Volume 54 Number 32
Produced: Sun Mar 18 9:33:36 EDT 2007
Subjects Discussed In This Issue:
Dr. Broyde's article on Jewish Law And Torture
[Jeanette Friedman]
Ethics, Morality and Halacha
[Joshua Goldmeier]
Mi she-Berakh for Agunot (3)
[Yael Levine, Brandon Raff, <ERSherer@...>]
Torture (2)
[Samuel Groner, Joseph Kaplan]
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From: <FriedmanJ@...> (Jeanette Friedman)
Date: Fri, 16 Mar 2007 08:32:41 EDT
Subject: Dr. Broyde's article on Jewish Law And Torture
[The following is an op-ed piece that appeared in the Jewish Week, and
is reprinted here with Dr. Broyde's permission. Mod.]
Jewish Law And Torture
Michael J. Broyde
The use of torture during wartime strikes us as conduct hard to accept
and easy to condemn. The torture of prisoners denies their basic human
dignity, encourages a downward ethical spiral among our own soldiers,
and calls to mind our long history of vicious suffering as Jews.
Yet, the truth is that wartime entails the general suspension of our
ethical sensibilities. In war, each side seeks to kill the soldiers,
military support staff, and political leadership of its enemy. And with
the battlefield widened by the modern military-industrial complex, even
civilian deaths have become a sad (but sometimes necessary) part of
combat. Warfare entails conduct that is not morally ideal, and
recognizing this is extremely vital.
Furthermore, the current discussion about the morality of torture
continues to be badly framed by the immoral conduct of U.S. soldiers at
the Abu Ghraib prison in Iraq three years ago. There, prisoners were
tortured for entertainment by U.S. troops, unrelated to any valid
military objective. It is easy to denounce this form of torture, and it
is proper to do so.
However, this is very different from a serious conversation about
torture in the Jewish tradition during wartime, which poses several
harder and more complex questions: In what situations may torture be
used in the course of war to extract vital information that cannot
otherwise be obtained? Might brutality be a legitimate way to punish
those who have engaged in warfare against the community, so as to
persuade others to cease their actions? And most importantly, how much
of Jewish law and ethics are suspended during wartime?
Consider three challenging, real-world cases:
During World War II when the Free French Forces of the Interior
continued to fight German occupation forces in France, Germany refused
to treat members of the French Army as combatants - even though they
wore insignia, carried their arms openly, and were in touch with both
the Allies and the French provisional government in Algeria. The Germans
subjected French captives to summary execution despite formal protests
by the provisional government in exile. The French threatened reprisals,
and when the executions did not stop, they shot 80 German prisoners
under their control, which they had "borrowed" from the British. Only
then did the killings of French soldiers cease. The only other
alternative would seem to have been the wholesale death of many French
soldiers.
So too, consider the problem in the Vietnam War of convincing captured
North Vietnamese officers to share information with American
intelligence. This was a difficult task, but American officers found
that the single most effective way to get such captives to surrender
information was to take five prisoners up in a helicopter and ask one of
them a question. If he refused to answer, he was summarily pushed out of
the helicopter and the next prisoner was questioned. This method,
however brutal it seems to us civilians, produced the needed results.
Finally, consider the case of the captured al Qaeda operative who might
have vital information that he would not voluntarily relinquish. Is
abusing the Koran in his presence permissible? What about interrogation
by menstruating women soldiers? Moderate physical shaking? Hooding for
extended periods of time? Even water torture in the hands of a team of
skilled professionals who believe that this process will extract
information of value and save the lives of others would seem permissible
in a time of war.
These are the hard questions torture poses. In a recent monograph
published by the Center for Jewish Studies at Queens College as well as
a forthcoming chapter in an Orthodox Forum volume, I have shown that
torture is permissible and consistent with halacha in all situations
where there is a proper, thoughtful military chain of command (the
higher up a decision goes, the more thought tends to be put in) and no
other reasonable alternative is available. The basic argument is that
the wholesale suspension of the sanctity of life that occurs in wartime
also entails the suspension of such secondary human rights issues as the
notion of human dignity, the fear of the ethical decline of our
soldiers, or even the historical fear of our ongoing victimhood.
