No Point to Torture in Capital Cases

Forced Self-Incrimination: Just Plain Wrong

8 Shevat 5776

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The whole world (or maybe just the United Nations) is still in an uproar over the burning of a house in the Arab village of Duma in Israel about six months ago. “Beginning the morning after the murders, as the investigation was just beginning, Israeli officials and media began claiming that the perpetrators were “Jewish terrorists.”” (Abu Yehuda summarizes the background well here.) “The firebombing was quickly attributed to the movement Israelis call “price tag,” in which extremist Jews attack Palestinian holy places or property in retribution for their own government’s actions regarding settlements,” said the New York Times shortly afterwards, on 1 August 2015. Here is more background on the story from a Jew who participated in a condolence call on the community (Arutz 7).

I deliberately linked to early accounts, so that we can recall how it was then, before young Jews — both men and underage boys — were formally accused, taken into custody and, by some accounts, treated worse than Arabs in their place would be. None of this would have happened if self-incrimination and forced confessions were not allowed air time or print space in any medium in Israel — never mind in a court of law.

The Jewish Division of the Shaba”k (Israeli Security Agency) claimed that there was a need to take young, even underage Jews into administrative detention due to a “ticking time bomb” situation (possibly to be discussed in a separate post – to read the full article, I suggest the search phrase “jewish ticking time bomb” if you don’t subscribe to HaAretz. Here’s another article where the ISA admits to treating “Jewish extremists” as ticking time bombs.).

Everyone knows that the American Constitution has what is famously known as the Fifth Amendment:

“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

How many have internalized what the Torah and Talmud say on the matter? It is not a matter of amendment — or a tacking on, if you will — to the law for these works of Jewish law, but part of its central body: It starts with the 9^th commandment, “You shall not bear false witness against your neighbor” and goes on to say, “At the mouth of two witnesses, or three witnesses…” The repetition of the Hebrew word edim there is deliberate; there is no unnecessary word in the Torah. Could witnesses be so important that the Torah appears not to even consider not having them in a case where the accused’s life or future is at stake?

Here’s a potential hiddush: Could one say, in easy legalese, that the Torah and Talmud together imply that a person of whom a confession is demanded or required is automatically considered to be in a conflict of interest and is therefore automatically recused?

The Talmud puts it more concisely and understandably for modern readers, with the exception of the phrase mesim atzmo, which I have translated as “impute on oneself” due to its (as I perceive it) mixed verb-direct reflexive object relationship¹.

A lot of people, especially women, long ago stopped considering Torah law and governance a viable alternative to what we have now because of issues such as the plight of the agunah. I hope that now, considering the environment we live in, where the entry of Muslim men en masse all over the world is creating far worse conditions for a much greater number of women (who were accustomed to going out freely to attend to their errands, visit friends and so on virtually without concern, but now must go out, if at all, in groups, always with an eye out for trouble and, if this occurs, no help from authorities), we in Israel can look at other problems where Torah clearly shines for everyone, such as the abolishing of self-incrimination and the requiring of witnesses to acts that could land a person in jail for life or dead, whether male or female. (In fact, since there seems to be no support at all from the feminists on issues where rape and other misogynistic acts by Muslims are concerned, they have rendered themselves and their philosophy irrelevant – this news story took 20 years to break.)

There is a lot more to be discussed, which is why I have collected many Torah sites on this blog and plan to add more as I find them. In the meantime, though, it seems that making Arabs and Jews “equal” is having the effect of making Arabs “more equal” than Jews. It might be time for the pendulum to swing strongly towards advocating, and achieving, Torah governance in Israel. Until then, if the Israeli government has any sense of true democratic justice — let alone Torah justice — the case against Amiram ben Uliel should be thrown out due to his inadmissible confession.

Continue reading…

From Hava haAharona, here.