Does Jewish law sanction torture?

Last summer's invasion of Lebanon has led to a growing criticism by Israeli settler rabbis of the Israel Defense Forces (IDF) doctrine of tohar haneshek--"purity of arms." This moral code asserts that force should be used only when necessary and "without inflicting unnecessary harm to human life and limb, dignity and property of both soldiers and civilians, with special consideration for the defenseless."

The rabbis seem to feel that this shows too much concern for Palestinian and Lebanese civilians when IDF soldiers are at risk. The Rabbinical Council of America (RCA), the association of modern Orthodox rabbis in America, has echoed these sentiments.

Then, in a broadside against what many thought was the established prohibition against torture, came a controversial article in The Jewish Week by Orthodox Rabbi Michael Broyde, a law professor at Emory University and leader of the Young Israel synagogue in Atlanta. Broyde argued that "there is no logical reason [to assume] that halacha would categorically prohibit duly authorized torture as a method for acquiring information otherwise not available, in order to save lives in the future." Indeed he went so far as to approve the practice of throwing prisoners reluctant to tell all out of airplanes, presumably to encourage others.

There are three approaches to torture: 1) an absolute ban as required by the Geneva Conventions, which laid out the international standards for the humane treatment of prisoners of war and enemy civilians; 2) some kind of principle of proportionality that would permit different degrees of ill treatment depending on the deleterious consequences of doing nothing--the so-called "ticking bomb" justification where failure to extract information would result in failure to discover a bomb set to go off imminently (although in the real world the bomb is rarely ticking); 3) the view that suggests that if the military command states that there is a valid military goal, all rules can be ignored. Or as the old and cynical French aphorism goes, comme la guerre, guerre--when in war, war.

Both the United States and the Israeli Supreme Courts accept the Geneva Conventions' ban on torture, although there is debate on what exactly counts as torture. Even conservatives like U.S. Senator Lindsey Graham oppose softening the Geneva Conventions' ban on torture because doing so would place our own troops at risk. So can it really be that torture is sanctioned, perhaps required, under Jewish law?

Yes, says Broyde. He seems to argue that Jewish law places "no 'real' restrictions on the conduct of a Jewish army during wartime, so long as the actions being performed are all authorized by the command structure of the military in order to fulfill a valid and authorized goal." As I understand Broyde, torture for entertainment, as in the infamous Abu Ghraib affair, is illicit. However, if the chain of command had authorized the torture in the belief it would be used "to extract vital information that might not otherwise be obtained" then it might not merely be kosher, but mandatory.

But why distinguish between combatants and civilians? Remember, Broyde is prepared to throw a prisoner out of an airplane to encourage his comrades to talk. What if throwing civilians off the plane would better serve that military purpose? And what if it is not information that is sought but the submission of civilian populations? This would justify the 1942 Nazi massacre of the entire village of Lidice if done not only to avenge the death of Nazi leader Reinhard Heydrich, but also to minimize future partisan attacks by striking fear in the Czech population. If collective punishment--even collective murder--would reduce the threat to the IDF, it would presumably be allowable under Broyde's approach.

I of course defer to Broyde's mastery of halachic texts, but if this is really his conclusion, it sadly gives much ammunition to the enemies of Israel. It violates the entire notion of "purity of arms," which the IDF rightly trumpets before the world to underscore Israel's moral high ground. It opens Judaism to all sorts of caricatures critiquing it for moral obloquy. It leaves us without any ability to criticize suicide bombing by terrorists who would argue military necessity.

Broyde appears to neglect not only the principle of proportionality but also the principle of probability--that the military goal or information sought is likely to be achieved by torture. This leads inevitably to a replay of what author Ron Suskind described as Vice President Dick Cheney's "one percent doctrine"--if there is a one percent chance that a threat is real, all restraints are off. Such severing of fact-based analysis from military judgments helped land us in the moral no-man's land of Guantanamo.

In reality, neither the U.S. Army nor the IDF relies solely on military considerations in planning operations. When the U.S. Air Force was weighing targets in Kosovo, its lawyers sat down with the generals to debate issues of proportionality and risk to civilians. And the same occurs, so I understand, when the IDF is considering targeted assassinations.

For governments, as for religious leaders and troops on the ground, war always poses moral dilemmas. The suggestion that there is no need to regulate war absent military convenience is a chilling prospect.

Marshall Breger is a professor of law at the Catholic University of America.