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News and Op/Ed

Means and Ends
Florida Rep. (and former Sec'y of State) Katharine Harris 
Katrina, 9/11, Pikuach Nefesh and the necessity of torture..

When is it right for people to take the law into their own hands?

-- Dan Loeb

After the attack on the World Trade Center, victims survived in part by breaking into cars and vestibules to take refuge from the smoke and debris, by breaking into vending machines, and by breaking out of elevators. After Hurricane Katrina, New Orleaneans helped themselves to food and other necessities: Was this "looting" or "finding" ?

Apparently, for the Associated Press, this was more a question of race  than of law.

Jewish law is clearer on this subject. In cases where life is at stake
(pikuach nefesh), one must do everything in his or her power to save a life (even his or her own). This mitzvah supercedes all other mitzvot abrogates injunctions against all forbidden acts (except idol worship, illegal sexual relations and murder).

American law is based on English common law which contains the notion of necessity. This notion, more strictly defined than the Jewish notion of pikuach nefesh, can be used as a defense when a law is broken because there was no other viable choice.

Those in the seat of power have long used the principals of necessity /  pikuach nefesh to get around inconvenient laws: for the better and for the worse.

In Megillat Esther, when Mordecai suggests that Queen Esther see the King to denounce Haman's evil plan, Queen Esther tells Mordecai 'All the king's servants, and the people of the king's provinces, do know, that whosoever, whether man or woman, shall come unto the king into the inner court, who is not called, there is one law for him, that he be put to death.' However, Mordecai suggests that Esther may have become Queen exactly in order to be able to save the Jews in a situation such as this. Queen Esther realizes her responsibilities and decides to deliberately disobey Persian law in order to save the Jewish people. 'So will I go in unto the king, which is not according to the law; and if I perish, I perish.' The story ends happily with the King pardoning Esther for appearing unsummoned, and with the villain Haman and his band thwarted.

During the confusing aftermath of the 2000 Presidential election, Florida Secretary of State Katherine Harris revealed that she relied on the story of Queen Esther for guidance. Just as Queen Esther was willing to do what it took to prevent a Jewish genocide, Katherine Harris was willing to do what it took to prevent what she saw as genocide of unborn children which could only be stopped by Republican appointments to the Supreme Court.

Personally, I do not view abortion as the moral equivalent of genocide like Katherine Harris does, so while I comprehend, I do not condone her strategy. When people take the law into their own hands, they are doing so at their own risks; if things do not turn out well, they and others may suffer for their choice of actions no matter how well intended.

Recently, there has been a great deal of debate about McCain's amendment to the 2006 defense appropriation bill forbidding the use by the U.S. government of the sort of torture he had to endure as a prisoner of the Viet-Cong. The administration argued against the amendment, threatened to veto the bill (which would have been Bush's first use of his veto power), and now has declared that he construes the law as applicable only to the Defense Department but not for example to Central Intelligence Agency interrogations in Iraq, Guantanamo Bay, and secret "black sites" around the world.

Administration spokesmen and right-wing editorialists posit a "ticking bomb scenario" where we have a terrorist in custody who could provide information necessary to defuse a nuclear device threatening to destroy New York City. Perhaps a judicious use of torture could save the lives of 20,000,000 Americans?

Others counter that such a situation is unrealistic, and intelligence experts discount the credibility of any information obtained through torture.

Should an exception be carved into the torture ban permitting it in such exceptional circumstances? I would agree with those who argue that the exception already exists through the legal principal of necessity.

If those in charge save the live of 20,000,000 Americans by their actions, then they would probably be rightly regarded as heroes for whatever they did irrespective of the technicalities of the law, and the inhumanity of their behavior what judge would dare punish them, and even if they were punished, they could at least take satisfaction in having saved so many lives. But they must be sure of themselves, for if the danger turns out not to be quite so imminent, they will be viewed as traitors to the principles of our Constitution which differentiate us from those whom we are fighting.

To illustrate this point on a more human scale, consider the film "Guarding Tess". Nicholas Cage plays the role of Doug Chesnik the Secret Service's Special Agent in Charge. He believes Earl was involved in the kidnapping of Tess Carlisle, the widow of a former U.S. President. Doug shoot one of Earl's toes, and threatens to continue shooting until Earl reveals the location of Tess which he eventually does.

Doug (Nicholas Cage) is clearly relying on the principal of necessity. He knows that Tess will not survive if she is not found soon. He takes full responsibility for his choices. Even though his supervisor yells "I'm telling you to holster your pistol" and tells him "You're going to prison", Doug perseveres. This is Hollywood, so of course Doug was right, finds Tess's Cage in the Nick of time, and gets a promotion to boot. Realistically, if Doug was wrong, and Earl was simply a witness to a horrendous crime as he claimed to be, Doug would have been locked away.

Why are we "good" and the evil-doers "bad"? In part, it is because they are willing to adopt any means to promote their ends, while we claim to adhere to certain principals among which is the prohibition of cruel and unusual punishment. Engaging in torture crosses the thin grey line which separates our morality from theirs, so it must not be taken lightly. The statutes should be written with no exception to permit torture. If an occasion nevertheless arises for which those in power deem to require torture,   they should boldly admit to what they have done and accept the consequences for the better or for the worse..