Topics in this digest: Bo 5765
by Rabbi Dr. Barry Leff
Exodus 12:49. One law shall be for him who is native
born, and for the
stranger who sojourns among you.
Leviticus 24:22. 22. You shall have one kind of law, as well for the
stranger, as for one of your own country; for I am the Lord your God.
I was just following orders.
This is the heart of the defense that Specialist Charles Graner, Jr., is
mounting against charges of conspiracy, assault, and committing indecent
acts relating to the prisoner abuse scandal at Abu Ghraib prison in
Baghdad.
According to the Associated Press, Graner is charged with offenses
including conspiracy, assault and committing indecent acts and could get
17 1/2 years in a military prison.
Among other things, Graner is accused of stacking naked detainees in a
human pyramid and later ordering them to masturbate while other soldiers
took photographs. He also allegedly punched one man in the head hard
enough to knock him out, and struck an injured prisoner with a collapsible
metal stick.
A Syrian insurgent held at Abu Ghraib prison testified by video that
Graner merrily whistled, sang and laughed while brutalizing him and forced
him to eat pork and drink alcohol in violation of his Muslim faith.
I don’t want to get caught up in the details of this particular case this
morning. What I want to do is explore what the law says, and what the
Torah says about two questions: is non-lethal torture wrong? And is “I
was just following orders” an excuse if it is wrong?
To the first question, regarding non-lethal torture, we have strong
evidence that it happened at both Abu Ghraib and at the US detention
facility in Guantanamo Bay, Cuba, where many combatants from Afghanistan
are still being held. We have pictures of the sexual humiliation of
prisoners at Abu Ghraib.
As for Guantanamo, a report written by Major General Antonio Taguba says
that Major General Geoffrey Miller, commander of the detention facility at
Guantanamo, authorized the use of sleep deprivation, exposure to extremes
of cold and heat, and placing prisoners in “stress positions” for
agonizing lengths of time.
We often think of torture as beatings and other forms of physical abuse.
Are the things that happened at Guantanamo and Abu Ghraib torture?
In his opening argument Graner's lawyer Guy Womack argued that his client
was only following orders and often earning praise from his superiors for
his actions. He also said activities such as making human pyramids with
naked hooded prisoners were acceptable. "Don't cheerleaders all over
America form pyramids six to eight times a year. Is that torture?" he
said.
When the pictures of a grinning female soldier standing over a pile of
naked Iraqis first came out, notorious Conservative radio talk show host
Rush Limbaugh said “You know, these people are being fired at every day.
I’m talking about people having a good time, these people. You ever heard
of emotional release?”
Emotional release? By sexually humiliating prisoners? I’ve had some hard
days at the office. I had some hard days at work when I served in the US
military. But somehow I never felt like tormenting other people as a way
to release my tensions.
I served in the US Army for three years. In basic training all Army
recruits are given training on the Code of Conduct and the Geneva
Conventions. I was curious as to whether the Army has changed this aspect
of the training program in the thirty years that have intervened since I
served in the military. So I did some research.
I found a website with resources for US Army Non-Commissioned Officers who
are studying for promotion. There I found a power point presentation from
the 309th Military Intelligence Battalion at Ft. Huachuca, Arizona on
“Humane Treatment of Prisoners.” It is safe to assume that this
presentation is pretty typical of what the Army tells its people.
What I found is that things have NOT changed in 30 years. In that
presentation it states that everyone is entitled to humane treatment.
There is to be no degrading or humiliating treatment, prisoners are to be
protected from violence and intimidation and shielded from insults and
public curiosity.
The presentation goes on to describe the difference between physical
torture, mental torture, and coercion. The definition of physical and
mental torture includes some of the things we heard about from Abu Ghraib
and Guantanamo: physical torture includes pain through bondage and being
forced to stand, sit, or kneel in abnormal positions for prolonged periods
of time. Mental torture includes mock executions, sleep deprivation, and
chemically induced psychosis.
According to the Army’s “normal” rules and guidelines, “insurgents” are to
be afforded these same protections. The presentation says that unlawful
combatants in the hands of an occupying power, or persons who do NOT
qualify for POW status who have engaged in hostile or belligerent conduct
are to be treated as “Protected Persons” who are entitled to humane and
equal treatment, including protection from physical abuse. The main
difference between a POW and a protected person is that a POW cannot be
charged with a crime for being a soldier and doing his job attacking the
enemy; a protected person can be criminally charged for such attacks.
