Torture, Terrorism, and the Halakhah 33

selfish desires are not the goals to which morally sensitive people should aspire. We can and readily do declare that“morality” by any definition demands that the end of justice is the construction of a just society, a community founded upon mutual concern rather than upon the radical freedom to pursue one’s personal satisfaction. But, we would also say (and we think recent history proves us correct) that a society that fails to safeguard the rights and liberties of the individual is a society that is in deepest sense unjust. To put this another way, in our world, the social, political, and moral universe that we have inhabited for the past two centuries, regimes that have subsumed the dignity of the individual to some“higher” purpose have tended to be the instigators of the most unspeakable atrocities that humankind has ever witnessed. Our narrative must therefore begin with the clear statement of contrast:“we are not like them.”

I do not wish to be misunderstood. I do not consider Professor Warhaftig a friend of totalitarianism; I am certain that he would blanch at the thought. In today’s world, however, the power to torture detainees, the remedy that he advocates, would not be administered by rabbinical authorities whom God would safeguard from error.® It would lie instead with officials whose authority flows not from divine inspiration but from a constitutional arrangement adopted by the people. In Western societies, that arrangement involves carefully specified limitations upon governmental power, particularly when the application of that power would transgress upon individual rights and human dignity. A warrant for torture, in other words, would exact a painfully high price from a liberal and democratic regime; it would call into question that regime’s very legitimacy to govern in the name of its people.

Numerous legal scholars have noted this danger, sounding the warning in words too clear and chilling to be ignored. Particularly instructive are some responses to the report of the“Landau Commission,” established in 1987 by the government of Israel to investigate the interrogation methods employed by the GSS. The commission found, among other things, that“the effective interrogation of terrorist suspects is impossible without the use of means of pressure... (which) should principally take the form of non-violent psychological pressure... However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided.” To this, Professor Yitzchak Zamir, a justice of the Israel Supreme Court , remarks: