Jose Padilla
While I am not going to dwell on the legal and political ramifications of the 4th Circuit Court decision, see Kevin Drum and Orin Kerr for that, I do want to bring some sources from rabbinic literature about jail and incarceration. Whether halakhah would recognize the status of enemy combatant is not our question. Also we will not discuss the distinction between incarceration before or during a trial and incarceration as punishment.
In Biblical literature we can find evidence of incarceration in a number of places. The most appropriate reference, this week being Parashat VaYeishev, is when Joseph is imprisoned in בית הסהר (Gen. 39:20). Another case is the famous “blasphemer” of Lev. 24:10-16 who is put במשמר (bamishmar) until it is clear what to do with him. A related case is that of the stick gatherer from Numbers 15:32-36 who is also held במשמר until his fate is decided. (How Moses could not have known what should be done to them is the topic for another time.)
Two examples from the Mishnah are Sotah 4:5 where we read about the possibility that the husband of the suspected adulteress might at that time be “bound in prison” (trans. Danby), חבוש בבית האסורין. Another example is from Pesahim 8:6 where the question is discussed regarding the Pascal sacrifice and one whose release from prison has been promised. Prison, בית האסורין, is mentionned a number of times in the Babylonian Talmud (Pes. 91a; Yoma 11a; see also Ket. 33b). It is interesting that the Biblical בית הסהר is not used in the Talmud in the context of human beings, rather it is used in relation to animals (see Eruv. 18a; 42b).
The post-Talmudic literature is rich with sources discussing prisons and imprisonment. There are interesting historical questions to be asked such as were there “Jewish” prisons? Did the Jewish community hand over Jews to be held in non-Jewish prisons? which we won’t be discussing here (see bibliography). The following sources have been taken from Simha Assaf’s classic book HaOnshin Aharei Hatimat HaTalmud.
Spain is rich with sources about Jews and jails. The R”i Migash in one of his responsa (par. 122) discusses the case of Reuben who bethrothed Leah and later had second thoughts about the bethrothal. As a way of pressuring Reuben to go ahead with the bethrothal he was put in jail. In a responsum (vol. 5, par. 242) of the Rashba we read about pressuring men who take concubines (either non-Jewish servants who converted to Judaism or Jews by birth) to cease and desist, with imprisonment being one of the methods of enforcing a communal enactment prohibiting this action. In the responsa of the Rosh (kelal 7:11) the Rosh says that מנהג פשוט בכל תפוצות ישראל מי שמחייב מס לקהל חובשים אותו בבית הסוהר ואין מביאין אותו בפני בי”ד אלא טובי העיר דנין אותו כפי מנהגם, “the prevalent custom in all of the dispersions of Israel is that one who is obligated tax to the community (i.e. they haven’t yet paid) they imprison him in the prison and they do not bring him before a court, rather the municipal leaders judge him according to their custom”.
There are many other sources but the last one that I want to bring comes from a fascinating communal enactment, takkanah, from Prague (1612). The takkanah talks about a number of undesirable behaviors which apparently were not so uncommon, among them cohabitating with prostitutes, drinking non-kosher wine, and immodest behavior between unmarried couples. Besides the punishments of branding (!) and expulsion from the community, there was apparently also some kind of imprisonment, תפיסות.
Bibliography:
EJ, “Imprisonment” by Menachem Elon
Simcha Assaf, HaOnshin Achar Hatimat HaTalmud
Salo Baron, The Jewish Community, index s.v. prisons