Talk about torture. The last few days have featured a fierce war between two ruthless combatants.Their tactics were brutal, disregarding the Geneva Convention. Only one side could survive the grueling struggle, and even that one would bear the scars. This scrimmage between two intractable foes took place... in my head.
The debate between the positions of President Bush and Senator McCain is substantive and poignant, notwithstanding the fact that each of them presented their views with the poorest possible arguments. I find myself, in the final analysis, siding with the Senator. Nothing should be enshrined in the form of legislation that alters the long-standing consensus of what the Geneva Convention forbids in wartime.
Best, I think, to approach this obliquely, taking a long and winding road to the main point. We ask ourselves: If an impending attack can likely be averted by using unorthodox questioning methods, even torturing or killing a prisoner, is that the correct decision? Moviegoers will recall that Bruce Willis and Denzel Washington debated this in The Siege.
The answer is provided deafeningly by the Talmud (Gittin 56a) in perhaps its most puissant discussion, its telling of the fall of Judea to Rome. An instigator was trying to spur the Roman emperor into attacking. He claimed the Jews were disloyal and proposed a test for confirmation. "Send an animal as a royal gift to the Temple and see if they accept." The emperor sent a magnificent calf but along the way the provocateur punctured its eyelid, rendering it unfit for the Temple in an oh-so-subtle manner.
Most of the Sages were prepared to receive the homage and waive the technical flaw, but they deferred to the leading scholar, Rabbi Zachariah, who was afraid it would establish a precedent. Let us kill him to prevent his reporting back, they suggested, but that too was vetoed by Rabbi Zachariah on the grounds that people would think Jews killed for minor infractions. The man brought the calf back to Rome and the emperor, deeply offended, unleashed the dogs of war.
The verdict of the scholars who compiled the Talmud a few hundred years later was unsparing: "The excessive tolerance of Rabbi Zachariah destroyed our home, burned down our Temple and exiled us from our land." The classic ethical work, Path of the Just by Moses Chaim Luzzatto (1707-1746), cites this and warns that saintliness, when not carefully calibrated, can segue into disaster. Certainly this is the case when national security is a consequence, as it was for Rabbi Zachariah, as it is for us today.
Notice the setup of that story. Rabbi Zachariah is taking the long view: what will people extrapolate from this event? The others, and the later scholars, are not disagreeing that the long view is usually better. They are pointing out that an immediate crisis trumps that approach, magnifying the short-term to the extent that tomorrow will just have to take care of itself. Let them think of us what they wish; right now our job is to save the nation.
However, short-circuiting the system in this way must be reserved for special instances of immediate, definable danger. It cannot become a new norm. In our own history, Abraham Lincoln suspended habeas corpus, we put Japanese-Americans into detention centers during World War II and we firebombed large civilian populations in Germany and Japan -- but we never tried to establish this as normative behavior. If you want examples that more closely approximate today's fight against terrorism, read up on the Philippines War. The rebels were torturing and killing in grotesque ways, and at certain points American soldiers gave as good as they got.
The argument made by President Bush to defend a degree of blurring the lines of our conventions can be granted. But only within the context of immediate suspicions and special information. To declare that the War on Terror is now so entrenched in our reality that the rules need official changing, or "redefining," would be a severe error. Not because of the hollow utilitarian objections raised by McCain and Graham. Because of the importance of preserving the mores that define us as a civilization.
If the CIA wants to play three-card monte with a special prisoner in an extraordinary circumstance, fine: I didn't see nothin'. To announce that somehow the danger posed by a bunch of guys without a country or weapons of their own is so great that it dwarfs our previous engagements with Germany, Japan and Russia, requiring an overhaul of the entire system? I think not.
The question of whether the Geneva Convention applies to terrorists has been decided by the Supreme Court. Readers of this space will note that we identified the silver lining in that cloud, namely that it legitimizes the hitherto controversial premise that shooting at a terrorist is an act of war. Let us leave that Convention intact; the unconventional, though urgent in emergencies, should remain unconventional. We survived Germany, Japan and Russia that way. We will survive these creeps too.
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