1. Améry, Jean, At the Mind's Limits: Contemplations by a Survivor on Auschwitz and its Realities 22 (Rosenfeld, Sidney & Rosenfeld, Stella P. trans., Ind. Univ. Press 1980)Google Scholar.

2. There is increasing debate among scholars, however, about Jews' actual participation in and exercise of military power. See, e.g., Penslar, Derek, An Unlikely Internationalism: Jews at War in Modern Western Europe, J. Modern Jewish Studies 309 (2008)Google Scholar.

3. This definition incorporates many of the elements found in the United Nations' Convention Against Torture, Article 1.1. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, U.N. Doc. A/39/51 (1984). That definition does not include torture done for the sake of conversion, however. Also, UNCAT has rightly been critiqued for dismissing domestic abuse as a form of torture insofar as it is not perpetrated by state agents. Though this critique could also be levied against my definition, my focus is precisely state torture and not torture performed by non-state agents.

Klapper suggests that “the torturer inflicts pain so as to convince the prisoner to do his or her will, whereas killing acknowledges an irreconcilable conflict of wills.” Klapper, Aryeh, Warfare, Ethics and Jewish Law, 6/1 (Shevat 5767) Meorot 3, 9 (2006), available at http://www.edah.org/backend/coldfusion/journal_images/Meorot%20Complete%20Version-Jan%202007.pdfGoogle Scholar. See the definitional discussion of torture in Rejali, Darius, Torture and Democracy 36 (Princeton Univ. Press 2007)Google Scholar. Kirschenbaum, Aaron, Torture Confession, and American Plea Bargaining: A Jewish Legal Perspective 1 (Univ. Cincinnati Judaic Stud. Program 1991)Google Scholar distinguishes judicial torture in criminal administration that seeks confession from torture “for purposes of revenge, terrorism or sadism.”

Himself a victim of Nazi torture, Jean Améry asserts a qualitative difference between medieval torture and contemporary torture. During the Inquisition, both the torturer and the captive shared a theological assumption about their pained relationship: “The torturer believed he was exercising God's justice, since he was, after all, purifying the offender's soul; the tortured heretic or witch did not at all deny him this right.” Jean Améry, supra note 1, at 34. In today's torture, Améry concludes, such theological commonality no longer obtains; the torturer “is solely the other.” This distinction remains to be proven. Id.

4. See Bleich, David J., Survey of Recent Halachic Literature: Torture and the Ticking Bomb, 39 Tradition 89, 91 (Winter 2006)Google Scholar; Zakheim, Dov S., Confronting Evil: Terrorists, Torture, the Military and Halakhah, 6/1(5767) Meorot 3, 12 (2007), available at http://www.edah.org/backend/coldfusion/journal_images/Meorot%Complete%20Version-Jan%202007.pdfGoogle Scholar.

5. This is why the recent American Attorney General Alberto Gonzales' definition of torture as that which may lead to organ failure and death is misguided. Such treatment deserves to be called torturous execution, not torture. See discussion in Testimony of Douglas A. Johnson, Executive Director, The Center for Victims of Torture, Hearing on the nomination of The Honorable Alberto R. Gonzales, Counsel to the President George W. Bush to be the Attorney General of the United States 6, 8 (01 6, 2005), http://www.cvt.org/files/pg55/Gonzales%20confirmation%20testimony.pdf (last visited Dec. 18, 2010)Google Scholar.

6. Some of the most famous Jewish martyrological texts pertain to the so-called Ten Martyrs: sages killed by the Roman government. Their crime: teaching Torah publicly. See BT Sanhedrin 14a; BT Semahot 8.9; BT Avodah Zarah 18a; Sifre Devarim § 307; BT Berachot 61b; and elsewhere. The Ten Martyrs are remembered liturgically in the Eleh Ezkarah prayer, invoked on Yom Kippur and, in a variant by some communities, on Tish B'Av. See Finkelstein, Louis, The Ten Martyrs, in Essays and Studies in Memory of Linda R. Miller 29 (Davidson, Israel ed., Jewish Theological Seminary Am. 1938)Google Scholar; Blidstein, Gerald J., Rabbis, Romans, and Martyrdom—Three Views, 21 Tradition 54 (Fall 1984)Google Scholar.

For a discussion differentiating punishment from torture, see Rejali, supra note 3, at 561. In a similar vein, the Biblical injunction 'ayin tachai 'ayin (eye for eye) recalibrated punishment so that aggressors were not punished more (or less) than what they inflicted on their victims. This retaliatory (lex talionis) mode of punishment was reinterpreted by the rabbis into pecuniary and penal punishments. For these reasons it is misleading to incorporate these texts in this deliberation of torture.

Nor does this paper examine the complex issue of capital punishment. By definition, one goal of capital punishment is a captive's death, not continued life (however painful). The Talmudic notion of mitah yafah, a beautiful or good death, refers to hastening a captive's death instead of unnecessarily prolonging the pain of dying, as is involved in normal execution procedures. See BT Sanhedrin 45a, 52a.

7. This paper examines modern Jewish scholarship primarily but not exclusively developed in North America. Though court decisions in Israel and in the United States are referenced, this paper does not offer an exhaustive analysis of state jurisprudential treatment of this topic.

8. Jacobs, Louis, What Does Judaism Say About …? 319 (Quadrangle 1973)Google Scholar.

9. BT Ketubot 33b and BT Yevamot 25b. More on self-incrimination infra.

10. Jacobs, supra note 8, at 319.

11. Capitulation differs from confession, and these halakhic texts are discussed infra.

12. Kalmanofsky, Jeremy, Rosenn, David & Weintraub, Melissa, Torah Against Torture, N.Y. Jewish Week, 10 6, 2006, available at http://www.rhr-na.org/resource/torah-against-torture-a-sample-opedGoogle Scholar.

13. Reconstructionist Rabbinical Association, Resolution on the Use of Torture and Abuse of Detainees by the United States (2005). See also Reconstructionist Rabbinical Association, Resolution on Further Steps in the Struggle to Abolish Torture under United States' Authority (Mar. 2008), http://www.theira.org/resolutions/RRA_Resolution_Anti-torture_2008.pdf (last visited Dec. 18, 2010).

