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Tortured Logic

There's no excuse for U.S. torture -- or for the silence of American Jews


by Rabbi Robin Podolsky

March 23, 2006 | 7:00 pm

In 1470, five corpses were found in the charnel of a church in Endingen on the Rhine. Eight years earlier, a Jewish man named Elias had sheltered a family of five beggars in his home during the Passover/Easter season. Assuming that Endingen's Jews had murdered the family in order to use their blood for ritual purposes, the governor ordered that Elias and his brothers, Eberlin and Mercklin, be arrested and interrogated.

Elias confessed under physical pressure to having witnessed the murders but not to having participated. He named several other Jews, including his brothers. Eberlin confessed quickly, according to his interrogators, "without any torture or pain," those circumstances apparently being unusual enough to warrant mention. Freely, then, Eberlin divulged that Jews require Christian blood for the proper performance of circumcision rituals.

Mercklin held out longer than his brothers, but "with many enforced words," he began to try and confess. When asked why Jews need Christian blood, Mercklin first said that such blood has healing powers.

His questioners told him that they were not "satisfied" with that answer. As any skilled interrogator would, they said that he might as well tell them the truth, since his brothers had already done so.

Mercklin attempted to refine his confession, saying that the blood was a specific cure for epilepsy; then that Jews "stink" and need to drink Christian blood as a deoderizer.

Eventually, he hit on Eberlin's answer -- that Jews use Christian blood in circumcision. Pressured to elaborate further, he admitted what his interrogators were certain they knew: Jews need Christian blood in order to do "the devil's work."

The murders having been solved through due process and the threat to the community averted, the brothers were burnt at the stake. -- Paraphrased from "The Myth of Ritual Murder: Jews and Magic in Reformantion Germany," by R. Pochia Hsia.

For some time, there has been no doubt. For years, as a matter of policy, the United States government, in our name and on our dime, has overseen what has variously been called "harsh treatment," "coercive techniques," "torture-lite" and "torture" on people in U.S. custody.

Among the most recent revelations:

-- A draft U.N. report, cited in the Los Angeles Times, Feb. 13, 2006, indicates that, in addition to the now-familiar list of abuses perpetrated at the Guantanamo Bay detention facility -- prolonged solitary confinement, sleep deprivation and extremes of noise, heat, light and cold -- inmates who staged hunger strikes to protest their conditions were force-fed laxatives until they defecated on themselves, vomited and bled.

-- A sample of the 1,000-plus photographs taken at Abu Ghraib prison, held by the Army's Criminal Investigation Command, published in Salon Magazine on Feb. 16 and March 14, reveal naked bodies strapped into agonizing contortions; more forced "sexual" acts; more dogs employed as weapons; more battered faces of the dead.

-- Interviews of soldiers assigned to the 82nd Airborne in Iraq, published by Human Rights Watch in December 2005, indicate that before detainees ever made it to Abu Ghraib, it was common practice, based on instructions from military intelligence personnel, to "smoke" them: put them in "stress" positions until they fainted; keep them awake for days at a time; pour cold water on them and then mud and dirt; and returning to basics, beat them up.

Some of the more egregious cases, that of the young man beaten to death over a period of days in Afghanistan and the repeated, bizarre sexual assaults at Abu Ghraib, have resulted in the convictions and moderate sentencing of low-level soldiers, but no top-level officials have been called to account.

In fact, according to a March 6 Associated Press story, U.S. Attorney General Alberto Gonzales, co-author of Justice Department opinions dating back to 2001 that justify whatever one wants to call the more common practices listed above, denies that the United States has ever engaged in torture or has any reason to change its policies. However, as various military personnel, from prison guard Michael J. Smith to Brig. Gen. Janis Karpinski, continue to "rat up," this denial might begin to wear thin.

Some of the people incarcerated by our government have actually raised weapons against the United States or helped others to do so. Others of them have not, or they had a kind of desultory involvement from which they might soon enough have disentangled themselves. Some minority of them probably had at the time of their incarceration some knowledge about impending terrorist attacks.

These are not "ticking bomb" suspects who, the argument goes, must be broken quickly, in secret, in the nick of time. We're talking about a policy that sifts through human bodies and souls like a thresher, digging for what scraps of intelligence might be available and then warehousing the still-breathing human chaff. (If this all sounds like exaggeration, please consult the links at www.jewishjournal.com and decide for yourself.)

