‘Enhanced interrogation’ and Jewish law

“You have a right to remain silent. However, if you choose to talk after we freeze you and keep you awake for days at a time in uncomfortable positions, without allowing you to speak to an attorney."

By
January 7, 2016 21:00
ATTORNEY ITAMAR BEN-GVIR, who is representing one of the suspects in the Duma terrorist attack

ATTORNEY ITAMAR BEN-GVIR, who is representing one of the suspects in the Duma terrorist attack, waits outside the Petah Tikva Magistrate’s Court. (photo credit: MARC ISRAEL SELLEM)

 
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Is torture ever justified under Jewish law (Halacha)? Would the use of torture on the Jewish suspects in the Duma arson case (which resulted in the deaths of three Palestinians) be halachically justifiable? As has been widely reported, the suspects in the Duma case claim to have been tortured. The report seems credible as it has also been reported that Attorney-General Yehuda Weinstein personally approved the use of “enhanced interrogation techniques” on the suspects.

Since people were killed in the Duma attack, and the government was concerned that more attacks were on the way, it applied the “ticking bomb” criteria – a convoluted and overused concept in Israeli law under which harsh interrogation can be justified after the fact if there is a credible danger of future violence.

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Fans of the American TV series Scandal are treated to some ugly scenes of torture: extracting teeth (sans Novocain), the use of drills, power tools, etc. The torturee is usually killed afterwards.

The Shin Bet engages in nothing so crude. In fact, one of its operating principles is not to do anything that will leave permanent marks. Apparently, those permanent marks form some sort of artificial dividing line between “enhanced techniques” and torture.

But there is no doubt that enhanced interrogation techniques are coercive. The treatment alleged by the Jewish suspects is the same exact treatment that has been widely reported by Palestinian prisoners.

As documented by the Public Committee Against Torture in Israel, common “enhanced” techniques in Israel include “stress positions” (immobilizing prisoners in very uncomfortable positions, such as the “banana” position or the “frog” position), threats, cursing, humiliation, painful handcuffing or shackling, sleep deprivation, isolation and exposure to extreme cold or heat.

The use of such techniques on the Duma suspects has brought about a rare alignment between the far Left and the far Right in Israel. People on both sides politically feel the Duma suspects should not have tortured.



There is, of course, one crucial difference: the Right is only opposed to using such techniques on Jewish suspects, as expressed in the slogan “Jews don’t torture Jews”; the Left is opposed to using them on anyone.

Since we live in the Jewish state, it’s informative to take a look at what Jewish law has to say on the subject.

There’s a glaring problem with Israel’s “ticking bomb” approach to torture. It fails to distinguish between “enhanced interrogation” for intelligence purposes and “enhanced interrogation” for the purposes of extracting a confession. The admissibility of such a confession as evidence in a court of law is also highly problematic.

Halacha supports the “ticking bomb” argument for intelligence purposes but not for confession purposes. (Also, the bombing really needs to be “ticking” – i.e., the threat needs to be imminent.) The principle of pikuah nefesh, saving lives, says the commandments (except for three – against idol worship, murder and sexual immorality) may be set aside for the sake of saving lives. If it was known that a suspected terrorist had knowledge of an imminent attack that could kill people, it would be permissible to use “enhanced interrogation techniques” to extract that information and save lives. It would make no difference whether the person being interrogated was Jewish or not or whether the intended victims are Jewish or not.

The person with knowledge of an imminent attack can also be considered a “rodef” – a “pursuer” under Halacha. Even though a person with knowledge of an attack is not an active pursuer – if he’s in custody he can’t cause the harm himself – he can still be considered a “passive pursuer.” One is clearly allowed to kill a rodef to stop him from killing someone else. Since there is no penalty harsher than death, if you can kill him to prevent the death of an innocent person, surely you can torture him to prevent the death of an innocent person.

But what about a confession? It may come as a surprise to many people, but in capital cases confessions are not allowed under Halacha, even if there was no coercion. Not only are you not allowed to coerce a confession from someone, a confession voluntarily and freely given cannot be used against a person in court.

The biblical source text is in Deuteronomy, where it says that a person shall not be put to death by the mouth of one witness, but two witnesses. Someone who is a party to litigation is not eligible to testify, so you can’t be a witness against yourself, even if there was one other witness.

Rambam (Maimonides) suggests that the reason confessions are not allowed is that someone may give a false confession because he is depressed: “The Sanhedrin, however, may not execute or lash a person who admits committing a transgression, lest he become crazed concerning this matter. Perhaps he is one of those embittered people who are anxious to die and thrust a sword in their bellies or throw themselves from the rooftops.

Similarly, we fear that such a person may come and admit committing an act that he did not perform, so that he will be executed.”

If we’re concerned someone would give a false confession because of depression, all the more so we would be concerned he would give a false confession because of torture.

Israeli civil law includes a right to remain silent – a privilege against self-incrimination. This is grounded in the Basic Law: Human Dignity and Liberty. To allow someone to be convicted on the basis of a coerced confession makes a mockery of Israel’s Basic Laws, and is contrary to Halacha.

In effect, Israel’s version of the US’s “Miranda Warning” might go something like this: “You have a right to remain silent. However, if you choose to talk after we freeze you and keep you awake for days at a time in uncomfortable positions, without allowing you to speak to an attorney, anything you say can and will be used against you in a court of law.”

The writer is a rabbi, entrepreneur and former chairman of Rabbis for Human Rights.

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