14. M Avot 3.15; BT Baba Metzia 58b-59b; BT Sanhedrin 99a and 107a; Torah, Mishneh, Teshuvah 3.14Google Scholar; Torah, Mishneh, De'ot 6.8Google Scholar. See discussion of these and related shame-full texts in Crane, Jonathan K., Shameful Ambivalences: Dimensions of Rabbinic Shame, AJS Rev. (forthcoming 2011)Google Scholar.

15. This line of reasoning is found in Weintraub, Melissa, Kvod Ha-Briot: Human Dignity in Jewish Sources, Human Degredation in American Military Custody, Rabbis for Human Rights—North America (2005), available at http://www.rhr-na.org/kyod_habriot/treatiseGoogle Scholar; Reconstructionist Rabbinical Association, supra note 13 (2005); Luban, David, Human Dignity, Humiliation, and Torture, 19 Kennedy Inst. Ethics J. 211 (09 2009)CrossRefGoogle ScholarPubMed.

16. See Rubenstein, Jeffrey L., The Bavli's Ethic of Shame, 53 Conservative Judaism 3, 27–39 (2001)Google Scholar; Wimpfheimer, Barry, “But It Is Not So”: Toward a Poetics of Legal Narrative in the Talmud, 24 Proooftexts 51, 51–86 (2004)Google Scholar.

17. BT Berachot 19b; BT Shabbat 81a-b; YT Kilayim 9.1; YT Nazir 7.1; YT Berachot 3.1; MT Kilayim 10:29; Meiri, Menachim, Beit HaBechirah, Berachot 19bGoogle Scholar.

18. See Feld, Edward, Developing a Jewish Theology Regarding Torture, 63 Theology Today 324 (2006)CrossRefGoogle Scholar, reprinted in Torture is a Moral Issue: Christians, Jews, Muslims, and People of Conscience Speak Out 141 (Hunsinger, George ed., William B. Eerdmans Publ'g Co. 2008)Google Scholar; Lippmann, Ellen, These Things I Remember as I Pour Out My Heart: A Sermon for Kol Nidre 5766, in Torture is a Moral Issue: Christians, Jews, Muslims, and People of Conscience 152 (Hunsinger, George ed., William B. Eerdmans Publ'g Co. 2008), available at http://www.kolotchayeinu.org/rabbi/KolNidre5766.pdfGoogle Scholar; Weintraub, supra note 15.

19. Another overarching principle that antitorturist advocates could invoke states that “a man should always strive to be of the persecuted rather than of the persecutors.” BT Baba Batra 93a Scholars would then need to demonstrate that this principle also applies to governments and their agents.

20. See, e.g., Goldberg, Edwin C., Swords and Plowshares: Jewish Views of War and Peace (URJ Press 2006)Google Scholar; Luban, supra note 15; Zakheim, supra note 4.

21. It should be no surprise that the Israeli Supreme Court acknowledges Israel's allegiance to this body of international law. See ISC (1999), ¶ 23 (“Text of Supreme Court Decision on GSS Practices: September 6, 1999.” Authored by A. Barak).

22. Similarly, scholars who argue that Judaism supports modern notions of human rights and such international conventions often conflate politics and religion. See discussion in Crane, Jonathan K., Why Rights? Why Me?, 35 J. Religious Ethics 559 (2007)CrossRefGoogle Scholar.

23. Some also make grand assertions about history—what Jews actually did—but do so primarily from the laws on the books and not from historical studies. For example, “torture as a mode of investigation is virtually unheard of in Jewish history. The police authorities gain nothing from confession and the accused loses nothing by such confession. Perhaps the obviation of torture as a judicial tool was the very intention of Biblical law and rabbinic interpretation.” Braz, Isaac, The Privilege Against Self-incrimination in Anglo-American Law: The Influence of Jewish Law, in Jewish L. & Current Legal Problems 161, 163 (Rakover, Nahum ed., Libr. Jewish L. 1984)Google Scholar.

24. Klapper, supra note 3. See infra notes 136-41 for further discussion of hora'at sha'ah.

25. Zakheim, supra note 4; Weintraub, Melissa, But Does Torture Save Lives?: Torture, Pikuakh Nefesh, and the Rodef Defense, Rabbis for Human Rights—North America (07 31, 2005, 6:00 AM), http://www.rhr-na.org/files/docs%20torture%20save.pdf (last visited Dec. 20, 2010)Google Scholar; Crane, Jonathan K., With a Mighty Hand: Judaic Ethics of Exercising Power in Extraordinary Warfare, in Enemy Combatants, Terrorism, and Armed Conflict: A Guide to the Issues 184–206 (Linnan, David K. ed., Praeger Security Int'l 2008)Google Scholar.

26. See Kirschenbaum, supra note 3 for an example of this line of reasoning. Instead of presuming that torture automatically leads to death, Kirschenbaum could have focused on court-ordered flagellation, a permitted though disparaged punishment. Had he focused on this non-lethal punishment, he still could have reached his desired conclusion that self-incrimination warrants no torture and would have done so by focusing on texts that relate more directly to torture per se.

The sagacious Israeli Supreme Court Judge Haim Cohn claims:

While it is nowhere said in so many words, the reason for the exclusion of all self-incriminatory evidence may well have been the desire to prevent confessions being elicited by torture or other violent means. It is a fact that—unlike most contemporaneous law books—neither Bible nor Talmud provide for or know of any interrogation of the accused as part of the criminal proceedings, so that there was no room at all for attempts to extort confessions.

Cohn, Haim H., Human Rights in Jewish Law 214 (Dtav Publ'g House, Inc. 1984)Google Scholar.

See discussion in Rosenberg, Irene Merker & Rosenberg, Yale L., In the Beginning: The Talmudic Rule Against Self Incrimination, 65 N.Y.U. L. REV. 955, 1038 n. 303 (1988)Google Scholar. Cohn, surprisingly, either glosses over or is ignorant of halakhic texts structuring interrogation procedures. More on these procedures of extracting confessions infra at 126.