Furthermore, the protection of our own soldiers and civilians
undoubtedly trumps the claims of human dignity by those who seek to do
us evil. International law, which Jewish law generally expects its
adherents to obey, is limited in its scope to those who pledge
themselves to its obedience. Neither Hezbollah nor Hamas nor al Qaeda
are signatories to the Geneva Convention and do not conduct themselves
in accordance with its provisions. They certainly do not treat prisoners
they capture in accordance with its requirements (as shown by the recent
murder of two captured American soldiers in Iraq). Thus we are not
required as a matter of international law to treat their prisoners in
accordance with the convention on the treatment of prisoners.
In sum, according to Jewish law and ethics, torture in the context of
war is no more problematic than death itself, and is permitted by the
general license to wage war. There is no logical reason that halacha
would categorically prohibit duly authorized wartime torture as a method
for acquiring information otherwise not available, in order to save
lives in the future. Of course, not all conduct permitted as a matter of
Jewish law is wise or prudent; the consideration of which policies work
in what settings is fundamentally not a question of Jewish law or
ethics, but one for military and political leadership.
We all pray for a time when the world will be a peace - but until that
time arrives, Jewish law directs the Jewish state and the American
nation to do what it takes (no more, but no less, either) to survive and
prosper ethically in the crazy world in which we live. n
Michael J. Broyde is a law professor at Emory University and rabbi of the
Young Israel synagogue in Atlanta. He has authored, co-authored and
edited numerous works in Jewish law and law and religion, including the
forthcoming "The Bounds of Wartime Military Conduct in Jewish Law: An
Expansive Conception" (City University of New York/Queens College).
Special To The Jewish Week
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From: Joshua Goldmeier <Josh@...>
Date: Fri, 16 Mar 2007 08:24:49 -0600
Subject: Re: Ethics, Morality and Halacha
Jeanette says: "but then again, I have discovered that ethics and
morality don't often have anything at all to do with halacha."
I would ask that Jeanette amend her statement to read "but then again, I
have discovered that todays (or present) ethics and morality don't often
have anything at all to do with halacha."
Ethics and morals throughout the ages has been subjective and
ever-changing. To make an inflammatory statement as this about todays
ethics is unfair. The Torah ascribes a certain ethical system and
allows for us to adjust it under certain conditions. This statement
though, while typed in obvious frustration, is simply incorrect.
To answer JF's question, I agree with Avi. The question is leading. It
should have read - "what is the halacha regarding torture". Instead it
read "Is there a halacha against torture." Yes to both and no to the
second as well. Like every other halacha (except the BIG THREE), there
are times when things are allowed and when they are not. Eating 100%
treif (non-kosher food) is allowed under very specific conditions, yet
there are many halachos against it!
Please do not take my refrain from answering your question earlier as
insulting. I do not know the specifics and waited to see what others
wrote. A king is only a halachic king if he has the power to determine
life and death. But, tzaar baalei chaim comes into play as well. So,
there ARE ways to see halachos ABOUT torture - pro and con.
BTW, you can have the seat in the office next to me, I spent alot of
time there. :) (we may have to put up a mechitza and you may have to
move your seat behind me, but we can be there together.... :) ).
Shaya Goldmeier
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From: Yael Levine <ylevine@...>
Date: Fri, 16 Mar 2007 13:51:25 +0200
Subject: Mi she-Berakh for Agunot
In his post, Avi wrote "I have read Yael's original Hebrew text and
Lisa's english translation, and I do not see any clear errors in the
translation, surely not items that are entirely incorrect in the
majority of places". I'd like to first state that I stand behind my
statement that in many places the translation is defective. I would not
have initially wrote this had I not been totally sure, so it's somewhat
puzzling that this was at all doubted. I will mention several
examples. I definitely don't intend to state all of the problematic
places. In the first paragraph the translation states: "...all chained
women and those who have been refused a writ of divorce in Israel". The
Hebrew is "bi-Yisrael", but the meaning is "Jewish". Further on the
translation erroneously states: "God who releases prisoners
rightly". The nusah in Hebrew is "motzi asirim ba-kosharot". The meaning
is according to the biblical source, and inter alia to Radak ad loc,
"G-d who releases prisioners from their chains". "kosharot" are
chains. The translator further erroneously wrote "...raise up their
redemption". The Hebrew is "yarim et karnan". "karnan" is not at all
redemption. It is further stated: "bring up to them length of days and
health". The Hebrew nusah is "ya'ale la-hen arukha u-marpe". This is
based on a biblical verse. The meaning of "arukha" is not at all "length
of days" but rather is synonymous to health, i.e. G-d will repair and
heal them. "may they have no ___ or brokenness." This was left blank, of
course. The Hebrew is based on a verse in Eicha.