THE JEWISH QUESTION

We have at least two questions before us: Have we nothing, as Jews, to say to our compatriots about this tangle of issues, moral and political? And, if the answer is yes, what could be stopping us from saying it loud and clear?

Surely, people who see in human beings an image of their Creator (Genesis 1:26) have a particular stake in how these issues are resolved.

Our religion places inviolable limits on what we may do to one another. Yet the shock of Sept. 11 forced American Jews to ask if we can still find those limits -- if we can refuse to compartmentalize our Judaism -- even when we have reason to be angry and afraid.

Jews have a long history of practical concern about torture. Most often, we have been on the receiving end. Under Roman occupation, in the Roman Diaspora and as a minority during the Middle Ages, our bodies were subject to the decisions and whims of rulers before whom we had little say.

Our High Holiday liturgy records the excruciations our martyrs endured rather than recant their devotion to Torah in the face of Roman oppression. We remember Rabbi Akiba, shredded with hot rakes until he died; Chaninah ben Tradyon, wrapped in a Torah scroll and burned.

Our own communal laws in the worldwide Diaspora were made for internal self-governance and depended for their authority on what the community would tolerate for itself. History records that what may have been the cruelest torture Jews ever enforced on one another -- expulsion from the community -- could be rendered unenforceable by a distant group of Jews willing to take in the offender.

Writing for Rabbis for Human Rights (RHR), Melissa Weintraub cites both Midrash and Talmud to indicate how this fundamental understanding is expressed in the principle: kvod ha-briot, the dignity of the created ones. In a Midrash, Ben Azzai tells us in his commentary on Genesis that the common origin of all people (not just those with whom we identify) makes the commandment to love one's neighbor as oneself (Leviticus 19:18) the greatest value in the Torah.

As a matter of law, we learn (in Berakhot 19b) that one may violate rabbinic decrees to protect human dignity. The Jerusalem Talmud goes further, suggesting (in Kilayim 9:1) that, when human dignity is at stake, even Torah commandments may be overridden.

The advent of modernity made some Jews in the West into citizens of republics with an equal share in recognizable rights and, therefore, responsibilities. Modernity was also the time of the Shoah, an ordeal for which a noun like torture is not adequate. After the Holocaust rose the State of Israel, in which Jews hold state power and face a "torture question" of their own.

In another context, that of the Darfur genocide, University of Judaism professor Aryeh Cohen offers a teaching about the responsibilities of modern Jews. He points to text (Shabbat 84b-85a) that teaches our absolute responsibility to protest wrongdoing in our family, our city, our country and the world -- if we are among those whose protest might make a difference. In a democracy, we like to believe that means everybody.

The Jewish tradition of Dina Demalchuta Dina (Baba Batra 54:2): "the law of the land (where Jews reside) is law for us" has a particular resonance for Jews who are citizens of a representative democracy. While some Jews interpret the principle as mandating an abstention from the public sphere, others read it the opposite way, as underscoring the imperative of civic participation, up to and including active dissent, that makes a democracy healthy.

Even in times of national peril then, as American Jews, each of us is not only free but obliged to stand up for those principles on which the America that we believe in depends.

Rabbis for Human Rights, North America, is circulating a letter, which has attracted hundreds of signatures from rabbis of all denominations, calling for a definitive end to torture and to cruel, degrading treatment of people held by our government.

Rep. Henry Waxman (D-Los Angeles), minority chair of the House Government Reform Committee, is seeking to establish an independent commission to review the abuse of detainees in U.S. custody. Referring to the Jewish practice of teshuvah, Waxman says that "just as individuals ought to face what we've done wrong, return to the proper path and make amends to our fellow human beings, so should countries."

The Union for Reform Judaism also calls for a ban on cruel and degrading treatment of people detained by our government and an end to the practice of "rendition" to countries where torture is routinely practiced.

It is, perhaps, no coincidence that two of RHR's leading anti-torture voices are those of rabbis who grew up in countries where widespread torture occurred. One of these is Rabbi Roberto Graetz. He and his wife, Evelyn, risked their lives to aid Jewish torture victims of the junta that had taken over Argentina.