27. An interesting exception to these patterns is a statement by Rabbinical Assembly, the professional organization of Orthodox rabbis. Their 2005 “Resolution on Freedom, Democracy, and the Humane Treatment of Prisoners,” states that because “Jewish history and tradition teach that justice must triumph over violence,” and because “serious questions have been raised about the ethics of torture by any nation as a means of gaining information, even under emergency circumstances,” they therefore “affirm that only by preserving the rule of law and the rights of the individual does any nation earn its place as a moral leader on the world scene.” Rabbinical Assembly Resolution on Freedom, Democracy and the Human Treatment of Prisoners, in Passed Resolutions 16 (2005), http://www.rabbinicalassembly.org/docs/2005resolutions.pdf (last visited Dec. 23, 2010)Google Scholar. Why they engage neither Jewish principles nor halakhah seriously in this document (they do both in other resolutions) remains unclear. And it is curious when they state that questions arise because of torture, but do not clarify which questions. Such ambivalence begs questions about their resolve.

28. Broyde, Michael J., Jewish Law and Torture, N.Y. Jewish Week, 07 7, 2006, at 20Google Scholar [hereinafter Broyde, Jewish Law & Torture]. He makes a similar point in Broyde, Michael J., Only the Good Die Young?, 6/1 (Shevat 5767) Meorot 19, 22 (2006), available at http://www.edah.org/backend/JournalArticle/Conversation%20-%20Final.pdf [hereinafter Broyde, Only the Good]Google Scholar.

29. See discussion in Rejali, supra note 3; Matthews, Richard, The Absolute Violation: Why Torture Must Be Prohibited (McGill-Queen's Univ. Press 2008)Google Scholar.

30. Broyde, Jewish Law and Torture, supra note 28. See also Broyde, Michael J., Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!, in War and Peace in the Jewish Tradition 1, 4 (Schiffman, Lawrence & Wolowelsky, Joel B. eds., Yeshiva Univ. Press 2007) [hereinafter Broyde, Just Wars]Google Scholar.

31. “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.” Broyde, Jewish Law and Torture, supra note 28, at 20. His use of “wholesale” is similarly suspicious, for contemporary warfare also includes efforts to sustain civilian—and military—lives. Klapper, supra note 3 challenges these assumptions.

Broyde also rejects the proposition to prohibit torture based on “a secondary rabbinic prohibition as the appearance of impropriety (mar'it ayin), particularly given that the Talmudic sages repeatedly rule that such concerns do not apply to public communal conduct.” Broyde, Only the Good, supra note 28, at 4. It is unclear why Broyde highlights this “secondary” rabbinic principle and not another, such as modeling righteous behavior to Gentiles (or l'goyim)—a principle the Talmudic sages repeatedly cite to remonstrate Jews to act individually and collectively in ways that will strengthen Jewish-Gentile relations. Even if the latter principle challenges his conclusion, he must still demonstrate how and why the former principle takes priority.

32. Broyde fails to demonstrate the veracity of this claim here.

33. Broyde may be referring to the incident involving Pfcs Menchaca and Tucker. See Filkins, Dexter, Bodies of G.I. 's Show Signs of Torture, Iraqi General Says, N.Y. Times, 06 20, 2006, available at http://www.nytimes.com/2006/06/20/world/20cnd-iraq.htmlGoogle Scholar.

34. Broyde, Jewish Law and Torture, supra note 28. Elsewhere, Broyde, Just Wars, supra note 30 supports the notions of punishing enemy combatants collectively, regardless of their individual guilt, and punishing them beyond the letter of the law.

35. See Broyde, Only the Good, supra note 28; Broyde, Jewish Law and Torture, supra note 28; Broyde, Just Wars, supra note 30.

36. Broyde, Jewish Law and Torture, supra note 28. See discussion of this conclusion at Zakheim, supra note 4, at 18.

37. Broyde, Only the Good, supra note 28, at 4. A few sentences earlier, Broyde states, “it is logical to assume that license to kill in wartime when such is unavoidable to achieve a proper military goal also grants a license to suspend any other rabbinic (and Torah) commandments when such suspension is militarily necessary to triumph, including torture.”

38. Id. at 5. He makes a similar move from greater to minor in Broyde Just Wars, supra note 30, at 4.

39. See Matthews, supra note 29, at 32ff.

40. Broyde, Only the Good, supra note 28, at 5, (citing Aruch, Shulchan, Choshen Mishpat 425:1Google Scholar). In Broyde, Just Wars, supra note 309, at 33, n. 30, he interprets this same halakhah dramatically differently: “Jewish law compels a Jew to take the life of a pursuer (Jewish or otherwise) who is trying to take the life of a Jew.” Here Broyde dismisses this interpretation by silencing the halakhah's insistence that nonlethal intervention be used first and foremost. Maimonides insists that such over-aggression is tantamount to murder (Torah, Mishneh, Rotzeach U'Shmirat Nefesh 1.13)Google Scholar. Other classical sources that preference nonlethal intervention include BT Sanhedrin 74a; Torah, Mishneh, Rotzeach U'Shmirat Nefesh, 1.8Google Scholar; Piskei haRosh to BT Baba Kama 3:13, 126a; and Aruch, Shulchan, Choshen Mishpat 421:13Google Scholar.

41. In regard to the former, Broyde, Only the Good, supra note 28, at 3, states

War is thus not the law of pursuer writ large, and it is not the rules of ba ba-machteret [laws about anticipating a supposedly lethal attacker, extrapolated from Exodus 22:1; see also BT Sanhedrin 72a; Rashi at Exodus 22:1 and at BT Sanhedrin 72a, s.v., mai tama d'machteret; MT G'neivah 9.7] albeit in a bigger home.

For the latter, see Broyde, Just Wars, supra note 30, at 9, especially leading up to note 30. See discussion in Crane, supra note 22, about the problems of extending rodef legislation, pertaining as it does to personal intervention to save an intended victim, to governmental agencies (e.g., militaries, interrogators).

42. Broyde, Only the Good, supra note 28, at 3; Broyde, Jewish Law & Torture, supra note 28.

43. Bleich, supra note 4, at 89. See similar sentiment id. at 96.

44. Id. at 111. He claims that “the same line of reasoning yields an identical result even in cases in which the terrorist was not at all complicit in constructing or arming the bomb but merely possesses detailed knowledge of the actions of others.” Id. at 107. Earlier he says that torture is a permitted, if not required, tactic. Id. at 105, 106, 107.

