The Limits of Self-Defense

Rabbi Melanie Aron

Saturday, February 5, 2005

A suspected terrorist is captured. There is reason to believe that he is involved in an attack that is in the works at that very moment. He is questioned but refuses to divulge the information necessary to halt the attack. How far can the authorities go in pressuring him to reveal the details critical to saving life?

This question has been on people’s minds this week as Alberto Gonzales was confirmed as Attorney General in what was considered a surprisingly close vote.

This is also a dilemma with which the Israeli government has struggled throughout its history. Safeguarding the life of its inhabitants is a basic function of government, but Israel has faced on-going terrorist campaigns against civilians on buses and on the streets, in schools, restaurants and coffee shops.

In 1987, the Landau Commission, after an investigation of the General Security Systems operations in preventing terrorist attacks allowed:

“A moderate measure of physical pressure as a last resort to prevent violent attacks.”

Though limited in scope this decision was criticized by the international community, by Israeli human rights activists, and, in a pre 9-11 mindset, by the United States.

In 1999, the Israeli Supreme Court reviewed that ruling.

In a decision that surprised many Israelis, including then Prime Minister Ehud Barak. Interestingly, it was a decision which followed a two year period of significant terrorist activity in which 121 Israeli civilians had been killed and 707 injured despite the ongoing peace process.

The Israeli Supreme Court ruled that the General Security Service was “not authorized to use techniques/interrogation involving the use of physical pressure.”

In particular the ruling cited and forbade shaking, forcing prisoners into contorted physical positions and hooding.

This ruling followed other Israeli Supreme Court cases over the years that had prohibited brutal or inhumane means and which had held that the investigator could be held personally criminally liable for abuses that took place in questioning a suspect. This was part of a general philosophy , expressed by Israelis in the phrase, “in a democracy – not every effective means is a legal means.”

Israel continues to struggle with these issues and remains conflicted in so called ticking bomb scenario, though this decision is considered important in making sure that physical pressure is not routine and that its use requires high level supervision.

In last week’s Torah portion, Jethro, Moses’ father-in-law, encourages Moses to appoint judges: capable men, who fear God, trustworthy men, who spurn ill gotten gain. In addition, the entire people are witness to the revelation of the Ten Commandments, basic laws, general principles, for the Israelite community.

What we learn in this week’s Torah portion is that the rule of law is so important that we must have specifics to help society deal with the complicated issues that will arise. We cannot depend on individual judges nor can we ignore any aspect of human activity.

Since 9-11, the United States has developed a much stronger interest in the techniques used by Israel in combating terrorism. It is my hope that Israel’s struggle in balancing the goal of protecting its citizens with respect for human rights and due process, will also be of interest to our government.

Centuries ago Cicero stated: In battle laws are silent. In modern times that has been stated as: When the cannons speak – the law cannot be heard. Yet Israel has shown that the voice of law can be heard even in consistently trying circumstances.

I’d like to conclude this morning with a short paragraph from the actual decision of 1999: “Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual’s liberty constitutes an important component in its understanding of security. At the end of the day they strengthen its spirit and its strength and allow it to overcome its difficulties.”