24 Mark Washofsky
us that their intention is to use torture only in strictly defined“ticking time bomb” cases, experience teaches that torture is never and cannot be restricted to such scenarios. The conceptual lines are too blurry; the analogies are too inviting; the call of“necessity” guarantees that torture will be applied in cases where other means of preventing an attack are available and even when we are not certain that the suspect possesses relevant information.” The rodef principle would work in a similar way, serving to justify the use of torture in a variety of cases where“we think the suspect possesses critical information, but we aren’t sure.” The mere possibility that the suspect might know something useful would in the eyes of many be a sufficient justification.” As one observer puts it:*
Once self-defense is stretched beyond its carefully established, narrowly drawn borders, it becomes a doctrine without bounds. A selfdefense argument could be raised to justify torturing a drug dealer who distributed contaminated drugs in order to find out where his drugs are headed. The argument would justify torturing an innocent child in order to compel information from his parent. Torture could be used on someone who likely knows the name or whereabouts of a serial killer. The self-defense rationale, ultimately, would have no limit. In sum, there is a recognizable difference between killing someone engaged in the act of murder, and torturing another person to gain information to prevent a murder.
Warhaftig fails to recognize that difference. Though he concedes that the concept of rodef does not truly apply to cases of uncertainty, he has no problem supporting the use of torture in such cases on the grounds that the suspect, even though it is not certain that he has information that can save lives, is a bad person who could easily halt the torture by telling us what we want to know. He is not a rodef, in other words, but we will still treat him as one. This circular argument is little more than a sleight-of-hand extension of the rodef principle to a situation that, as Warhaftig knows, lies outside its conceptual boundaries. To put it differently, the rodef principle is a slippery slope, and Warhaftig has already begun his slide.
The fourth consideration has to do with the other substantive halakhic point in Warhaftig’s presentation: his assertion that Jewish law empowers the beit din, and by extension the legitimate authorities in a particular society, to employ physical coercion against a recalcitrant individual who refuses to fulfill his responsibilities under the Torah. *!