18 Mark Washofsky

recently than many others, including Professor Warhaftig, I recognize the value of their pioneering work; in that sense, I am a dwarf who stands on the shoulders of giants. Yet just as the dwarf for precisely that reason can see a bit farther than the giant is able to,'® I think that it is appropriate for those of us who rely upon the work of our predecessors to openly and honestly state our disagreements with them. This is especially true for us, liberals whose outlook upon the Jewish legal heritage is bound to diverge from that of our Orthodox counterparts. At any rate, such critique and argument is the way in which halakhah, like every other intellectual discipline, grows and develops over time.

Torture: Warhaftig v. Barak. Professor Warhaftig’s article'” is itself a critique; his target is a 1999 decision by the Israel Supreme Court on the application of torture against suspects accused of involvement in terrorist acts. The Court , sitting as the High Court of Justice , found that officers of Israel ’s General Security Service(GSS, or Shabakh) were not entitled under the law to employ methods of torture upon prisoners in their custody. The Court ’s opinion, authored by Chief Justice Aharon Barak , centers upon the authority of government agents to conduct“investigations” or“interrogations”(chakirot).”” This authority is determined by legislation, both that enacted by the Knesset as well as international treaties and legal compacts to which Israel is a party. That legislation, which defines the permitted methods of “investigation,” is formulated against the backdrop of a fundamental clash between two competing values or interests(arakhim o interesim): “on the one hand, the desire to uncover the truth, so as to achieve the public interest in the detection and prevention of crime; and on the other hand, the desire to protect the human dignity and liberty of the detainee.” Neither of these values is absolute; a democratic society is committed to both, even though they conflict with each other. The rules of interrogation are thus the product of a balance between the two, a balance founded upon a proper combination of reasonableness, common sense(hasekhel hayashar), and decency. The rules must permit the security forces to wage an effective struggle against crime and terror. At the same time, rules that define and limit the scope of interrogation are essential to a democratic society; a violation of those rules is a violation not only of the dignity of the detainee but of the image of the society as a whole.” On this basis, the Court concluded that the law which authorizes GSS agents to conduct“interrogation” does not automatically permit them to utilize any and all means necessary to obtain the information they seek. Interrogation must be conducted according to