45. Id. at 94. He offers two variants of this scenario at page 96. The first “classic example is that of a fanatic who has set a hidden nuclear device to explode in the heart of a major metropolis and only he knows where the bomb has been secreted. The device has been timed to explode imminently with the result that there is no time to evacuate the innocent populace.” Id. at 96. The second “involves a scenario in which a bomb has been placed in one of several hundred school buildings. It is impossible to evacuate all of the schools but only the terrorist knows which school has been targeted.” Id. He assumes that the solution to both scenarios is the same: “In each of these examples torture is the only available means to elicit the information necessary to save innocent lives.” Id. at 97. See also the variant of someone who knows about the bomb but did not plant it. Id. at 97 & n. 37.

46. For critiques of these biased hypotheticals, see Matthews, supra note 29; Rejali, supra note 3; Luban, supra note 15, at 225; The Use of Torture or Lesser Forms of Coercion to Obtain Information from Prisoners, Resolution of the Central Conference of American Rabbis, 116th Annual Convention. Houston, TX (Mar. 2005), available at http://data.ccarnet.org/cgi-bin/resodisp.pl?file=torture&year=2005 (last visited Jan 25, 2011).

47. Bleich, supra note 4, at 105.

48. See supra note 45.

49. “A jury may do so simply because its members have come to believe that in the case before them the interests of justice are better served by withholding penal sanctions.” Bleich, supra note 4, at 95.

50. Id. at 96. Such an approach was considered yet ultimately rejected by the Israeli Supreme Court when it ruled on torture in 1999.

51. Id. at 95.

52. Id.

53. He could have referenced the halakhic jurisprudential principles of lehatchilah lo (ab initio) and b 'dyavad (post facto). See discussion at BT Berachot 15b.

54. BT Sanhedrin 37a. Cited in Bleich, supra note 4, at 96.

55. Bleich, supra note 4, at 97, 99.

56. Id. at 101.

57. Mat 105.

58. On this problematic extension of personal laws to the collective, see Crane, supra note 25.

59. Bleich, supra note 4, at 106, reaches this position by reading BT Ketubot 33b (a discussion about which is worse: limited or limitless lashes) and stating,

it is thus clear that the consensus [!] of halakhic opinion is that, when martyrdom is required, acceptance of torture is [required] as well. Since there is no provision in Jewish law mandating acceptance of any sanction more severe than death, it follows that Jewish law does not regard torture as more onerous than death. By the same token, it follows that when preventative measures, including mayhem and death, may be imposed in order to restrain a pursuer, torture may be employed as well.

Torture, though, is not meant to restrain someone on the loose; torture is applied to someone already captured, unarmed and controlled. There may be situations where egregious force is used to prevent a rodef from fulfilling his or her lethal intent, but this is not the same as torture per se. And contrary to Bleich's insistence otherwise, the Talmud (BT Ketubot 33b) expresses no consensus on this issue; it concludes, “the difficulty remains.”

60. BT Baba Kamma 28a; Netivot ha-Mishpat 3:1, Minchat Chinukh 8. Bleich, supra note 4, at 106-07, and see discussion in id. at 120 & n. 26.

61. Bleich, supra note 4, at 108.

62. He cites Mishneh Torah, Gerushin 2.20 at Bleich, supra note 4, at 108. Maimonides rules here that a Jewish court anywhere and at any time may hit the husband until he says “I want” to divorce his wife (mekin oto 'ad sh 'yomar rotzeh ani). Such a get would be kosher; that is, ritually acceptable. This law is examined in greater detail below.

63. Bleich, supra note 4, at 109.

64. Bleich, supra note 4, at 110 n 31 (citing Babad, Joseph, Minhat Hinukh 296Google Scholar (19th-century Galicia) and Zevin, R. Shlomoh, Le-Or Ha-Halakhah, 2d ed., p 17Google Scholar (20th-century Israel)).

65. Id. at 110.

66. Id. at 111.

67. Id. (citing Torah, Mishneh, Melachim 9:14Google Scholar).

68. Id. at 112.

69. Id. at 113-14. He bases this line of reasoning on R. Abraham Isaac Kook's reading of Esther's adulterous relations with King Ahasuerus (see BT Sanhedrin 74b), proposed in Mishpat Kohen 143 & 144, § 6–8Google Scholar. Broyde, Only the Good, supra note 28, at 4 also entertains the notion of hora 'at sha 'ah. For Broyde this notion refers to “general reality, which is that wartime allows for the suspension of many provisions of Jewish law.” See below for further examination of this principle allowing exceptions to normal procedures.

70. Bleich, supra note 4, at 113. Bleich apparently subsumes torture under bloodshed or killing. He also supports Alan Dershowitz's call for “torture warrants.” [Dershowitz, Alan K., The Case for Torture Warrants 2002, http://www.alandershowitz.com/publications/docs/torturewarrants.html (last visited Dec. 26, 2010)Google Scholar]. It should be noted that Dershowitz's argument does not rely explicitly or even implicitly on Judaic sources, despite Bleich's claim that there is Judaic precedent for such warrants.

71. Recent U.S. history demonstrates that a leader may decipher data incorrectly or be given inaccurate data and nevertheless declare a state of emergency that would permit torture. For other arguments against this line of “lesser evil” reasoning, see Matthews, supra note 29, especially ch. 4.

The Israeli Supreme Court (1999): ¶ 36, see note 21 supra, found the necessity defense to be a reactive judgment based on the peculiarities of an immediate situation. The court also found that the necessity defense cannot proactively authorize torture; more on this below. Ignatieff, Michael, The Lesser Evil: Political Ethics in an Age of Terror 136–43 (Princeton Univ. Press 2004)CrossRefGoogle Scholar also dismisses necessity defense arguments.

72. Bleich, supra note 4, at 114.

73. Broyde, Only the Good, supra note 28, at 5.

74. Id.

75. Both camps demonstrate Neitzsche's “art of reading badly” insofar as they do not read the textual tradition honestly.