Graetz, who now leads the Bay Area's Temple Isaiah, is organizing support for the rabbis' anti-torture campaign, which he says is going "steady, but slow." Graetz says that American Jews, like other Americans, remain concerned with "feeling safe" after Sept. 11. While he would not equate the situation facing Americans with his experience in Argentina, he notes that his direct experience has made him acutely aware of the dangers inherent in sanctioned brutality.

Another American rabbi active against torture is Rabbi Brian Walt, executive director of RHR. He recalls that, when he was a young anti-apartheid activist in South Africa, "torture was our greatest fear." Walt says that the fear itself was the ultimate point of the policy, which served to discourage people from ever opposing the government at all.

THE TICKING BOMB

In many popular discussions of torture, attention is shunted quickly to the most extreme and unlikely case: the ticking bombs scenario. In this hypothetical, our government captures a suspect in possession of information about an imminent terror attack. The suspect refuses to talk. Should interrogators torture this person in the interests of saving lives?

RHR's resource guide contains excerpts from responsa, compiled by rabbinic student Weintraub, that suggest the answer almost always is no.

First, a true ticking bomb case would be very rare. It would involve reliable information, gleaned from a primary source; it would include the certainty of death or severe injury to noncombatants; and it would include, of course, the ticking down of a short time frame.

Assuming all this, an advocate of torture in extreme circumstances also has to presume that a ticking bomb terrorist can be made to talk in time. The suspect doesn't have to hold out forever -- just long enough.

Weintraub engages the argument most often put forward in favor of physical or psychological violence against detainees: the rodef defense. Jewish law allows a potential victim or one who would defend a victim to use all necessary force against a rodef, a pursuer. She emphasizes that, for such a defense to apply, "the person being tortured ... is a confirmed perpetrator" and the action taken must be "intended to save a particular victim from imminent, probable harm.... Such action must be spontaneous rather than premeditated, may not harm third-party or innocent bystanders and must cause minimal possible harm to the rodef himself."

Given such safeguards, what if such tactics do work?

Rabbi Elliot Dorff, a signatory of RHR's rabbinic letter, says that we are then in a position in which "two goods" kavod ha-briot (human dignity) and pekuach nefesh (saving life) collide. At that point, a conflicted, agonized Dorff says he understands arguments in favor of interrogators being authorized to seek permission from a judge, available for immediate, emergency review, to "escalate" interrogations.

The position of Dorff, a professor at the University of Judaism, takes him close to that of a secular Jew whose worldview he does not share, Alan Dershowitz. Dershowitz, without agonizing, has famously argued that rather than allowing torture to flourish unchecked in the dark -- as we now do -- interrogators should be allowed to apply for emergency "torture warrants" under ticking bomb conditions. This would ensure that some safeguards would remain in place, forbidding, for example, the unsanitary. (Dershowitz suggests using only sterile needles under fingernails.)

Weintraub of RHR reminds us that the Israeli Supreme Court in 1999 ruled against the a priori authorization of physical coercion by interrogators. The court did allow for a "necessity defense" after the fact in the case of a ticking bomb. Still, the court made clear that every means open to the opponents of democracy may not be open to those who would defend one.

The Israeli judicial system was brought to that legal juncture by the corrupting effect on the Israeli military of policies, meant to address extreme circumstances, that allowed for "physical pressure" on suspected terrorists.

Anecdotal evidence indicates that where torture -- lite or otherwise -- is authorized in advance, things quickly get out of hand. Israeli human rights organizations, such as B'Tselem and the Public Committee Against Torture, document that in the years preceding the Supreme Court ruling, detainees in Israeli military custody were commonly subjected to cruel and degrading treatment. Evidence strongly suggests the same has happened to those caught in our own country's anti-terrorism dragnets.

So where is the outrage among American Jews?

"Some people are afraid that they may be seen to be critical of Israel -- or acting against Israeli interests," Walt says. Perhaps that's because Israel, too, has had a problem with the torture of detainees, which resulted in the Israeli Supreme Court outlawing it in most instances. (See article by Larry Derfner, page 12.)

