Brody
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In the wake of the Feinstein Report on the CIA’s post 9/11 activities, Rabbi Shlomo Brody, founding director of the Tikvah Overseas Seminars, takes a look at some arguments about when Jewish law condones the use of torture and their applicability to the post-9/11 landscape. Brody refuses to accede to the notion advanced by many of American Judaism’s liberal denominations that torture is always opposed to Jewish values. Instead, as Rabbi Brody writes in Tablet,

[Rabbis] Bleich, Warhaftig, and Wygoda… invoke the “law of the pursuer” (rodef) commandment that obligates people (including third parties) to save the lives of innocents. While classically applied to a person engaged in an overt act of violence, advocates contend (again, it’s disputed), that this category would even apply to terrorists in captivity or others who have knowledge of a planned attack. Bleich further stipulates that one can physically coerce someone to fulfill the Biblical command of “not standing idly by the blood of your fellow” and ensure that the interests of justice are protected (including the eradication of evildoers and the prevention of crime.) Bleich’s essay, however, limits himself to the case of the “ticking bomb,” in which a terrorist plot is in the advanced stages of execution. Even those who oppose the general use of torture might then allow for it in such extreme cases, if it would be effective.
 
This extreme case, however, might not accurately reflect the state of the broader “war on terror.” One could retort, as claimed by three former CIA directors and others in their published response to the Senate report, that during the period following 9/11, “It felt like the classic “ticking time bomb” scenario—every single day.” This claim raises a broader question regarding the gathering of intelligence, a practice that requires one to assemble pieces of evidence over a period of time. Can the “law of the pursuer” category sufficiently cover this type of protracted intelligence chase? And what about cases in which the intelligence agencies are unsure whether the captive possesses significant information?
 

The question, therefore, is not one of the ethical framework from which we approach our circumstances, but just what sort of exigencies Americans faced after 9/11. As Brody concludes, “[t]he differences of opinion aren’t merely over ideology or interpretation, but basic facts regarding when and how intelligence was procured.”

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