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July 26, 2014 | 28th Tamuz 5774

Torture

Submitted by the Union for Reform Judaism Board of Trustees to the 68th Union for Reform Judaism General Assembly

Passed – Houston, November 2005

Background

Since the tragic events of September 11, 2001, the United States has struggled with how to support civil liberties and human rights while ensuring security for its citizens. As the administration has waged its “war on terror,” some people, notably including some policymakers within the Administration, have suggested that the president may circumvent obligations outlined by the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and authorize United States forces and agents to use torture in the process of interrogating prisoners.[1]

The argument that the Geneva Convention relative to the Treatment of Prisoners of War did not apply to Al-Qaeda or Taliban detainees was made in a series of memoranda to and from former White House Counsel, now Attorney General, Alberto Gonzales. The memos argued that because Al-Qaeda and the Taliban are non-state actors, not signatories of the Geneva Conventions, and a “new threat” not present at the time of U.S. ratification, the U.S. does not have to abide by the Geneva Conventions when dealing with them.[2] These memoranda also guided the administration at one point to redefine torture, narrowing the definition to only that which results in organ failure or death.[3] This view is rejected by most international legal experts. The more normative view argues that these interpretations are in direct violation of our obligations under international law. The administration’s decision to alter the definition of what constitutes torture was not rescinded until two years after it was first issued in January of 2002.[4]

The four Geneva Conventions and their two Optional Protocols comprise what is called international humanitarian law and define the rights of civilians and combatants during wartime. The Geneva Conventions of 1949, early versions of which have existed since the 1800s, were adopted in their present form by the nations of the world very shortly after, and in response to, the atrocities that occurred during World War II. They are one of the most sacred legacies of the victims of the Nazi atrocities, bequeathed from their suffering to the whole human race. The Geneva Conventions’ Optional Protocols state explicitly that they apply during international and non-international wars and that they apply to all individuals, no matter what role those individuals play in the conflict. The U.S. Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment also all ban torture without exception.

The Supreme Court has ruled, in cases including Rasul v. Bush and Hamdi v. Rumsfeld, that detainees and "enemy combatants" held by the United States are entitled to challenge their detention in court. In addition, the U.S. Constitution’s Eighth Amendment bans “cruel and unusual punishments.” Other U.S. legal codes that ban torture include the Uniform Code of Military Justice (UMCJ, arts. 77–134), the War Crimes Act of 1996 (18 U.S.C § 2441), the Federal Anti-Torture Statute (18 U.S.C. § 2340A) and Military Extraterritorial Jurisdiction Act of 2000 (MEJA, Public Law 106–778). By sanctioning or engaging in torture, the United States breaks its commitment to international humanitarian law and international standards of human rights as well as domestic U.S. law. Additionally, condoning torture risks the safety of American soldiers and civilians who may be endangered as victims of torture in the future if the protections of the Geneva Conventions are undercut by the United States.

There is growing concern that U.S. policies on these matters have led to gratuitous abuse and egregious acts that violate our moral and ethical principles, as well as international legal standards. The growing number of reports by news agencies and responsible public officials of instances of torture carried out by U.S. forces in multiple locations increasingly evidence a systemic flaw in the treatment of detainees by the United States. These policies have had a significant effect on the chain of command and the behavior of American forces and agents in Guantanamo Bay and U.S.-run prisons in Afghanistan and Iraq, most notoriously, at Abu Ghraib. At Guantanamo Bay, the U.S. has been holding more than 500 people, some for more than three years, without charges being filed and, in most cases, without access to attorneys.[5] Often, family members are unable to confirm detention. There have been credible reports of abuses such as detainees being shackled to the floor in a fetal position for over 24 hours at a time, left without food and water and allowed to defecate on themselves.Particularly notorious are the abuses at Abu Ghraib Prison in Iraq, where detainees were subject to sexual violence, assault, threats with dogs and humiliation documented in photographs. Three hundred and seventy cases of abuse and torture are currently under investigation, most of which include more than one U.S. soldier; 108 detainees in U.S. custody in Iraq and Afghanistan have died; 137 military personnel have been punished for abuse; and as many as 100 “ghost detainees” have been kept off prison records in Iraq and hidden from the International Red Cross.[6]


According to a number of human rights organizations—and confirmed by government-sponsored reports—torture has been used in Guantanamo Bay, Afghanistan, Baghdad, Basra, Ramadi, Tikrit and probably other prisons where detainees are hidden from the Red Cross. Torture has reportedly been committed by some individual members of the Marines, the Army, military police, Navy Seals, National Guard, Special Forces, the CIA and other U.S. officials.[7] Some within these organizations have clearly opposed this behavior. To date, only individual prison guards have been prosecuted and charged. Officials within the administration or with higher rank in the military have not been held responsible for the crimes committed.

Further, the Bush administration has engaged in the practice of “extraordinary rendition,” a program designed to extradite terror suspects from one country to others that, according to State Department human rights reports, are less scrupulously observing the Geneva Conventions. As many as 100 to 150 detainees have been sent elsewhere under this program. Many critics argue that the unstated purpose often appears to be to subject detainees to methods of interrogation and prosecution, such as torture, which are illegal in the U.S.