Clearly, according to the US Army’s own definitions, what happened at Abu
Ghraib is torture. I would certainly consider it torture to be tied up
naked in a cell, or chained to the bars, or forced to simulate sex with
another man. There are pictures of a man with wires on him, standing on a
small stool, who was reportedly told if he falls off, and disconnects a
wire he would be electrocuted. If that’s not psychological torture, what
is?
As to the legality of such treatment, clearly the Geneva Convention, and
US military policy says it is illegal. What does the Torah say?
The people who argue in favor of such harsh treatment of prisoners argue
that it could save lives. If one of these detainees breaks, he could
reveal information that can prevent a major attack and loss of life.
Saving lives is a very important principle in Judaism. It’s called
pikuach nefesh. According to the doctrine of pikuach nefesh, saving lives
is the highest Torah value of all. We are commanded to violate any
commandment—except three—to save a life. The three that we do not violate
are murder, violating a sexual law like adultery or incest, and public idol
worship. One might try to argue that if torturing prisoners can save
lives, it would be sanctioned by halacha, by Jewish law.
There are a few principles that put limits on the pikuach nefesh argument.
In the first place, we are all created b’tzelem Elokim, in the image of
God. Even enemy combatants are created in the Divine image, and we are
not allowed to forget that. For example, if someone was executed for
committing a capital crime, we still had to bury the body promptly.
The rabbis in the Talmud equate embarrassing someone with killing them,
because both cause the face to go white from loss of blood. Humiliating
someone is treated as a very serious issue in halacha. The halacha does
not record that it is OK to humiliate some people and not OK to humiliate
others. In this week’s Torah portion we learn (Exodus 12:49): One law
shall be for him who is native born, and for the stranger who sojourns
among you. People are to be treated equally under the law.
Most significantly, the pikuach nefesh argument that trumps the normal
rules of behavior only applies in cases where a specific act will save a
specific person. For example, in general, autopsy is forbidden under
Jewish law. The body is supposed to be buried whole. However, organ
donation is permitted—because the organ being removed will save the life
of a specific person we can identify. An autopsy for research purposes—or
donating one’s body to science—is forbidden halachically because while the
information might be useful, we do not know for sure that it will be. We
do not know that any one particular person will be saved by the
information. The connection to saving a life is tenuous, not direct, and
a tenuous connection is not enough to overrule the normal rules of the
Torah.
From this we see that according to Torah law, there are instances where
you could justify torture. If you have a terrorist that you know is a
ringleader and you know he was planning an attack, it very well might
count as pikuach nefesh to apply unconventional interrogation techniques.
But to apply the same techniques to a random population of “cabdrivers and
brothers-in-law,” which is what reliable sources state is the population
at Abu Ghraib, trolling for possible information, would be a tenuous
connection to pikuach nefesh, and hence forbidden under Jewish law.
Even if it could be justified, is this kind of treatment a good idea?
What effect does it have not only on the people subject to the torture,
but on the people doing the torturing? According to halacha it is
forbidden to steal your own stuff back from a thief, because it gives you
a taste of being a thief. I am haunted by the image of the woman soldier
grinning. I can’t believe she was brought up to think this is the right
way to treat another human being.
So my answer to the first question, is non-lethal torture of insurgents
wrong, is clearly yes. It is wrong according to international law, it is
wrong according to the law the way it is usually taught to American
military personnel, and it is, under the vast majority of cases, wrong
under Torah law.
Given that treating other people this way is wrong, is “I was just
following orders” a viable excuse?
The presentation on humane treatment charges soldiers with being on the
lookout for war crimes. War crimes can be grave breaches or simple
breaches. Grave breaches include torture or willfully depriving a person
of a trial.
The presentation says that a soldier must NOT obey an
unlawful order.
According to the 309th MI Battalions presentation, torturing anyone—a
prisoner of war, or a “protected person”—would be an unlawful order. The
soldier is NOT to obey an unlawful order. The soldier is to report the
unlawful order, and if he believes his superiors up the chain of command
are implicated in war crimes, he is instructed to report them to the Judge
Advocate General, the Inspector General, a Chaplain, or Provost Marshal.
