Torture, Terrorism, and the Halakhah 39 our law.

Toward a Conclusion. For all these reasons, we who represent the ideal of“liberal” or“progressive” halakhah have sufficient cause to reject Professor Warhaftig’s interpretation of Jewish law as it relates to torture. To return to the question of balance with which we began, we would say that while our governments must wage a tough and vigorous war against those who use terror to threaten human life and the social order, we cannot follow Warhaftig’s claim that the Torah and the Jewish legal tradition authorize the government to use torture as a weapon in this war. The halakhah, as we understand it, demands that the government maintain its fidelity to the human dignity and the rule of law even in the midst of this struggle. Our narrative, the context from within which we do and must interpret the rules of our law, forbids us from mimicking the methods of those who would destroy us. To do so, even in the name of national security, would be to grant them the very victory that we wish to deny them.

And yet... there can be a difference, a profound one, between what we say in the name of our law and what we actually do, the way we conduct ourselves in the crucible of reality. I return to a question I raised above: with all our evident dedication to such liberal and progressive ideals as the inherent dignity of the human person and the rule of law, are we absolutely certain that Professor Warhaftig does not in some way give voice to our own sentiments? Even though we reject his arguments, a disturbing question remains: would we liberals never support our government’s use of torture, no matter what the circumstances, even in a“ticking time-bomb” case? At the end of the day, after all our protestations that“we are not like them,” 1 suspect that many of us, perhaps most of us, would rule for torture in such a situation. Even jurists and moralists who oppose torture on grounds of principle can acknowledge the existence of exceptions to the rule. At the very least, they will concede that government officials might well opt for torture and that they would see their action as justified no matter what the law says. If this is so, if good progressives like us cannot categorically rule out the resort to torture in every possible instance, then we might well ask: what good have we done? What value is there in our careful legal analysis and in our invocation of Jewish values if, when the chips are down, we would look past all of that and(in the words of Justice Barak) plead the defense of necessity?