Emor      2009

There is a controversy going on now about what to do about representatives of the United States of America who tortured prisoners. I have heard a great deal of talk on both sides of the argument, and I am sure that most of you have also. I have heard that it wasn’t torture because intense physical pain was not caused, I have heard that it was not illegal because we are in a state of war with Cuba, and I have heard that it was not illegal because it was within the rights of the president to order torture under the Patriot act.

On the other side, I have heard that this is a great opportunity to get back at the former administration that so many on the left hated.

How are we to respond to these opinions? 

Article three of the Geneva Conventions, to which the United States is a signatory, requires that any person, whether a prisoner of war, an unprivileged belligerent, a terrorist, or a non-combatant must be guaranteed freedom from cruel treatment, torture, and humiliating and degrading treatment. It certainly seems that what went on falls within those boundaries. It also seems clear that the United States government felt that it was torturing people, and that it knew that that behavior was against United States law. Steps were taken to try to circumvent the illegality of US actions, and steps were taken to try to hide US actions from the public eye. 

F.B.I. interrogators, who were part of the investigation of prisoners in Guantanamo Bay, felt that the C.I.A. interrogators with whom they were working were torturing prisoners illegally, and they asked for and received permission to end their participation in those interrogations.

How are we to respond to those who say we should seize this opportunity to attack the former administration? The president, to his credit, has said that we should not have a witch hunt, that we should not attack those who were operating out of a love for their country and a desire to protect their country. To all people on both sides we should point out there is very little discretion. If it seems a person in this country is accused of a crime, he or she must be tried for it. If a grand jury does not believe that a person has broken the law, he or she may not be tried for it. It is not the business of the president to decide, and nor is it the business of congress to decide. If anyone is convicted of illegal activities, it will be the place of the president to mitigate the punishment, if he so desires.

Parasha Emor, our Torah reading for this week, contains a powerful statement for which the Jews have been both praised and criticized.כַּאֲשֶׁר עָשָׂה כֵּן יֵעָשֶׂה לּוֹ שֶׁבֶר תַּחַת שֶׁבֶר עַיִן תַּחַת עַיִן שֵׁן תַּחַת שֵׁן As he has done, so it shall be done to him: A fracture for a fracture, an eye for an eye, a tooth for a tooth.

A quote attributed to Mahatma Gandhi tells us that an eye for an eye makes the whole world blind. Critics from Origen to Shakespeare have accused Jews of being so focussed on following laws that they have forgotten compassion. They have left behind common sense. They have abandoned forgiveness. 

Nothing could be further from the truth. Forgiveness is at the very heart of Judaism. So what does this mean, an eye for an eye, a tooth for a tooth?

If we look at other codes of law from approximately the same time, we get an idea. We see that if a nobleman damages the eye of a commoner, there is no penalty. If a commoner damages the eye of a nobleman, the penalty is death. So the basic concept of this verse is fairness.  Judaism asks that people be punished appropriately for whatever crimes they commit, no matter who they are. The Torah tells us that we may not favor the rich nor the poor. All are equal before the law.

The rabbis of the Talmud take this concept of fairness even further. Injuries affect some people more than others. For example, damage to the hand of an insurance salesman is not the same as damage to the hand of a concert violinist. Therefore, the rabbis say, the intention was always that the value of an eye must be paid for the value of an eye, the value of a hand for the value of a hand. What this verse states is merely this: Punishment must fit the crime, no matter who the victim or the criminal may be.

These principles are enshrined also in United States law. If anyone has broken US law, they should be tried, and any penalties must be fair. Unfortunately, the debate on torture has been focussed on whether or not the torture was effective. Former Vice President Cheney says it was. The head of the F.B.I. says it was not. To me, that is besides the point. This is the United States of America. Should we stand for imprisonment and torture without trial? Or liberty and justice for all?