76. Judg 1:6. Some rabbis connect this treatment to the ritual of consecrating and anointing Jewish priests by covering the right ear, right thumb and right toe with blood (e.g., Exod 29:20; Lev 8:23-24, 14:14, 17, 25, 28); see commentary in Metzudat Zion at Judg 1:6 (co-authored by R. David & Hillel Altschuler in the early 18th century). Cutting off the hand is found in Deuteronomy 25:12. Cutting off hands and feet was considered an appropriate method of treating criminals already executed (2 Sam 4:12), which contrasts with the earlier rule to bury corpses before nightfall (Deut 21:22-23). 1 Maccabees 7:47 and 2 Maccabees 15:30 record that Nicanor's head, hand and shoulder were severed from his dead body and displayed in the gates of Jerusalem; this is reinforced by the rabbis in BT Ta'anit 18b. Mention of a cut beard (Jer 9:25, 25:23) is more descriptive than prescriptive punishment.

77. Judg 1:7. See Rashi there. See also Pesikta Zutra (Lekach Tov), Devarim, Re'eh, 24b, which says that, “just as they ruled over each other, so shall we rule over them.” Lemos, Tracy M., Shame and Mutilation of Enemies in the Hebrew Bible, 123 J. Biblical Literature 225, 236 (2006)Google Scholar adds that Adoni-Bezek's treatment of other kings—including forcing them to crouch under tables to vie for scraps of food (Judg 1:7)—shamed and dehumanized them to be the equivalents of begging dogs at the king's knee. Lemos also notes that thumbs and toes are “the parts of the body that most clearly distinguish humans from the members of the animal kingdom.” Id. at 237.

78. Ralbagat Judg 1:6.

79. See comments by Avraham Shoshanah at Judg 1:6.

80. Nosson Scherman's anthology of rabbinic commentary augments Ralbag by asserting a historical distancing from this divinely inspired torture: “In no other case do we find Jews mutilating their opponents, as they did to Adoni-bezek. … The history of the Jews proves that they did not take this as a precedent, for they did not treat any other captives this way.” Scherman, Nosson, The Prophets: Joshua & Judges 119 (Mesorah Publications 2000)Google Scholar. Malbim, by contrast, asserts that Adoni-bezek died a natural death in Jerusalem, which Scherman interprets to mean “this shows how much Judaism values sincere confession of sin, even by its non-Jewish enemies” Id.

Richard Rogers, a Christian preacher in Wethersfield in Essex from 1575 to 1618, understands this ancient incident both demonstrates the divine imprimatur for torture and instructs its use against contemporary malefactors:

[W]hy the Israelites did not kill this tyrant Adonibezek out of hand, but reserve him to this bondage, and to die so? The answer is, God giving them commandment, not to spare the Canaanites, and he having been more cruel than some other; God (to be sure) inclined their hearts to do so, both that he might have the measure that he had offered other, and also that it might be known, that he died not in war, which had been some glory to him; it being unmeet, that so cruel a person should have so honest a death.… [From this] we may learn that it is meet that monstrous doing and villainies, with the persons who wrought them, should be made odious according to the desert of them. As murderers of Princes, the Lords anointed, to be put to the extremest torments before their fearful death. As we have been certified of the exquisite tortures that were lately executed in France upon a popish and base fellow, which imbrued his hands in the blood of his Sovereign, so willful and common murderers to be hanged up in chains to the view of all, for the unnatural killings of their neighbor or companion. And so it is meet, that other malefactors should be dealt with all according to their wicked ways, and according to the commandment of God, that evil may be taken away from the land, as it was said of Joab (I Kings 2:31). Our laws have well provided for many such: and if it pleased our Governors to think well of it, that Atheists, Blasphemers and Adulterers might have their share among the rest according to their deserts, the case would be much better with us by many degrees at this day.

Richard Rogers, A Commentary Upon the Whole Book of Judges Third Sermon: 26-27 (Felix Kyngston 1615).

81. Judg 16.

82. Judg 16:16.

83. See comments by Radak and Metzudat David here.

84. Judg 16:19-20.

85. Judg 16:21. Early and later Talmudic sages opine that this blinding punishment was justified because Samson was visually attracted to Philistine women. BT Sotah 9b.

86. Judg 16:23ff.

87. Judg 16:30. Samson's prayer to die parallels such prayers by Elijah (1 Kings 19:4) and Jonah (Jonah 4:8).

88. See Matthews, supra note 29, about the innate sexual dimension of torture. See also Weintraub, supra note 15.

89. Jer 52:1-11; 2 Kings 25:1-7.

90. See BT Sotah 10a.

91. Sifrei Bamidbar, 91, s.v., lo ochel.

92. See Rav Huna's position at BT Sanhedrin 58b. Rashi insists that this is fitting punishment for a recalcitrant aggressor. See Rashi, BT Sanhedrin 58b, s.v., ketz yada. Elsewhere, other rabbis approve of hand removal for those men who engage in autoarousal. See BT Niddah 13b.

93. Tosafot, BT Sanhedrin 58b, s.v., ketz yada. Yom Tov ben Avraham Ashvili (16th-century Spain) also champions this interpretation: hand cutting means fine. See Chidushei HaRitba, Niddah 13b, s.v., iba'ei laho. Joseph Karo (16th-century Israel) disagrees. He would rather the punishment fit the crime up to the level permitted by Toraitic law. If the need of the hour demanded such a severe punishment, Karo would permit this penalty. He cites the case of R. Eleazar, son of R. Simeon, who was pressed to be an informant for the state (at BT Baba Metzia 83b) to illustrate that sometimes the state demands injustice. Though Karo permits doing the dreaded deed in that hour of need, the people's intentions should always be inclined toward heaven. See Beit Yosef, Choshen Mishpat, 2, s.v., af 'al. Karo abandons this ruling altogether in his more authoritative Shulchan Aruch.

94. This gustatory punishment is first mentioned in M Sanhedrin 9.5. The “bread of adversity and water of affliction” hearkens to Isaiah 30:20. The captive here is someone liable for repeatedly transgressing a prohibition (or several prohibitions) whose punishment is excision, but is to be fed barley instead. See discussion in the Gemara at BT Sanhedrin 81b, as well as at MT Sanhedrin 18.4. This punishment is also meted out to a murderer whose actions were observed by only one witness or by disjoined witnesses. See discussion on the next mishnah at BT Sanhedrin 81b.

95. See opinion of R. Yaakov at BT Sanhedrin 81b.

96. Torah, Misheh, Rotzeach U'Shmirat Nefesh 4.5Google Scholar. See discussion in Rosenberg & Rosenberg, supra note 26, at 1026-27.

