Resolution Adopted by the CCAR
THE USE OF TORTURE OR LESSER FORMS OF COERCION TO OBTAIN INFORMATION FROM PRISONERS
Adopted by the 116th Annual Convention
of the Central Conference of American Rabbis
Houston, TX
March, 2005
Background
From the perspective of Jewish law and tradition, the issue of torture and the use of lesser forms of coercion to obtain information from prisoners are complex and difficult. Determining whether or not it is permissible (and if so, to what extent) for security personnel to exert physical pressure upon a suspect in order to extract relevant information that might help deter acts of violence and/or save lives requires examination of numerous aspects of Jewish law. However, under international human rights and humanitarian law, torture is not acceptable.
According to Jewish law, torture for the purpose of saving lives could be justified under certain circumstances. In the case of a rodef, Jewish law teaches: "When one pursues another with intent to kill.every Jew is commanded to save the intended victim, even at the cost of the pursuer.s life." (Maimonides Yad, Rotzeach 1:6.) A suspect who is planning a terrorist act or who possesses information that could lead to the prevention of that act is a rodef, a "pursuer," and one could argue that it is permissible to extract the information by any means necessary.
However, the problem here is that often we do not know for sure whether an individual is truly a rodef until after an interrogation. In a case of safek, of doubt, and not one of vada.i, or certainty, one could argue that it is permissible to exert physical pressure to obtain life-saving information because it is an emergency situation (Hora.at Hasha.ah), where the normal rules of legal procedure are temporarily set aside (Shulchan Arukh Choshen Mishpat 2). Of course, such interrogation, if permitted, must be carefully monitored, to insure that only the minimal required amount of physical intimidation is utilized.
Jewish tradition also acknowledges that in a time of war (sha`at milchamah), the emotional climate is raised and the level of danger correspondingly increases. If the community and its leaders decide that we are in a wartime situation, then the interrogation of suspects may be carried out according to rules different from those governing normal criminal procedure. Historically, the Rabbinical Court (Beit Din) was empowered to coerce a person to perform his obligations; applying physical pressure to compel a suspect to reveal information that can save a life (and thus compelling the suspect to fulfill the commandment to not "stand idly by the blood of his neighbor") may be deemed to be within the court.s authority.
On the other hand, from the standpoint of Jewish tradition, all human beings are created in the Image of God (B.tselem Elohim). Torture and prisoner abuse shatter and defile that Image. In every shriek of those in unbearable pain, in every crazed nightmare of those who are denied sleep for days and weeks at a time, in every muffled moan of those plunged under water for minutes at a time, trying not to breathe lest they drown, God is broken. God is defiled.
Maimonides cautions the Rabbinical Court (Beit Din) that although it has the power to exert physical force in support of the Torah.s decrees, it should do so with humility and full respect for the human dignity of those upon whom it exercises discipline. (Yad, Sanhedrin 24:10) According to the Rambam, we are entitled to violate the dignity of the individual (kevod haberiyot) only in order to preserve God.s dignity and reputation (kevod hamakom).
CONTEMPORARY RELEVANCE
The question of torture has been considered as well by the Supreme Court of Israel. (Public Committee Against Torture in Israel v. the Government of Israel and the General Security Services, 5100/94.) The issue, as the court sees it, involves a basic tension between two fundamental principles of Jewish law and ethics. On the one hand, the prisoner is a human being, created B.tselem Elohim, and as such is entitled to be treated with dignity and respect. On the other hand, there exists a clear and present danger to the lives of innocent persons, whose death and injury might be prevented by information that the suspect can provide. The court ruled that, in principle (lehatkhilah), it is unlawful to torture the suspect, even when we know that a terrorist attack or incident is about to occur.
Since the tragic events of September 11th, 2001, the nation has struggled with how at once to support civil liberties and human rights, and provide security for its citizens. As the Administration has waged its war on terror, some have suggested that the President may circumvent obligations outlined by the Geneva Conventions and the Convention on Torture, and authorize the use of torture by United States forces and agents in the process of interrogating prisoners. The argument has been made by Alberto Gonzales, then White House Counsel, that because terrorists are non-state actors and not signatories of the Geneva Conventions, the United States does not have to abide by the Conventions when dealing with them. Recently, the Administration, guided by memos written by Attorney General Gonzales, has also sought to redefine torture, stating that torture is only that which results in organ failure or death. To do this is in direct violation of our obligation to international law.
The four Geneva Conventions and their two optional protocols comprise what is called international humanitarian law and define the rights of civilians and combatants during war time. The Geneva Conventions were adopted by the nations of the world very shortly after, and because of, World War II. They are one of the most sacred legacies of the victims of the Nazi atrocities, bequeathed from their suffering to the human race as a whole. The Declaration of Human Rights; The International Covenant on Civil and Political Rights, and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also all ban torture without exception. By sanctioning torture, the United States breaks its commitment to international humanitarian law and international standards of human rights.
Some have expressed concern that our nation has started down a slippery slope that has led to gratuitous abuse and egregious acts that violate our moral and ethical principles, as well as international legal standards. These policies have had a major effect on the chain of command and the behavior of American forces and agents in Guantanamo and at Abu Ghraib, and at other prisons in various places where the United States has either itself used methods named as torture by the Geneva Conventions or has “rendered” its prisoners to foreign governments known to use extremely brutal methods of torture. At Abu Ghraib, detainees were subject to sexual violence, assault, and humiliation documented with photographs. Individual prison guards have been prosecuted and charged, but officials within the Administration or with higher rank in the military have not taken responsibility for the crimes committed. At the prison facility in Guantanamo Bay, Cuba, suspects were held without being accused of a crime for extended periods and the Red Cross was not allowed access to prisoners. Family members were sometimes unable to verify that relatives were detained, and there are now accusations of torture at the facility.
The halachic dictum noted above would apply only to the "ticking time bomb" situation where the security personnel have reason to believe that the prisoner possesses information that could enable the United States and its allies to foil an imminent attack upon civilians. It does not address cases in which prisoners have been held for extended periods of time and are being interrogated for information of a more general nature. An enemy combatant is not necessarily a pursuer (rodef). To qualify for the latter designation, the enemy combatant has to pose an imminent threat to actual people.
However, as the Israel Supreme Court held in its 1999 case, even in a "ticking bomb scenario," torture or physical coercion are banned without exception. Experience has taught that there are more effective and moral ways of extracting information from detainees that do not reach beyond the bounds of law. As the Court noted: "This is the destiny of a democracy.it does not see all means as acceptable, and the ways of its enemies are not always open before it. A democracy must sometimes fight with one hand tied behind its back. Even so, a democracy has the upper hand. The rule of law and the liberty of an individual constitute important components in its understanding of security. At the end of the day, they strengthen its spirit and this strength allows it to overcome its difficulties."
Additionally, we have deep concern for the safety of American soldiers and civilians who may well be endangered if the protections of the Geneva Conventions are denigrated and diminished by the United States.
History has shown us time and again that people in positions of power are quite capable of abusing the legal authority granted to them. If we could assume that our leaders and security personnel would always act in accordance with the highest principles, we would not need to supervise them. In the wake of Guantanamo and Abu Ghraib, we are reminded that the need for such supervision is critical. The protection of society is in the hands of fallible human beings, and we find no grounds upon which we would grant to those human beings the discretion to exert physical abuse upon the prisoners in their charge.
THEREFORE, the Central Conference of American Rabbis urges that the President and the government of the United States resolve to: