TORTURE, TERRORISM, AND THE HALAKHAH Jewish Law and the Elusive Balance Between Public Security and Human Rights

Mark Washofsky

Terrorism, defined as“premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents,” threatens the lives and safety of the people of all nations. In this paper, however, I want to focus upon the danger that terrorism poses to the nation as a state, an organized politico-legal structure. In particular, I am concerned with the nature of the response to terrorism adopted by democratic states such as the ones in which we live. Fundamental to our Western notion of liberal democracy is the principle of the rule of law,” which places clear and substantive limits upon the power of the state to enforce its will upon its citizens.’ In particular, as a leading contemporary legal philosopher notes,“Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.” Our societies accordingly cast a suspicious eye upon proposed policies that, while advertised as essential to safeguard public security, would result in increasing governmental intrusion upon the private realm. At the same time, the maintenance of public security is arguably the first and most basic responsibility of any government. The increasing frequency of terrorist actions against civilian populations has led many citizens of Western nations to demand the imposition of tough security measures that violate the liberties and civil protections that the law has traditionally guaranteed to the individual. The“danger” of which I speak, therefore, is twofold. On the one hand, the government’s response to terrorism, if it is too forceful, can endanger the rule-of-law values that are an intrinsic element of our Western notions of democracy. Yet if that response is not forceful enough, the people may lose confidence in the government’s power to protect them and replace it with a regime that promises security at the cost of the further suppression of individual freedoms. The question, then, is where to draw the line between public security and the rights of the individual, to achieve both these essential ends of government without sacrificing the one to the other. The search for this balance has become one of the most urgent tasks in contemporary law and politics.