46

Mark Washofsky

Rehnquist, 4// The Laws But One: Civil Liberties in Wartime(New York : Vintage Books, 2000), 222.

34. This is not the place(and I am not the person) to conduct a discussion of the laws of war in modern society. I would simply mention, from among all the sources that could be cited, an article by John C. Yoo and James C. Ho,“The Status of Terrorists,” Virginia Journal of International Law 44(2003-2004), 207-228. The authors argue that captured Al Qaeda and Taliban fighters do not qualify for the status of prisoners of war under accepted international standards. If this argument is accepted— and the government of the United States has by all accounts accepted it-- it would strip the prisoners of numerous rights and subject them to rough treatment, though not necessarily torture. I present this material, not necessarily because I agree with Yoo and Ho, but in order to demonstrate the extent to which Western law permits a government to undertake extraordinary powers during wartime.

35. R. Yisrael Rosen, in Warhaftig(note 17, above), at 146, n. 3. Warhaftig responds below in that same note. Both Rosen and Warhaftig are editors of Techumin.

36. See note 26 and the sources related to Leviticus 19:16, as well as Aaron Kirschenbaum,“The‘Good Samaritan’ and Jewish Law,” Diné Israel 7(1976), 7­86.

37. See Chaim Povarsky,“The Law of the Pursuer and the Assassination of Prime Minister Rabin, ” in E. A. Goldman, ed., Jewish Law Association Studies, vol. 9 (Atlanta: Scholars Press, 1997), 161-198.

38. For an excellent analysis of the problem see David Luban,“Liberalism, Torture, and the Ticking Bomb,” University of Virginia Law Review 91(2005), 1425-1461. From the efforts of the U.S. government to defend its conduct during the current “War on Terror,” he concludes that“the liberal ideology of torture, which assumes that torture can be neatly confined to exceptional ticking-bomb cases and surgically severed from cruelty and tyranny, remains a dangerous delusion”(1461).

39. See Strauss(note 12, above), at 262-264:“But torture need not always be effective to be justified... While, undoubtedly, there is ample evidence that torture frequently yields false confessions, this concern is less significant when the purpose of an interrogation is to obtain information and not to secure a conviction... The possibility of even a germ of truth coming from the mouth of an otherwise silent conspirator, conceivably, might be worth the risk... Even if nine times out of ten, a tortured suspect would falsely confess to a crime, or lie to stop being tortured, if the one time truth prevails is the situation where a terrorist has hidden a nuclear bomb in a major city, torture could arguably be seen as effective.”

40. Strauss(note 12, above), 260-261.