But what if the responsibility for the unlawful order goes all the way to
the top?
According to a recent Knight-Ridders newspapers article, Attorney General
nominee, former White House Chief Counsel Alberto Gonzales, advised the
President in January 2002, that the demands of a "new kind of war" on
terror and the need to get information quickly from suspected terrorists
"rendered obsolete Geneva's strict limitations on questioning prisoners."
The article continues and states “Over the strenuous objections of
Secretary of State Colin Powell (a retired four star general), Bush agreed
with Gonzales that prisoners captured in the war in Afghanistan and other
"enemy combatants" did not have Geneva Convention protections. Gonzales
also requested a memo from the Justice Department in August 2002 that
asserted a president's power to set aside laws and treaties and to allow
torture. I am appalled that someone who has such an attitude toward
torture and international law is likely to be our next attorney
general…but that’s a sermon for another time.
So if the order goes all the way to top, if it has been approved by the
Commander-in-Chief, the President of the United States, does that make it
a “lawful” order?
The answer is clearly no. In Nazi Germany, the German government passed
laws authorizing the murder of Jews. In his book “Hitler’s Willing
Executioners,” Daniel Goldhagen maintains that the Holocaust never could
have occurred if normal people had refused to go along. After the war,
Germans who complied with these so-called laws were held responsible for
murder. Just because the government says it is OK to do something does
NOT mean it is OK.
Halacha, Jewish law, is VERY clear that “I was just following orders” is
no excuse. There is a principle called ein shaliach l’dvar aveirah, there
is no agency in a sin. In other words, a person doing something wrong
cannot claim he did it as someone else’s agent: the person physically
doing something wrong is the one who is guilty of a crime.
Ultimately, we are all answerable to God. We are all individually bound
to follow the laws of our Creator. Under Torah law, if someone hires a
hit man to kill someone, the person who is guilty, the person who is
liable for the death penalty, is the one who pulls the trigger. The
person doing the hiring has done a despicable act—but under Torah law they
would not be the one liable for the death penalty. Similarly, in this
case, it doesn’t matter who gave the instruction to commit torture—the
soldier’s commanding officer, his commanding officer, or the President of
the United States—ultimately, the person who brutalizes another human
being is the one who is guilty of torture. The people who gave the order
are guilty of other crimes—incitement, and under the Torah “putting a
stumbling block before the blind,” which is understood as anything which
will lead a person to do the wrong thing, leading them to
temptation—causing someone else to stumble. But they are not directly
liable for the torture.
Specialist Graner’s lawyer Guy Womack said “If I was prosecuting this
case, (Graner and other defendants) would be witnesses and we'd be going
after the officers and senior enlisted who gave these orders," he said.
"We have to hold the order-giver to a higher standard than the person who
was following the order."
This week’s Torah portion disagrees. This week’s Torah portion says Torah
achat yiheh l’ezrach v’lager there will be one law for the citizen and the
resident, a rule so important it is repeated in Deuteronomy. We are all
equally subject to the law: from the king (the President) to the man on
the street, we have one form of law. The person following the order is
held just as responsible as the person giving the order.
We sometimes wonder how so many Germans could have gone along with horrors
ordered by Hitler. In a famous psychological experiment conducted at Yale
University by Dr. Stanley Milgrom, we learn how Americans are not immune
to the kind of behavior the Germans displayed. Students were told they
were participating in an experiment on the effect of electric shocks on
learning. Even when the experimental subjects acted like they were in
great pain (the shocks were not real), as long as there was someone in a
lab coat with a clipboard standing by, telling them, it’s OK, it’s part of
the experiment, crank it up, the students went along continuing to increase
the level of the shocks even after the subjects were screaming in pain, or
passed out.
We often talk about the goal of a Jewish education being to foster a
stronger Jewish identity in our children. I suggest to you that an even
more important goal for a Jewish education is to make sure that none of
our children could ever be on trial for a crime like Specialist Graner’s.
That our children learn the values of Torah—so they will know in their
hearts with no doubt that abusing other people is wrong. And that they
will develop the strength and confidence in that internal moral compass,
and have sufficient faith in God, that even if the President of the United
States himself were to order them to do something wrong, they would refuse.
“I was just following orders” is never an excuse.
Shabbat Shalom
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