Talmud v. Torture: The Jewish Case Against “Enhanced Interrogation”

The release last week of the so-called CIA “torture memos” brings this country one step closer to a day of reckoning over the most flagrant human rights abuses of the Bush administration, though it remains to be seen whether that day will look like Nuremberg, a Truth and Reconciliation Commission, or a venting belch of gas as the machine lurches forward.

At a time when the nation struggles to recover its moral footing, there is plenty of talk about “the religious voice.” Presumably, because religion is viewed as a source of bedrock values—though we know it is frequently as likely to scramble as to true the moral compass. What we really seem to be seeking is the “prophetic voice” of religion, which (at least according to the model of the Hebrew prophets) was never universally embraced, but was instead a kind of taut lifeline, thrown from the purity of the wilderness into the quagmire to be grasped by those with the diligence to pull themselves out.

Jewish legalism, at its best, is a means of actualizing the dictates of the prophetic voice through a regimented system of behavior: a code of conduct thoroughly imbued with an ethos and a morality. The most articulate condemnations of torture that Judaism has to offer are therefore presented most effectively as deeply spiritual legal analyses.

The best of these, in recent years, was composed by Rabbi Melissa Weintraub for Rabbis for Human Rights, an international organization focusing on a number of progressive issues both in America and Israel. Weintraub’s series of essays, published in 2005, outlined a case against torture, rooted in Talmudic teaching and Jewish collective memory.

In the Talmudic dictum ain adam mesim atsmo rasha (“a person may not incriminate himself”), she found the basis for traditions militating against self-incrimination that were even more extensive than the parallel American statutes, and included particular provisions against coerced confession. She followed this with a discussion of the overarching principle known as kavod ha-briot (“human dignity”), contrasting notions like tselem elohim (“creation in the image of God”) and hamalbin pnei heviro b’rabim (“whoever shames his fellow in public has spilled his blood”) with the depredations of Abu Ghraib.

Jewish law does clearly place preeminent value on the preservation of life, and articulates circumstances in which a rodef (a “pursuer”) may be harmed or killed to prevent his murder of another. But in her third essay, Weintraub demonstrated how the application of this principle to the kinds of practices then being sanctioned by the Bush Justice Department was a gross miscarriage of its meaning.

Finally, turning from the discursive to the evocative, and rooting herself in the Torah’s injunction against “abusing the stranger, for you know the heart of the stranger, having been strangers in the land of Egypt,” she suggested that a history of slavery, martyrdom, discrimination, and genocide should predispose Jews against systematic policies of wanton abuse.

The State of Israel has a mixed record of living up to these Jewish ideals. Torture as a means of prisoner interrogation was officially sanctioned until 1999, when it was outlawed by the High Court. The infamous “ticking bomb” defense—the notion that torture will prevent an imminent attack, which has proven more relevant on 24 than in reality—was not deemed sufficient grounds for a widespread policy of “enhanced interrogation techniques.” But Israeli human rights activists have protested that loopholes in the 1999 ruling left room for continued abuse of Palestinian detainees.

The exigencies of survival, whether real or perceived, have trumped tselem elhoim in the hearts and minds of many. Though a few Jewish organizations have welcomed the release of the “torture memos” as a positive step forward, many others have kept silent, perhaps still unable to decouple concerns for Israel’s security from the “war on terror” mentality cultivated over the past eight years.

Prophetic ideals are not always sufficient to fully extricate a threatened population from the quagmire of its own anger and fear, but this makes it all the more necessary to hold on to them as tightly as possible—otherwise we risk disappearing into the muck forever.

benweiner@hotmail.com'

Benjamin Weiner writes on arts, culture, politics, and religion for a variety of publications. An ordained rabbi, he is the spiritual leader of Mishkan Ha'am: The Westchester-Riverdale Reconstructionist Group, in New York.