I believe these examples suffice to demonstrate my clear cut assertion
that the translation is faulty. Again, I find it unfortunate that my
initial claim was put under question.
Yael
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From: Brandon Raff <Brandon@...>
Date: Fri, 16 Mar 2007 17:32:41 +0200
Subject: Re: Mi she-Berakh for Agunot
>A work that has been distributed is definitely still copyright by the
>author, according to the copyright law. Even if a copyright sign is not
>appended to a work, it is copyright by the author. This means that one
>may not print it in written sources, and put it on the net, translate, make
>a tune to it, etc., only by consent of the author. etc. I suggest you
>check the copyright law. Additionally, since Lisa translated directly
>from my prayer, it is a violation of the copyright. It is not a new
>prayer. She herself never claimed it was.
>
>Yael
Of interest to me is the question of whether a prayer can be
copyrighted at all. If I say a personal prayer and I tell no-one its
content, then fine, it is a personal prayer. But if you write a prayer
with the intent that people recite it in public ie in a Shul on Shabbos,
then the prayer is not a personal prayer, but a public prayer, and as
such how can you copyright something that belongs to the public?
Furthermore, what is the halachic perspective on copyright laws?
Finally, Nathan Merel in his introduction to his books The Coat of the
Unicorn, a superb book looking and discussing themes throughout the
Torah, writes:
" Hashen Chaftz Lema'an tzidko, yagdil Torah ve'yadir Kol ha'omer davar
beshem omro, mayve geula le'olam. (my transliterations)
Anyone may copy, photograph or translate from this book, as it is
written:
"The Lord was pleased for His Righteousness' sake, to make the Torah
great and glorious. " (Mishlei 42:21)
However, the following teaching of Chazal should be respected:
"Whoever reports a saying in the name of its originator, brings
redemption to the World." (Megillah 15a) "
Why would you want to copyright a prayer? If your reason for writing the
prayer is altruistic, surely you want it freely distributed so that
everyone can pray to Hashem to have mercy on the agunahs?
Brandon
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From: <ERSherer@...>
Date: Fri, 16 Mar 2007 11:19:03 EDT
Subject: Re: Mi she-Berakh for Agunot
And BTW, can a prayer that has been distributed widely be
copyrighted?
SBA
Unless the party claiming the copyright is the author of the prayer. The
Constitution, in authorizing Congress to create such things as
copyrights and patents spoke to protecting the rights of those who
created what is copyrighted or invented something original.
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From: Samuel Groner <samgroner@...>
Date: Fri, 16 Mar 2007 10:41:10 -0400
Subject: Re: Torture
I agree with Avi that this is not a simple question to answer. I'd
recommend reading the four articles discussing this topic in the most
recent issue of the journal formerly known as edah as an intro to the
various issues that this topic raises.
See http://www.yctorah.org/content/view/211/66/
But if you're looking for a bottom line ruling that torture is not
allowed, here is one, cited by Dov Zakheim's article ("Confronting Evil:
Terrorists, Torture, the Military, and Halakhah") there:
"While R. [Yehudah] Henkin focuses on killing a bound or restrained
prisoner, he notes more generally that there certainly is an issue of
hillul ha-Shem with respect to any sort of practice that evokes
universal condemnation by 'the nations, their scholars and their
governments.' As noted at the outset of this essay, torture has been
banned by the Geneva Conventions."
So what is the halacha against torture? According to one authority,
the answer is the halacha that we must not make a hillul ha-Shem.
Sammy Groner
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From: Joseph Kaplan <penkap@...>
Date: Fri, 16 Mar 2007 16:25:00 -0400
Subject: Torture
Jeanette Friedman writes: "the answer is that there is NO Halacha
against Torture, and it is perfectly ok to torture someone." I suggest
she read Dov Zakheim's article in Meorot (formerly, the Edah Journal)
before she gives such a simple answer to such a complex question. To
quote briefly from the abstract of the article: "Only when it is
absolutely clear that a prisoner possesses information that could result
in near-term loss of life, the so-called case of the 'ticking bomb,' is
it arguable that prisoner abuse might be tolerated."
Perhaps Jeanette should go to the principal's office not for having
asked the question but for having given too simple of an answer.
Joseph Kaplan
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End of Volume 54 Issue 32