Opposing Terrorist Threats By Lawful Means Only

December 26, 2009 

I delivered the following sermon at Temple B’nai Shalom in Braintree, MA, on January 14, 2006. I was then serving that congregation as a student rabbi and am now serving there as Associate Rabbi, a part-time position. 

President Barack Obama officially renounced the use of torture immediately after his inauguration in January, 2009. He also promptly announced that the government would close Guantanamo by January, 2010. The government now appears to be unlikely to meet that specific deadline but continues to assert its intention to close Guantanamo as soon as it can do so. 

I present the sermon here as an argument against any resumption of the practices condemned in it.

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            Government agents wake you from your sleep and take you away from your home to a prison. They do not tell you on what charge you are imprisoned. They deny your demand for a lawyer. They do not tell you how long you will be in prison.

            You write a letter to a court petitioning for a hearing to challenge your imprisonment. The authorities intercept the letter and it never reaches the court.

            Agents of the government drag you from your cell and torture you. They force you to crouch or sit in uncomfortable positions for long periods. They deny your requests to be able to relieve yourself. They hold your head under water or place water-soaked rags in your mouth so that you believe they are going to drown you. They strip you of your clothes and chain you to the floor. They hold you in solitary confinement and restrict your ability to move and deny you all access to the world outside the prison. All the while they demand answers to their questions. You don’t know the answers, but they don’t believe you or they don’t care, and so your imprisonment continues, apparently without end.

This nightmarish story is one that we who lived during the Cold War would recognize. It describes Stalin’s worst dungeons in the vast gulag the Russians created.

I am bitterly sad that this same nightmare now applies also to the country I dearly love. Our own United States of America has engaged and still engages in these foul practices, and our President defends them as necessary in order to combat terror.

Our country in this respect is wrong. Our President is wrong. These practices are wrong. They are wrong under our Constitution, they are wrong under the ideals that define this country, and they are wrong under ancient principles of Jewish law.

The defenders of these wretched practices claim that they are necessary to keep us safe from terrorism. These defenders assert the right to keep on imprisoning suspects indefinitely without access to the courts and using what they call “intensive interrogation techniques” – the torture I just described – because, according to them, we are at war and during war we have to bend the law that would apply in peacetime.

This is false. It is false because this is not a true war, and it is false because it is particularly important to uphold the law in these times.

Why do I say this is not a true war? Because we are now engaged in what the President labels a “War on Terror.” Remember the War on Poverty and the War on Hunger? Using the term “war” against an idea, like poverty, hunger or terror, is a rhetorical device. It underscores the urgency of a cause and allows those who use this term to demand sacrifices from the people in service of the cause similar to those sacrifices that the nation would expect in a time of war.

But we did not give up any of our constitutional rights during the War on Poverty or the War on Hunger.

If this were a true war, like all previous true wars, there would be an organized government fighting us, its soldiers would be identified as such by their uniforms, and there could be an end to it, as there has been to all wars, when one side finally surrenders or is utterly defeated.

This so-called “War on Terror” differs from all other wars in all these ways. There is no organized government fighting us. Our enemies do not wear the uniforms of a foreign power. And there is nobody with whom we can negotiate a peace treaty, because no single person or group has the authority to enforce any such treaty.

What we are doing is wrong. It would be wrong in any circumstances. But it is especially wrong now, because we are fighting against terrorists, and there primary enemy is the law itself. Terrorists seek anarchy. To fight against anarchy, we have governments organized according to legal principles. If the government abandons those principles in order to fight the terrorists, it sinks into the very anarchy that the terrorists seek.

Where can we turn for guidance? To the State of Israel. That little country has been fighting true wars, with all its surrounding enemies, for many years. It has also been fighting against terrorists whose attacks against Israel’s citizens, our brothers and sisters and in some tragic cases our very own children, have now gone on for years, exacting a far larger toll proportionately than anything we in the United States have faced.

How has the Supreme Court of Israel responded to the challenge of terrorism? Has that court taken the path of expedience, suggesting that we can set aside laws during this emergency, as our President suggests? Not at all. On the contrary, the Supreme Court of Israel has bravely issued decision after decision that proudly upholds the rule of law. It has done so not only despite terrorism, but indeed all the more strongly asserting the rule of law as a rule that itself opposes terrorism. Listen to its words. They are set forth in an article printed in the Harvard Law Review in November, 2002, written by the presiding justice of the Israel Supreme Court, Aharon Barak.

During the Gulf War, Iraq fired missiles at Israel. Israel feared chemical and biological warfare as well, so the government distributed gas masks. A suit was brought against the military commander, arguing that he distributed gas masks unequally in the West Bank.

The court accepted the petitioner’s argument. Justice Barak said in his opinion:

When the cannons speak, the Muses are silent. But even when the cannons speak, the military commander must uphold the law. The power of society to stand up against its enemies is based on its recognition that it is fighting for values that deserve protection. The rule of law is one of these values.

    Justice Barak went on to say in his article:

the struggle against terrorism is not conducted outside the law, but within the law, using tools that the law makes available to a democratic state. Terrorism does not justify the neglect of accepted legal norms. This is how we distinguish ourselves from the terrorists themselves. They act against the law, by violating and trampling it, while in its war against terrorism, a democratic state acts within the framework of the law and according to the law. Justice Haim Cohen expressed this idea well more than twenty years ago, when he said:

What distinguishes the war of the State from the war of its enemies is that the State fights while upholding the law, whereas its enemies fight while violating the law. The moral strength and objective justness of the Government’s war depend entirely on upholding the laws of the State: by conceding this strength and this justness, the Government serves the purposes of the enemy. Moral weapons are no less important than any other weapon, and perhaps more important. There is no weapon more moral than the rule of law. Everyone who ought to know should be aware that the rule of law in Israel will never succumb to the state’s enemies.

Finally, Justice Barak included in his article this excerpt from a decision addressing the issue of an alleged food shortage among besieged Palestinians in the Church of Nativity in Bethlehem. The Israel Supreme Court allowed the petitioners to present their case and then applied the relevant rules of international law. In doing so, Justice Barak said:

Israel is in a difficult war against rampant terrorism. It is acting on the basis of its right to self-defense.... This armed conflict is not undertaken in a normative vacuum. It is undertaken according to the rules of international law, which establish the principles and rules for armed conflicts. The saying that “when the cannons speak, the Muses are silent” is incorrect.... The reason underlying this approach is not merely pragmatic, the result of political and normative reality. The reason underlying this approach is much deeper. It is an expression of the difference between a democratic State fighting for its survival and the battle of terrorists rising up against it. The State is fighting for the law and for the law’s protection. The terrorists are fighting against and in defiance of the law. The armed conflict against terrorism is an armed conflict of the law against those who seek to destroy it.... But in addition, the State of Israel is a State whose values are Jewish and democratic. Here we have established a State that preserves law, that achieves its national goals and the vision of generations, and that does so while recognizing and realizing human rights in general and human dignity in particular. Between these two there are harmony and accord, not conflict and estrangement.

             The same used to be true of the United States of America. We are also a nation founded upon high principles and dedicated to the rule of law against the whim of tyrants. I pray it will soon be so again.