97. 1 Sam 31:3-5. Other instances of Biblically-recorded (calls for) suicide or assisted-suicide include Abimelech (Judg 9:54); Samson (Judg 16:30); Ahitophel (2 Sam 17:23); Zimri (1 Kings 16:18).

98. When Judah HaNasi was suffering from something that caused him to go to the privy frequently, his handmaiden interrupted prayers that supposedly kept him alive so that he could die. BT Ketubot 104a. Honi the Circle Maker could not conceive of living without companionship and thus prayed for his own death and died. BT Ta 'anit 23a. Such stories, obviously, do not refer to torture per se but to physical and emotional suffering. And yet if these stressors were too difficult to bear, it stands to reason that physical and emotional pain impressed upon a captive during torture would also be (if not more so) unbearable.

It would be curious how Emmanuel Levinas would respond to these texts, especially in light of his brief essay, “Useless Suffering.” Levinas, Emmanuel, Useless Suffering, in The Problem of Evil: A Reader 370 (Larrimore, Mark ed., Wiley-Blackwell 2000)Google Scholar. There he asserts that the suffering of the other is meaningless for it is, essentially, useless; it has no purpose per se. The “suffering in the other” is unpardonable to me and solicits my intervention. My suffering, by contrast, may be congenitally useless but can take on meaning if and only if it becomes “a suffering for the suffering—be it inexorable—of someone else.” Id. at 374. Though perhaps Levinas would say that viewing a torture victim would spark “the just suffering in me for the unjustifiable suffering of the Other,” what might he say about viewing my own suffering as unjustifiable and not worth enduring? Id. Suicide, he says elsewhere, presupposes a being “already capable of sacrifice”—that is, of living—for the Other. Levinas, Emmanuel, Totality and Infinity: An Essay on Exteriority 149 (Lingis, Alphonso trans., Duquesne Univ. Press 1961)Google Scholar.

99. BT Ketubot 33b. It should be noted that this is a counterfactual hypothetical about Hananyah, Mishael and Azaryah being threatened with lashes instead of (what they were indeed threatened with) death (by Nebuchadnezzer). These three characters are identified with Shadrach, Meshach and Abednego, mentioned in Daniel 3:12-23. About being killed instead of engaging in idolatry, see BT Sanhedrin 72-75.

100. BT Ketubot 33b. In his translation of the Talmud, Steinzaltz interprets this to mean that beatings without end constitute torture.

101. Deut 25:3. Irrespective of the crime committed, the punished captive ever remains “your brother.” This reinforces the innate critique of torture expressed in the case of Adoni-Bezek mentioned, supra text accompanying notes 76-80, namely that torture in and of itself degrades.

102. Reines, R. Isaac Jacob, Sefer Haarakhim 49–51 (1926)Google Scholar. Emphasis added. The intervening section includes this statement:

For punishment is meted out for an improper deed, and when someone is punished, the punishment attests to him [i.e., his character] and his wicked deed, and this is itself a sort of humiliation. Now, if the punishment itself involves suffering of the body, for it is the body that feels the pain of the flogging and so forth, then the humiliation [that accompanies the punishment] involves emotional suffering, for one's feelings of dignity suffers the punishment that publicly attests to one's having turned aside from the straight path.

Id.

103. Améry, supra note 1, at 34.

104. On nausea, see Levinas, Emmanuel, On Escape (Bergo, Bettina trans., Stanford Univ. Press 2003) (1935)Google Scholar. On rabbinic notions of shame, see Crane, supra note 14 (forthcoming 2011).

105. BT Baba Metzia 24a.

106. BT Niddah 25b.

107. M Arakhin 5.6. The phrase in question (kofin oto 'ad sh'amar rotzeh ani) invariably refers to dissolving a marriage—either through gittin (divorce documents) or halitzah (the refusal of a woman to wed her dead husband's brother).

108. BT Baba Batra 167a.

109. Torah, Misheh, Gerushin 2:20Google Scholar.

110. Torah, Misheh, Malveh U'Loveh 27:12Google Scholar.

111. Fourteenth-century Spain. Chidushei HaRitba, BT Baba Batra 167a, s.v., kafteha v'ovdei.

112. Aruch, Shulchan, Choshen Mishpat, 42.3Google Scholar. The phrase in question (v'im tzarich l'kof b'al hashtar v'l'hakoto k'dei shyivadah, ye'aseh, k'dei sh'yotzi hadin l'amito) translates as “if it is necessary to bind the master of the [altered] document, and to hit him so that he admits it [that he changed it after it was signed by witnesses], do so, so that true justice prevails.” Ritba would rather a bet din avoid employing such methods. See Chidushei HaRtiba, BT Baba Batra 167a, s.v., kafteha v'ovdei. Stephen Passamaneck remarks that the Judaic textual tradition “recognizes, without any particular negative comment, the practice of confinement and some sort of physical pressure, though not severe torture, to extract confession in some pecuniary matters.” Passamaneck, Stephen M., Police Ethics and the Jewish Tradition 155 (Charles C. Thomas Publisher 2003)Google Scholar. See also Kirschenbaum, supra note 3.

113. We should keep in mind that there is a difference between a textual tradition and actual history. Though it is unclear whether such methods were actually deployed by rabbinic courts, it is probably accurate to say that in some jurisdictions and at some points in history these tools were utilized; it would be inaccurate to claim that all Jewish courts in every age used these methods.

114. See, e.g., BT Sanhedrin 40b.

115. Multiple legal systems have an early provenance: the Torah commands the establishment of a royal government (Deut 17:14-15) to function concurrently with judges (Deut 16:18). On deference to other legal systems, see BT Avodah Zarah 8b; Torah, Mishneh, Melachim U'Milchamoteichem 3.10Google Scholar. See discussion in Gershuni, Yehuda, Extradition, in Jewish L. & Current Legal Problems 127, 129 (Rakover, Nahum ed., Libr. Jewish L. 1984)Google Scholar.

