Torture and the American Soul

Gina Haspel, President Trump’s nominee to head the CIA now that former head Mike Pompeo has become Secretary of State, is facing stiff opposition on Capitol Hill primarily over two specific issues: the question of the use of torture to extract information from prisoners at a secret CIA “black site” detention facility in Thailand that Haspel supervised in 2002 and her role in the 2005 destruction of almost 100 videotapes of interrogation sessions, some of which are thought to have captured scenes of actual prisoners and detainees being tortured. Speaking indirectly to both charges, Haspel on Wednesday told the Senate Intelligence Committee that she will not reinstitute the brutal interrogation techniques that were in use in Thailand when she was in charge there and elsewhere. Haspel did not, however, condemn torture as an absolute wrong, thus suggesting that there may well be circumstances under which even the most violent, pitiless and ruthless techniques for eliciting information from detainees could be justified.

Most of the authors I’ve been reading lately who oppose the use of torture to extract information from prisoners fall largely into one of two categories.

Some understand the use of torture regardless of circumstances to constitute what legal philosophers call a malum per se, something that is morally wrong “in and of itself” in which moral wrongness inheres by its very nature, as opposed to the malum prohibitum, which term references the act that is wrong only because it is prohibited by law. (The law requiring people to drive on the right side of the road would be a good example of that latter—a perfectly reasonable law that forbids behavior no one would describe as intrinsically evil.)

Still others, perhaps less philosophically inclined, oppose torture on the practical grounds that they feel that it rarely, if ever, yields truly useful information because it merely brings the individual being tortured to the point at which he or she will say anything at all to gain relief and because information so acquired is therefore highly unlikely actually to be accurate. As an example, people in this camp point to the torture-obtained admission by Khaled Sheikh Mohammed, the Pakistani national named in the 9/11 Commission Report as “the principal architect of the 9/11 attacks,” that he had recruited black Muslims in Montana to carry out future terror attacks, a confession that he later recanted and which apparently had no truth to it at all.

To help refine my own thinking on the matter, I’ve had recourse in the last few days to two important works: Torture: A Collection, an extremely interesting and rich collection of essays published by Oxford University Press in 2004 and edited by Sanford Levinson, a professor at the University of Texas Law School; and a very long and detailed essay by Rabbi J. David Bleich called “Torture and the Ticking Bomb” published in 2006 in Tradition, the quarterly journal of the Rabbinical Council of America, the largest organization of Modern Orthodox rabbis. (Used copies of the Levinson book are available for purchase online for less than $2.50; to see Rabbi Bleich’s essay, click here.) In the Oxford volume, I was particularly taken with the essays by Miriam Gur Aryeh and Alan Dershowitz. But I’d like to focus primarily today on Rabbi Bleich’s argumentation.

After a long and very interesting survey of modern and pre-modern approaches to the topic, he turns to a specific question of Jewish law, the one concerning the ticking bomb mentioned in the title of his essay. He begins by noting that the Torah’s commandment at Leviticus 19:16 to the effect that one may “not stand idly by the blood of another” has been interpreted since ancient times to mean that there is a legal, not merely a moral, obligation to come to the aid of someone who’s life is in danger. And then he poses the question about torture against the background of that concept by proposing a situation in which terrorists have placed a weapon of mass destruction, say a “dirty” bomb or even a more sophisticated nuclear device, in a public place where it will take the lives of thousands if it explodes. And let’s imagine further than one of the terrorists, one who is considered at least likely to know the specific location of the bomb, is apprehended, but refuses to reveal what he knows. Is there a moral limit to the amount of force that may be applied to extract that information from such a prisoner?

There are lots of ways to approach the question. Is it a matter solely of numbers? In other words, the example above imagined thousands of lives on the line. But what if it were tens or hundreds of thousands? What if it were millions? And that is where the distinction between a malum per se and a malum prohibitum comes into play. Is the prohibition of torture a line that by its very nature may never be crossed? Or is it just a bad thing that rarely produces good results and that the law therefore rightly forbids…but which could be morally justified under certain specific circumstances? The Romans used to say fiat justitia et pereat mundus (“let justice prevail even if the world be destroyed”). Those words have a noble ring to them…but the acid test is not whether you would learnedly cite them in a law school application essay but whether you, who are on record as abhorring the use of torture, would dare say them aloud to someone whose children are in the city where the bomb has been planted and where it will probably, or even just possibly, explode if its location is not discovered in time.

Rabbi Bleich begins his analysis by introducing the concept of the rodeif, the “pursuer.” According to Jewish law, when someone’s life is in danger because that individual is being pursued by someone who appears intent on killing him or her, it is deemed permissible to save the individual being pursued even if the sole means available to do so requires taking the life of the pursuer. This is how the mandate not idly to stand by the blood of another mentioned above is applied in our sources: there is an absolute obligation to safeguard life and, in a situation in which one individual is attempting to kill another, it is not merely permitted but required to do what it takes to make sure that the pursued party survives even if doing so costs the pursuer his or her life.

In the situation described above, the one in which the apprehended individual has information about the location of the bomb, is that individual a rodeif? What if there is no evidence that this specific individual did anything at all—and certainly not that he armed the bomb or knows how to disarm it—but merely might know where it is. Is that enough to make him into a rodeif whose survival may be risked for the sake of saving others? That, Rabbi Bleich maintains, is the question at the heart of the matter. The prisoners the CIA waterboarded to make talk were not at that moment trying to kill anyone. But they had information, or possibly had information, that could have saved the lives of innocents. Does that justify doing what it takes to make them tell what they know? (And, no, you don’t get to have a different opinion if the innocents in question are your own children or other people’s.)

What comes through in Rabbi Bleich’s analysis again and again is how complicated this all is. When the prisoner is being tortured, there is often no way to know in advance if he possesses any usual information at all. Nor is it possible in advance to know if the information successfully elicited with have any worth. Also in the mix is the understanding of our Torah that the prisoner also has a sacred obligation to save human life. So getting such a prisoner to provide information that could conceivably save thousands is somehow both an assault on his physical being and a way of assisting him or her to behave ethically.

For most of us, it also depends how the question is phrased. When asked if torturing prisoners to see what they might know is morally defensible, for example, I think most of us would easily answer in the negative. But when asked if there should be limits placed on the CIA agents attempting to elicit information that could potentially save the lives of, say, a thousand school children, I think most of us would answer quite differently. Nor does this inconsistency have to do solely with the number of potential lives saved. When the question references physical pain, as in electrical shocks or simulated drowning, some of us would condone torture and others would oppose its use. But if the question were to be rephrased to reference sexual assault—for example, if we were to be asked to approve of a female prisoner being repeated and brutally raped to elicit information from her, even of the kind that could save innocents—my guess is that most of us would refuse categorically to condone the practice.

Finally, Rabbi Bleich mentions the concept of hora∙at sha∙ah, the temporary suspension of the law. Americans will think back to the Alien and Sedition Acts of 1798, to Lincoln’s Civil War suspension of habeas corpus, and to the detention without trial of Japanese-Americans during the Second World War. But this notion that even the most basic laws may be suspended in times of great national peril is part of Jewish tradition as well and extends under certain circumstances even to the most basic prohibitions.  So, in the end, the question really is whether the war against our nation’s enemies, particularly violent extremists like Al-Qaeda and the Islamic State, is enough to justify the suspension of our natural disinclination to condone torture as a “regular” means of eliciting information from our nation’s foes. Some will stick to the malum per se argument and say, with the ancients, fiat justitia et pereat mundus. But others will think back to 9/11 and recall that our tradition also teaches that saving even a single life is the moral equivalent of saving the entire world.