Torture, Terrorism, and the Halakhah 45

26. Rambam , Yad, Rotzeach 1:6. See M. Sanhedrin 8:7 and B. Sanhedrin 73a, which learns the principle of rodef from Leviticus 19:16(“do not stand idly by the blood of your fellow,” suggesting a positive duty to rescue those in danger) and from Deuteronomy 22:26(the law of the betrothed maiden“who has no rescuer”— if she had a rescuer, he would be permitted to rescue her with any

27. On pikuach nefesh, see the preceding note.“Dinim,” the obligation to establish courts of law to administer justice, is one of the seven“Noachide” laws to which all humankind is obliged; B. Sanhedrin 56b and Yad, Melakhim 9:14.

28. Warhaftig cites Soferim 15:7(ed. Higger; 7:10 in the printed editions), which declares that“you may kill the best of the Gentiles during wartime.” The text has clearly been emended according to the comment in Tosafot Avodah Zarah 26b, s.v. velo moridin, which cites the parallel in Y. Kidushin 4:11(66b), in which the words “during wartime” are missing. That would imply that one is entitled to kill the Gentile at any and all times, presumably because as an idol worshiper he is culpable for death under the Noachide laws. The Babylonian Talmud (4vodah Zarah 26a), by contrast, rules that we are not to kill the Gentile, though we are under no obligation to rescue him from mortal danger. Maimonides (Yad, Avodat Kokhavim 10:1) applies this rule to a member of one of the“seven nations,” the Canaanites who occupied the land that God promised to Israel . This would mean that the law does not apply to the Muslims with whom the state of Israel is currently at war. On the other hand, in Yad, Rotzeach 4:11, Rambam applies this rule to all“Gentiles” with whom we are at war. Warhaftig, who cites Rambam ’s two rulings(p. 147, n. 9), does not mention the contradiction between them.

29. Warhaftig acknowledges that this Talmudic principle applies generally to monetary matters(see B. Ketubot 2b, 56a, and 89b, among other places). Nonetheless, he asserts, it applies as well to our case.

30. See Yad, Sanhedrin 24:8-10. Rambam apparently derives this rule from B. Sanhedrin 46a, and see Tur and Shulchan Arukh Choshen Mishpat 2.

31. See Public Committee(note 18, above), section 18, for a listing of the specific legislative provisions.

32. Justice Y. Kedmi filed a concurring opinion. While he asserts that a state has the“natural right”(zekhut tiv it) to protect itself and therefore should find a way to permit coercive interrogation tactics in the admittedly rare instance of the “ticking time bomb,” he agrees with Chief Justice Barak and the other seven justices that the existing legislation does not authorize them.

33.“In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order— in favor of the governments ability to deal with conditions that threaten the national well-being”; William