116. BT Gittin 88b. A similar sentiment is found at BT Baba Metzia 83b and Midrash Tanhuma, Mishpatim 3.

117. Torah, Mishneh, Sanhedrin 26.7Google Scholar.

118. Aruch, Shulchan, Choshen Mishpat, 26.1Google Scholar.

119. Aruch, Shulchan, Choshen Mishpat, 388.9Google Scholar.

120. Yosef, Beit, Choshen Mishpat 388.9Google Scholar. He cites a responsum of the Rashba to reinforce his opinion. See discussion in Yisraeli, Shaul, Extradition, Jewish L.: Examining Halacha, Jewish Issues & Secular L. (1990), http://www.jlaw.corn/Articles/extradition.html (last visited Dec. 29, 2010)Google Scholar. Gershuni, supra note 115, at 136, disagrees with Karo: “Extradition is only conceivable when there is complete congruence between the other state's law and Torah law regarding the matter at hand.”

121. Torah, MishnehYesodei Hatorah 5.5Google Scholar; Sirkes, R. Joel (16th-century Poland), Bach, Responsa 43Google Scholar. See YT Terumot 8.4/46b for the origin of this ruling concerning Sheva ben Bichri.

122. One might argue that torturous punishment to prevent crimes can also find a prooftext in the laws pertaining to the ben sorer u'moreh, the rebellious child (Deut 21:18-21). Typically, flogging with whips or scorpions was used to discipline such wayward and defiant sons (1 Kings 12:11). In the rabbinic mindset, to become such a child would require copious amounts of alcohol, eating raw meat, and engaging in sexual deviance—among other bad habits. And the rabbis thought it implausible that such a child ever existed or ever would exist. See BT Sanhedrin 71a. The Biblical verses pertaining to the rebellious child are merely hypothetical, the rabbis say, and their sole purpose is to be intellectually interrogated, not physically enacted. See discussion in 1 Elon, Menachem, Jewish Law: History, Sources, Principles 365–66 (Auerbach, Bernard & Sykes, M.J. trans., Jewish Publication Soc'y Am. 1994)Google Scholar.

123. To claim that halakhah is not beholden to or influenced by time, or that it is timeless or ahistorical, excises halakhah from reality. Law, almost by definition, presupposes time: it seeks to shape behavior in this moment as well as the next. Just as the future looms large for law, so too does the past. Halakhic literature overflows with claims to precedents.

124. I return to this silence infra.

125. Some additional questions the protorture camp could do well to meditate on include: What advantages does promoting torture grant to either the United States or to Judaism—especially when the prospective torturees and their ilk will ever remain aloof and most likely never completely acquiesce? Could Bleich and Broyde reach their same conclusions if they took the textual tradition more seriously and without exaggeration; that is, if they took the claims put forward by the antitorture camp as well as the growing antipathy toward physical duress readily apparent in the historical trends of the textual tradition?

126. BT Sanhedrin 9b. See Lamm, Norman, Faith and Doubt: Studies in Traditional Jewish Thought (Ktav Publ'g House, Inc. 2007)Google Scholar; Halberstam, Malvina, The Rationale for Excluding Incriminating Statements: U.S. Law Compared to Ancient Jewish Law, in Jewish L. & Current Legal Problems 177 (Rakover, Nahum ed., Libr. Jewish L. 1984)Google Scholar; Braz, supra note 23; Weintraub, Melissa, Ain Adam Mesim Atsmo Rasha: The Bar Against Self-incrimination as a Protection Against Torture in Jewish and American Law, Rabbis for Human Rights—North America (11 24, 2007, 4:12 PM), http://www.rhr-na.org/resource/bar-against-self-incrimination-a-protection-against-torture-jewish-and-american-law (last visited Jan. 25, 2011)Google Scholar.

127. Torah, Mishneh, Sanhedrin 18:6Google Scholar.

128. Deut 19:15; Num 35:30; Deut 17:6; BT Sanhedrin 27b; Torah, Mishneh, Edut 5:1Google Scholar; Torah, Mishneh, Rotzeach U'Shmirat Nefesh 4.5Google Scholar.

129. BT Sanhedrin 9b. See Rashi there. See also BT Yevamot 25a-b; BT Sanhedrin 25a. This principle does not apply to crimes involving money or property. See BT Sanhedrin 10a. Rashi disagrees: these confessions are also inadmissible. BT Yevamot 25b. See also Responsa Rosh 11:5.

130. The final phrase is gezerat melech hi—refers not to an earthly king but to the divine sovereign. Torah, Mishneh, Sanhedrin 18:6Google Scholar. Linking this nonrational reason to the procedural one, Radbaz asserts that since one is not the owner of one's own life but God is (cf, Ezek 18:4), one cannot confess about oneself, especially regarding a capital offense. See Radbaz commentary on Torah, Mishneh, Sanhedrin 18:6Google Scholar. Halberstam, supra note 126, at 178, discusses this reasoning.

131. Tortured individuals invariably divulge data that is not militarily actionable, a claim demonstrated through historical and empirical studies. See discussion of these studies in Matthews, supra note 29; Rejali, supra note 3. Ignatieff, supra note 71, similarly argues that torture produces nothing of value for militaristic or legal purposes.

132. Whether confessions were barred because they would lead to torture; or because they were unreliable; or because sick minds might falsely accuse themselves; or because their prohibition served as a mechanism for assuring preservation of all the other procedural safeguards or as a guarantee of equal treatment for all persons accused of crime; or because the use of confessions would lead to laxness in fact-finding; or because man's life and body were not his to forfeit; or because of the uniqueness and dignity of man; or because of a recognition that in dealing with the state there could be no real free choice; or because it was deemed morally reprehensible to allow a person to convict himself; or because the privilege reflected a divine and ineffable understanding of mankind— whatever the rationale, acceptance of the absolute prohibition was a remarkable societal accomplishment.

Rosenberg & Rosenberg, supra note 26, at 1041.

133. Bleich, however, might respond to these questions as he did about the use of data procured by Nazis. In his view, the data derived from initially immoral procedures constitutes a forbidden benefit but any subsequent use of that data is not ipso facto prohibited. See Bleich, David J., Utilization of Scientific Data Obtained Through Immoral Experimentation, 26 Tradition 65 (1991)Google ScholarPubMed.

134. Enker, Arnold, Self-incrimination, in Jewish L. & Current Legal Problems 169 (Rakover, Nahum ed., Libr. Jewish L. 1984)Google Scholar; Kirschenbaum, supra note 3.

