Thursday, January 18, 2007

The Ticking Bomb

The latest issue of Tradition has an interesting article by R. J. David Bleich on the subject of torture in halakhah, specifically are you allowed to torture someone in order to discover where a ticking bomb is placed in order to stop it from exploding. He generally approves of such measures, provided that the person being tortured is somehow involved in the bomb plot and not an innocent bystander (e.g. a spouse or child of an involved party). R. Bleich goes through a number of theories -- both secular and Torah-based -- for torture and analyzes them.

I found this article somewhat surprising. I suspect that R. Bleich originally wrote it for a secular journal because about half of the article is on secular theories and even the portion on halakhic approaches lacks his usual thoroughness and rigor in dissecting the halakhic issues. I do not mean to imply that he did not present a complete case or that he made mistakes -- you would have have to have a combination of foolishness and arrogance to take on R. Bleich. It just seems that he does not present his usual plethora of sources and disputes. This might be because he covers some of the issues in earlier publications, but I suspect that this does not fully answer the questions.

Here's an example: In section V he discusses where hora'as sha'ah (temporary emergency measure) can permit torture. The first four paragraphs discuss contemporary legal theories, the fifth paragraph the basis for the concept of hora'as sha'ah, and the last three paragraphs a responsum of Rav Kook. And in the footnote on Rav Kook (no. 36), he doesn't even note that the Maharatz Chajes (Toras Nevi'im, p. 24) and Keren Orah (Nazir 23b) agree with Rav Kook's thesis that is addressed in the footnote.

This is just a theory on the intended audience of the article and not a critique of it. And now here comes the foolish and arrogant part of this post. R. Bleich states that, according to Rav Kook (and R. Chaim Volozhiner, not cited by R. Bleich), hora'as sha'ah only applies to hatzalas kelal Yisrael, saving the entire Jewish people: "If so, his thesis is applicable only when the threat is of the magnitude of a nuclear holocaust" (p. 114). I don't understand this jump to nuclear holocaust. A prime example of hora'as shaah was Yael and Sisera in which Yael applied the concept of hora'as sha'ah to sleep with him in order to kill an enemy general (Nazir 23b). There was no nuclear holocaust and the battle even continued after Sisera's death. Why should not torture for the assasination of an enemy general during battle in our time also be considered a legitimate application of hora'as sha'ah? I would think that, based on this biblical/talmudic example, hora'as sha'ah is more applicable than just in the case of an immediate and total threat to the entire Jewish community (or the entire Jewish community in the land of Israel).

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