According to Jewish law, one is permitted to defend oneself by killing an attacker if one’s life is immediately threatened. In the case of a rodef, a pursuer, Jewish law teaches: “When one pursues another with intent to kill… every Jew is commanded to save the intended victim, even at the cost of the pursuer’s life” (Mishneh Torah, Rotzeach 1:6.). Similarly, the rule of pikuach nefesh requires breaking most laws (except murder, idolatry and sexual crimes) to save a life—but only when the threat to life is imminent.

This moral logic has led some to argue that torture, under certain circumstances and when overseen by a court, may be justified to save lives. Those that support the use of torture to obtain vital information assert that torture is an effective tool for interrogation and that the value of saving many lives, particularly in a “ticking bomb” scenario, outweighs the possibility of doing harm to one individual. However, it is hard to argue that detainees who have been held for months or years pose an imminent threat. Regardless, most experts have found that information obtained under torture is not at all reliable.

The question of torture has further been considered by the Supreme Court of Israel. (Public Committee Against Torture in Israel v. the Government of Israel and the General Security Services, 5100/94.) The issue, as the Court sees it, involves a basic tension between two fundamental principles of Jewish law and ethics. On the one hand, the prisoner is a human being, created b’tzelem Elohim (in the image of God), and as such is entitled to be treated with dignity and respect. On the other hand, there may exist a clear and present danger to the lives of innocent persons, whose death and injury might be prevented by information that the suspect can provide. The Court held that even in a “ticking bomb” scenario, torture or physical coercion is banned without exception. Experience has taught that there are more effective and moral ways of extracting information from detainees that do not reach beyond the bounds of law.

Israeli Supreme Court Justice Aharon Barak stated in an article after the Court’s decision: “The war against terrorism also requires the interrogation of terrorists, which must be conducted according to the ordinary rules of interrogation. Physical force must not be used in these interrogations; specifically, the persons being interrogated must not be tortured.”

The Reform Movement’s views on torture grow out of its policies on international human rights and religious freedom, civil liberties, criminal justice and asylum. As Rabbi Eric Yoffie stated in an article published in The Jewish Journal: “The torture of prisoners, or issues of what is the appropriate conduct of soldiers, are issues that should have special resonance for Jews, given our experience in the 20th century. We have a special obligation to speak out on these issues; if we don’t, shame on us.”[8]

Therefore, the Union for Reform Judaism resolves to:

1. Urge the United States and Canadian governments to:

a. Denounce and oppose the use of torture;

b. Affirm the continued validity of the Geneva Conventions and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and adhere to the guidelines to which they have committed themselves through their ratification of these agreements;

c. Affirm the legal definitions of torture present in international law, particularly in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;

2. Demand that the United States government:

a. Enforce United States laws that make torture illegal;

b. Uphold, obey and enforce the Supreme Court rulings that it is unconstitutional to imprison those designated as "enemy combatants" without access to lawyers and the right to challenge detentions in court, acknowledging that due process will diminish the likelihood of torture occurring;

c. Reject the practice of “extraordinary rendition” by which some detainees are sent to countries that the U.S. State Department has found to practice torture during interrogation;

d. Allow every person in the custody of the U.S. military, military contractors or intelligence officials visits by the International Committee of the Red Cross, in accordance with U.S. obligations under international law;

e. Authorize a comprehensive, independent commission to investigate and report on the detention and interrogation practices of U.S. military and intelligence agencies deployed in the global “war on terror”;

f. Provide civilian, intelligence and military personnel with the necessary training and support to ensure their ability to comply with international laws and norms; and

g. Hold the culpable government, civilian and military officials at the highest levels accountable for the torture and abuse committed by their subordinates;

3. Urge individuals to engage in advocacy consistent with this policy, such as supporting the ongoing efforts of Rabbis for Human Rights, North America to oppose torture.


[1] Definition of Torture as defined by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: “Article 1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”

[2] Memorandum of January 25, 2002, from Alberto R. Gonzales, Attorney General, re Application of the Geneva Convention on prisoners of war to the conflict with Al-Qaeda and the Taliban (this memo is the conclusion of a series of exchanges on this topic). Available at http://www.msnbc.msn.com/id/4999148/site/newsweek/.

[3] Memorandum of August 1, 2002, from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, for Alberto R. Gonzales, Counsel to the President, re Standards of Conduct for Interrogation Under 18 U.S.C. § §. 2340–2340A, available at http://news.findlaw.com/nytimes/docs/doj/bybee80102mem.pdf.

[4] Memorandum of December 30, 2004, from Daniel Levin, Acting Assistant Attorney General, Office of Legal Counsel, for James B. Corney, Deputy Attorney General, reLegal Standards Applicable Under 18 U.S.C. § § 2340–2340A, available at http:/./www.justice.gov/olc/dagmemo.pdf.

[5] Dan Eggen and R. Jeffrey Smith. “FBI Agents Allege Abuse of Detainees at Guantanamo Bay.” Washington Post. Dec. 21, 2004.

[6] Human Rights First. “Quick Facts on Torture.” June 2005. http://www.humanrightsfirst.org/us_law/etn/misc/factsheet.htm.

[7] Hon. James A. Schlesinger (Chairman). “Final Report of the Independent Panel to Review DoD Detention Operations.” August 2004.

[8] Quote taken from article by James D. Besser in The Jewish Journal. “Torture, Genocide, and Jewish Silence.” February 18, 2005. http://www.jewishjournal.com/home/preview.php?id=13667.

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