135. Torah, Mishneh, Rotzeach U'Shmirat Nefesh 2.4, 4.5Google Scholar.

136. Id. Levin, Stanley, Due Process in Rabbinical and Israeli Law: Abuse and Subversion, in Jewish L. & Current Legal Problems 191–94 (Rakover, Nahum ed., Libr. Jewish L. 1984)Google Scholar, argues that such exceptionalism has Biblical roots. Rosenberg & Rosenberg, supra note 26, challenge these claims.

137. See Levin, supra note 136; Enker, supra note 134.

138. For the rationale about the world being destroyed, see Aderet, R. Solomon ben (Rashba) Responsa III:393Google Scholar, cited in Karo's, Bet Yosef Choshen Mishpat 388Google Scholar. See Kirschenbaum, supra note 3, at 6-7. For the emergency situation argument, see R. Isaac ben Sheshet Perfet (Rivash). Cited in Levin, supra note 136, at 192.

139. Enker, supra note 134.

140. See Kirschenbaum, supra note 3, at 12.

141. Franz Rosenzweig, in his Star of Redemption, meditates on the temporal stitching that the law provides, binding the future to the past in the present. Put differently, the law is meant to guide behavior, not excuse it retroactively. See discussion in Kreminitzer, Mordechai, The Landau Commission Report—Was the Security Service Subordinated to the Law, or the Law to the ‘Needs’ of the Security Service?, 23 Israel L. Rev. 216, 237 (1989)Google Scholar.

142. We should note that Maimonides (Torah, Mishneh, Mamrim 2.4Google Scholar, see supra; Torah, Mishneh, Sanhedrin 24.4Google Scholar) stresses this point: exceptions to normal court and governmental procedures must be just that—exceptions. Anything otherwise would subvert the already established laws regulating their exercise of authority. For more on the discretion hora 'at sha 'ah afforded courts and royal governments, see Rosenberg & Rosenberg, supra note 26, at 1019ff, and regarding the notion that exceptional moments were necessarily temporary interruptions of normal procedures, see id. at 1021.

Might a completely different, yet related, principle help the protorture camp somehow justify their position? The principle, chaferu toratecha mishum 'et la'asot l'adonai—it is a time to act for God because they have violated your Torah (BT Berachot 54a and 63a; based on Psalm 119:126)—justified Elijah's transgressive behavior when he combated the prophets of Ba'al. Protorturists might have used this principle to argue that war constitutes a moment ('et) violating normal Toraitic laws and procedures, which then gives tacit permission to employ whatever means necessary to reclaim normalcy. Yet this argument would fail because it ignores the fact that the moment is for acting for God (la'asot l'adonai) and not for the state. Elijah, too, acted extra-Toraitically, or extra-judiciously so to speak, solely to promote God and God's instructions (the Torah itself). It is difficult to understand how permitting state torture would promote either God or God's instructions, unless one lives in a theocracy, a kind of state none of the authors here explicit seek.

143. Hoda'at ba'al din kemayah edim dami—the admission of a litigant is worth a hundred witnesses; BT Gittin 40b. See discussion in Halberstam, supra note 126, at 178.

144. Broyde, supra note 30, at 31.

145. Passamaneck, supra note 112; Crane, supra note 25.

146. Indeed, Broyde and Bleich would have to disprove governmental empirical studies and admittance that torture fails to produce actionable data. And they would have to demonstrate the justifiability of expending vast amounts of personnel and financial resources to examine the misinformation tortured captives do provide—not to mention the social and political capital expenses involved. See Miles, Steven H., Torture: The Bioethics Perspective, in From Birth to Death and Bench to Clinic: The Hastings Center Bioethics Briefing Book for Journalists, Policymakers, and Campaigns 169 (Crowley, Mary ed., The Hastings Center 2008), available at http://www.thehastmgscenter.org/Publications/BriefingBook/Detail.aspx?id=2208 (last visited Jan. 25, 2011)Google Scholar.

147. He would also have to overturn antitorture rulings passed down by the U.S. Supreme Court, especially those that find torture inherently untrustworthy. E.g., Brown v. Miss., 297 U.S. 278 (1936); Ashcraft v. Term., 322 U.S. 143, 160 (1944) (Jackson, J., dissenting). See Halberstam, supra note 126.

148. The Israeli Supreme Court (1999) ¶ 21, supra note 20, probes a similar question. It ultimately rules that it is illegal to preemptively grant authority to torture, even under extreme circumstances, for an otherwise illegal activity.

149. See, e.g., God's promise not to destroy the world again just because God finds human behavior reprehensible. Gen 8:21, 9:11-16. Abraham, too, insists that God must exercise consistent, or at least intelligible, justice when judging the world. Gen 18:25. And further in the Torah, Moses too argues with God to exercise non-arbitrary power lest God's reputation be harmed. Exod 32. (See also Num 14:13; Deut 9:28). Although his rebellion failed, Korach's challenge to Moses articulates a concern about the apparently arbitrary exercise of power by a human (Num 16). By the time of Joshua, God's reputation may be at stake but God does not seek to act arbitrarily. See Joshua 7.

150. See, e.g., Nathan's rebuke of King David at 2 Sam 12. Samuel, too, warned the Israelites about the proclivity of royal governments to abuse their powers. 1 Sam 8.

151. See rules protecting society from rebellious elders (zaken mamre)—or in today's parlance, activist judges—at M Sanhedrin 11.1, 2, 4; BT Sanhedrin 14b, 16a, 87a-ff; Torah, Mishneh, Mamrim 3.4Google Scholar; Torah, Mishneh, Sanhedrin 5.1, 14.11Google Scholar; Guide of the Perplexed III:41Google Scholar; see Crane, Jonathan K., Defining the Unspeakable: Incitement in Halakhah and Anglo-American Jurisprudence, 25 J.L. & Religion 329 (2010)CrossRefGoogle Scholar. On the role of shame in rabbinic academies, see Rubenstein, supra note 16; Crane, supra note 14.

152. See Crane, Jonathan K., Because…: Justifying Law/Rationalizing Ethics, 55 J. Soc'y Christian Ethics 55 (2005)Google Scholar.