Torture, Terrorism, and the Halakhah 17

distinct from“cruel, inhuman, or degrading” treatment, though it, too, does not attempt to offer a precise definition of its terms. This has led observers to conclude that the document should be read as“a living text, to be interpreted within the understandings current” in the societies that live by it.'* This is a reasonable observation, one that reflects both the uncertainties surrounding our definitions as well as the moral urgency we ascribe to them. We may disagree among ourselves as to precisely which acts qualify as torture; at the same time, we know that there is such a thing as torture and that we must respond to it as a legal and moral issue.

For the purposes of this paper, perhaps the best I can do is to adopt the old“I can’t define it but I know it when I see it” definition: “torture” is anything that would strike the reasonable observer as such. This, in fact, is the standard adopted by the United States Supreme Court in a landmark decision concerning the admissibility of evidence obtained by police through the violent and invasive abuse of the suspect:“The proceedings by which the conviction was obtained do more than offend some fastidious squeamishness or private sentimentalism about combating crime too energetically. This is conduct that shocks the conscience... They are methods too close to the rack and the screw to permit of constitutional differentiation.”'’ Torture is real, in other words, so long as we are possessed of a moral sense that is capable of being offended. I would put the question, therefore, in the following way: does Jewish law permit the use of interrogative procedures that“shock the conscience” as a means of eliciting information that may prevent a planned terrorist attack and thus save innocent life?

[ am fortunate not to be the first to consider this issue. This enables me to use as my starting point an article on the subject by Professor Itamar Warhaftig of the Bar Ilan University law faculty. A member of a distinguished Zionist rabbinical family, Professor Warhaftig is a prominent Orthodox scholar who has published widely in the field of mishpat ivri, the academic study of Jewish law. His article offers a sustained argument that halakhah permits the torture of security detainees suspected of involvement in terrorist activity. We are indebted to Professor Warhaftig for helping us to identify the relevant texts and for suggesting lines of thinking and analysis to help clarify the issues. At the same time, we shall see he takes an approach that liberal Jews — and, [ think, not only liberal Jews — will find troubling and problematic. I therefore, intend to critique his work, but I hasten to add that I intend no disrespect thereby. As one who has come to this subject much more