Mukasey, Waterboarding, and Jewish Ethics

Michael Mukasey's nomination for Attorney General was approved last night, over objections that he had not condemned waterboarding as an interrogation technique, or labeled it "torture."

Mukasey is a modern orthodox Jew. I suppose that the likelihood is high that he will relocate to Washington, DC, and if he does, there is a very good chance that he will attend the Georgetown synagogue, which I also attend, when I am in the US. And if he does that, then there is an excellent chance that he and I will be drinking schnapps together on a weekly basis at the kiddush following the services. Already there were jokes last Shabbat about simulating drowning with single malt scotch.

So this post relates what I would say to him over schnapps, if I thought it beneficial or appropriate, which I don't.

Mike, it is a collosal mistake to justify the use of torture -- sorry, "extreme interrogation methods" -- by appealing to the so-called "fight against terrorism." The mistake is twofold; first, as former Undersecretary of Defense, Dov Zakheim, once told me, torture is useless in getting good information. But more importantly --it is morally abominable, even if the information is useful, and even if it will save lives. Because there are worth things than death, Mike, even the death of innocents. And one of them is the deprivation of human dignity, of kevod he-beriyot that results from torture.

Ah, you will say, but what of the imperative to save lives? Doesn't that override the preservation of human dignity. Or to frame that as a Jewish question -- doesn't pikuah nefesh override kevod ha-beriyot? After all, Judaism teaches us that life is sacred. Even a liberal like David Landau, the editor-in-chief of Haaretz, justified depriving the Palestinians of liberty of movement and livelihood during the Second Intifada, if the outcome was to thwart suicide bombers. What of the ticking-bomb defence? Death is irreversible, but loss of dignity is not.

To this I reply as follows: First, Judaism does not teach that life is sacred; the "sanctity of human life" is a Catholic, not a Jewish doctrine. Preserving life (especially Jewish life) is an important value, but not an overriding one. There are times when it is better to die, or to let die, than to violate human dignity.

The Talmud in Sanhedrin tells of a man who literally was dying for love of a woman. The doctors concluded that if the man did not have sexual relations with the woman, he would die. The rabbis said, "Let him die instead." Then the doctors suggested that she merely appear naked before the patient, and the rabbis still said, "Let him die instead." Finally, they suggested that she merely converse with the patient from behind a barrier. The rabbis said, "Let him die instead." The Talmud asks on this, "Why such severity?" One of the answers is, "So that the daughters of Israel should not be sexually licentious." Or as Maimonides writes, "So that the daughters of Israel should not be 'up for grabs'(hefker), and become in these matters sexually licentious."

I understand the Talmud and Maimonides to be saying that the dignity of the woman cannot be compromised for the sake of somebody else, even for the sake of saving his life. As Kant would say, you cannot use people as means to an end; each individual human being is an end unto himself. Now, admittedly, the Talmud does not talk about human dignity. But, as I have argued elsewhere, the particularistic ethical principles of the Talmud often can, and should, be extended to include all human beings.

So Mike, there are limits, and we have to beware of the self-serving moralistic arguments (e.g., the ticking-bomb argument, or the water-boarding-is-not-torture argument, or the national-security argument) that allows us to be "moral" while behaving like beasts.

The death of innocents is a horrible fate, but there are worse. Even if I bought the utilitarian argument on waterboarding -- which I don't -- I would be stopped by the Kantian argument. And, of course, by the best construal of Jewish tradition.

I am not taking a pacifist line. There will be all sorts of grey areas. But that is what the international conventions are for -- to agree upon how civilized nations behave.

Waterboarding is torture, Mike. You didn't say it, but I hope you believe it.

Shabbat Shalom

Jerry