Torture, Terrorism, and the Halakhah 23

The third problem concerns one of Warhaftig’s two major substantive halakhic points: his invocation of the rodef principle. At first glance, there is nothing unreasonable about this argument. A person in the process of carrying out a terrorist attack is unquestionably a “pursuer” in the eyes of Jewish law and, to borrow the Court ’s terminology, of“common sense.” Few would object to a security guard’s use of deadly force to stop a would-be suicide bomber from boarding a bus or entering a crowded restaurant, and even the“Western legal tradition,” Warhaftig’s béte noire, would not punish the guard for that timely life-saving action. The difficulty arises with the terrorist suspect, the one who possesses(or might possess) information about an impending attack to be carried out by others. As has been noted,” Warhaftig’s classification of the suspect as a rodef'is an evident chidush, a legal innovation. Until now, Jewish law has regarded the“pursuer” as the murderer himself, the one actively on the way to committing the crime. Warhaftig here would seem to expand the concept to include the person who could prevent the murder by revealing information leading to the arrest of the perpetrator but who refuses to do so. The implications of this expansion are far-reaching. Has murder now become a crime of omission as well as commission? Shall we follow this logic and define as a rodef anyone who refuses to act as a“good Samaritan,” that is, one who is capable of fulfilling the mitzvah to save life but who chooses not to do s0?’® In response, Warhaftig insists that when the elements of certainty and imminence are present— that is, when we are certain that the suspect has knowledge of an imminent attack—“he qualifies as a rodef even by his failure to act.” Yet having made this determination he immediately steps back from it:“At any rate, even if(the suspect) is not a true rodef(rodef mamash), it is still permissible to coerce him into fulfilling the commandment to save life.” Since we are a/l commanded to save life, this formulation effectively removes the suspect from the category of“pursuer” and fixes his legal obligation as that of an ordinary citizen. Is Warhaftig, in spite of everything, uncomfortable in calling this suspect a rodef? If so, his discomfort is well-taken; one should be wary of expanding the rodef principle beyond its original, tightly circumscribed boundaries. We Jews have but recently discovered to our sorrow that such an expansion can happen all too easily, allowing fanatics to cite the principle as a justification for horrendous and shocking acts.’” Legal commentators note the same tendency in the contemporary debate— i.e., the debate within legal circles since the terrorist attacks of September 11, 2001-- over the permissibility of torture by law-enforcement officials. Although governments may assure