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A Perspective on Torture by Rabbi J. David Bleich

Over the past week, the use a torture as a means to extract information from suspected terrorists has been one of the country’s major topics of discussion. In order to gain a halachic perspective on this highly topical issue, I’d like to share with you a summary of a 2006 article on the subject written in Tradition Magazine by Rabbi J. David Bleich, one of Orthodoxy’s primier authorities on Jewish Law and Ethics who, in addition to being ordained by Rabbi Moshe Feinstein, also has a Master’s Degree from Columbia and a PHD from NYU.

Rabbi Bleich explains that in the European and Anglo-Saxon legal traditions, the duty of rescue is very limited. He writes that very few jurisdictions impose any sanctions at all on someone who is able to rescue but fails to do so. Many reasons have been suggested for this omission. One is that sanctions could be counterproductive by encouraging people to remain far from the site of disaster so that they could not be punished for not rescuing; when there are a number of potential rescuers there is a difficulty in singling out whom the duty falls on; and so on. Perhaps the biggest obstacle is the orientation of European law towards rights and punishments as opposed to affirmative duties.

By contrast, Jewish law imposes a binding and very demanding level of obligation to help others when their well-being or even their property is in danger. The Torah commands us, "Don't stand idly by the blood of your fellow" (Leviticus 19:16); rather, we are obligated to take affirmative action to help him.

In addition, Jewish law, like other legal systems, recognizes the right to self-defense. Harming another person is of course normally forbidden, but when that person threatens us we are allowed to act aggressively to protect ourselves. A critical question here is, what is the ethical justification for this right? Is it self-defense per se or is it the culpability of the attacker? Rabbi Bleich explains that in Jewish law, a person may be considered a "pursuer" even if they have no culpability. For example, if the mother's life is threatened during childbirth, the emerging infant can be endangered to save her even though he or she obviously bears no culpability for the tragic medical situation.

Putting these two principles together, Rabbi Bleich concludes that any person with life-saving information is obligated to reveal it (duty of rescue), and that the right of self-defense would justify aggressive actions to compel the knower to disclose his information. Rabbi Bleich writes: "By failing to act the potential informant makes it possible for a calamity to occur. . . It is thus clear that the law of pursuit sanctions any form of bodily force, including mayhem, when necessary to preserve the life of the victim."

Rabbi Bleich points out, that this analysis applies fully only when there is certainty that the person in question can and will provide the information needed to defuse a "ticking bomb". Uncertainty can arise here in many guises: is there a threat at all? Does this person indeed possess the information needed to neutralize the threat? And will torture be effective in eliciting the information? (Rabbi Bleich makes it clear that torture can never be sanctioned when less painful methods will be fruitful.) Obviously these are serious doubts, and experts are divided on whether torture is generally an effective means of obtaining information at all.

Another reservation here is that we have to clearly establish the informant's duty to disclose. Since his status as a "pursuer" is due to his passive refusal to reveal information he has, there can be no right to harm him if he has valid reasons for keeping his secret.

According to Rabbi Bleich, in Jewish law the hinge of the argument is the obligation of theinformant himself to help others. In this surprising fashion, the sanction for torture becomes an expression of his humanity, rather than of his inhumanity. We are allowed to cause him pain precisely because we insist, despite his enmity, on viewing him as someone who has his own ethical obligations to his fellow human beings.