Despite the Israeli Supreme Court decision, groups like B'Tselem continue to protest alleged human rights violations by the Israeli military. This may be why more than one Jewish liberal, when interviewed for this article, tensed up at the phrase "torture question" and then relaxed upon realizing that they were only being asked to critique the Bush administration, not the State of Israel.

In the end, a similar impetus drove the abuses by both Israel and by the United States. What makes Abu Ghraib -- and worse -- possible is that no powerful force opposed each questionable act.

Each time an interrogator discovers that he can, as Elaine Scarry put it in "The Body in Pain" (Oxford, 1985), unmake another human being -- and the skies don't open; no malach ha-Elohim orders him to stop; there is no legal or social price to be paid -- then what was unthinkable previously becomes a little more possible. Battlefield torture yields to torture for information after the fact, which yields to the opportunistic willingness to use torture as deterrent to instill fear in enemies.

The October 2003 issue of Atlantic Monthly contains an interview conducted by reporter Mark Bowden with Keith Hall, a.k.a. Captain Crunch Hall, a former CIA interrogator among those assigned to find out who bombed the U.S. Embassy in Beirut in 1983. Hall, without remorse, took part, along with Lebanese intelligence operatives, in interrogations during which "suspects were beaten with clubs and rubber hoses or wired up to electrical generators and doused with water."

About one suspect, Hall said, "I sent him back to his cell, had water poured over him again and again while he sat under a big fan, kept him freezing for about 24 hours."

Sure enough, the man finally produced the conspiracy tale involving Syrian agents that Hall had been looking for. Does this story prove anything? The suspect died in custody, and the accuracy of his information was never tested at trial.

It is worth remembering, in this context, that one of the administration "sources" for the supposed connection between Saddam Hussein, Al Qaeda and Sept. 11 was Ibn al-Sheikh al-Libi, an Al Qaeda higherup who "confessed" after his rendition from U.S. custody to the notorious prisons and torture chambers of Egypt. He recanted as soon as he had counsel.

TORTURED JUSTIFICATIONS

Given the available evidence, there is no persuasive justification to deflect outcries against the abuses of Guantanamo, Abu Ghraib, Afghanistan and U.S.-run facilities elsewhere with talk of ticking bombs. Torture became an all-too-routine way to conduct interrogations, even those that determine whether a suspect has anything to tell.

It is absurd to pretend that a society that allows such things is not altered to its core. Pointing to provocations doesn't suffice.

We are told by our attorney general, our president and others that the behaviors now authorized against detainees don't count as torture, because they don't do any lasting physical harm. Even where the assertion is true, no one, after being reduced to a bag of sobbing flesh in a tormentor's hands, is ever the same.

It is worse than specious to make comparisons to fraternity initiations, basic training, voluntary childbirth or any other ordeal to which people submit of their own free will. Such comparisons are themselves a kind of sadistic exercise -- a display of insouciant willingness to play rhetorical games in the face of human anguish, along with an adolescent misunderstanding of toughness as equanimity about someone else's misfortune.

One hears from the same political quarters in which torture by our government is simultaneously denied and excused complaints about the "coarsening" of America into a "death culture" that devalues human life.

But what about the coarsening effect of becoming seduced by "toughness" for its own sake -- to the point where we abandon the values that our strength was supposed to defend? When we look at the Abu Ghraib photos and begin to identify with the man holding the gun, we choose to forget what our interpreted revelation and centuries of history have taught us: We're all defenseless bags of guts under our skin. We become blind to our vulnerable, mortal finitude -- the very condition of our createdness, our Author's greatest gift.

Our Bible teaches us not to rely on chariots, horses or riders. There is always someone stronger than oneself. We did not keep our covenant or our identities alive for 2,000 years by being the baddest mothers in the valley.

The 20th century Jewish philosopher Emmanuel Levinas taught that to find humanity is to return to a "capacity to fear injustice more than death, to prefer to suffer than to commit injustice."

That's why we press for civilization, that fragile net of codes and conventions that protect us from the amoral impulses of the strong. That's why our prophets taught us to speak truth to power and rebuke those who abuse it. Before we're so quick to forget all those nudgy, moralizing, impulses that our sojourn as a minority has taught us, we need to consider the price.

Professor Jeffrey Blutinger, assistant director of Jewish Studies at Cal State Long Beach contributed research to this article.

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