Torture, Terrorism, and the Halakhah 19
existing statutory guidelines, which explicitly include the Basic Law on Human Dignity and Freedom.”' Thus,“interrogation” is restricted to procedures that are“reasonable” and that exclude such“cruel and inhuman” measures as sleep deprivation, shaking the prisoner, forcing him to crouch in the“frog” position, excessively tight handcuffing, and the like. Further, the Court denied to security forces the use of the socalled“necessity defense,” the claim that the urgent need to protect the lives of innocent civilians warrants the use of otherwise illegal measures of interrogation. The Court did make a significant concession on this point: the“necessity defense” might succeed as an after-the-fact justification, shielding security agents from criminal liability if they do resort to torture. It cannot, however, serve as an a priori authorization for any and all measures of interrogation.“Interrogation,” in principle, must be governed by the rules of law that protect the person and the essential humanity of the prisoner. The Court acknowledged that adherence to these rules may at times hinder the police in the performance of their duties; still, it is the“destiny” of a democratic regime to deny itself many of the weapons that its enemies will readily use against it.“A democracy must often fight its battles with one hand tied behind its back.” Nonetheless, the recognition of the rule of law and of the liberty of the individual constitute an inherent element of a democracy’s very concept of security,“strengthening its spirit... and enabling it to triumph over all its difficulties.” And despite its evident sympathy with those who must fight on the front lines against terror, the Court has a duty to perform; “we are judges, and our fellow citizens demand that we function in accordance with the law.” That law does not permit torture as a means of forcing prisoners to reveal information, even in the case of the “ticking time-bomb,” when the detainee may possess knowledge of an imminent terrorist strike.”> The Knesset , of course, as the supreme legislative authority, might alter the law. Yet even that alteration must take into account the requirements of the Basic Law that guarantees the human dignity and freedom of the citizens of the State of Israel .
Professor Warhaftig sharply attacks the Court ’s decision on the grounds of Jewish law: regardless of the correct interpretation of Israeli law,” the halakhah, he contends, would in principle allow security forces to utilize torture in order to force a suspect to reveal details of a planned terrorist attack.’* He bases his argument upon the following grounds.”