Human RightsTetzaveh

Tetzaveh 5766 — Shabbat Zachor

Today is Shabbat Zachor, when we are commanded to remember what Amalek did to us—which is to have attacked us from the rear, targeting the women and children. This morning’s Maftir reading tells us that when we come into the land of Israel we must blot out the remembrance of Amalek from under heaven, we are commanded not to forget it.

If there is any doubt about what we are supposed to do, elsewhere in the Bible, in the book of Samuel, God commands Saul: “I remember what Amalek did to Israel, how he laid in wait for him on the way, when he came up from Egypt. Go and strike Amalek, completely destroy all they have, and do not spare them, but slay both man and woman, infant and suckling, ox and sheep, camel and ass.”

Why does God command us to wipe out Amalek so thoroughly?

Is it vengeance?

Or is it a punishment to Amalek, to bring justice and to act as a deterrent to other nations who might have ideas about attacking Israel in a similar fashion?

Or is it a preemptive strike, to prevent Amalek from harming us in the future?

We can rule out vengeance. We have many teachings in the Torah counseling us against vengeance. When Jacob’s sons take out vengeance on the residents of Shechem, Jacob chastises them severely. “Vengeance is MINE says the Lord.” We are not to be vengeful.

If it’s not vengeance, then presumably it is for purposes of deterrence or prevention.

Alan Dershowitz has come out with a new book, “Preemption: A Knife That Cuts Both Ways” which focuses on the question of deterrence versus prevention as strategies for dealing with threats, both on an individual basis and on a national level.

Dershowitz points out that “The democratic world is experiencing a fundamental shift in its approach to controlling harmful conduct. We are moving away from our traditional reliance on deterrent and reactive approaches and toward more preventive and proactive approaches.”

This is a monumental shift.

Historically, our criminal justice system has been based on the concept of punishment and deterrence. We don’t arrest someone because we think they might be inclined to commit a crime, as in the movie Minority Report. We wait for them to commit a crime, then when we catch them we punish them, and we expect that the punishment someone receives will serve as a deterrent to others. It’s the argument some use in favor of the death penalty: someone will think twice before murdering someone if they know they could be subject to the death penalty themselves. Someone who might be tempted to write bad checks will decide not to do that if he reads in the papers how someone who floated a bunch of bad checks went to jail.

The deterrence system means you accept a certain level of loss. Some people are going to get killed. Not everyone will be deterred by the punishment of others. Some will think they are the ones who will be able to get away with it.

As long as murder is on a retail level, society as a whole can tolerate that approach.

As Americans we treasure our liberty. We hold innocent until proven guilty as a bedrock of our democratic republic. Eighteenth century English jurist William Blackstone, whose work on common law greatly influenced the language in the US Constitution, said “Better that ten guilty persons escape than that one innocent suffer.” While that statement is not explicitly codified into US law, it is the basis for the principle that someone must be proven guilty “beyond a reasonable doubt.”

For crimes like murder on a retail level, we as a society can tolerate that approach. If ten murderers get away with it, justice may not be served, but enough other murderers will still be caught and punished for the deterrence concept to still be credible. And in Blackstone’s view it would be a greater travesty of justice to punish an innocent person than to let a guilty person escape.

But what happens when murder is done wholesale?

If we could have prevented the 2,752 deaths and billions of dollars in losses of the attack on the World Trade Center by stopping the terrorists in a shootout that would have resulted in the deaths of a few innocent bystanders, we all understand it would have been worth it. If one innocent person would have had to sit in a jail for years, or even life, to prevent such a great loss of life, it would clearly be worth it.

The Torah tells us that while innocent people should not suffer, a certain amount of innocent people suffering is acceptable. When Abraham argues with God to spare the cities of Sodom and Gomorrah, he starts out saying “what if there are fifty righteous people there? Would you destroy the righteous along with the wicked?” God agrees that if there are fifty righteous people there he would spare the city. In an amazing bargaining session, Abraham gets him down to ten – but no lower. Apparently inflicting harm on nine righteous people to root out the evil in Sodom and Gomorrah would have been acceptable to God.

We can’t use that passage to formulate any kind of specific guidelines—we don’t know how many murderers were being stopped with the potential loss of nine righteous people—but we do at least get the guidance that the suffering of some number of innocent people is acceptable to secure a safe society.

To try and stop crimes before they occur is of course a difficult proposition. In Alice in Wonderland, the queen makes an argument for preventive confinement that Alice had trouble refuting:

‘there’s the King’s Messenger. He’s in prison now, being punished: and the trial doesn’t even begin till next Wednesday: and of course the crime comes last of all.’

‘Suppose he never commits the crime?’ said Alice.

‘That would be all the better wouldn’t it?’ the Queen said, as she bound the plaster round her finger with a bit of ribbon.

Alice felt there was no denying THAT. ‘Of course it would be all the better,’ she said: ‘but it wouldn’t be all the better his being punished.’

‘You’re wrong THERE, at any rate,’ said the Queen: ‘were YOU ever punished?’

‘Only for faults,’ said Alice.

‘And you were all the better for it, I know!’ the Queen said triumphantly.

‘Yes, but then I HAD done the things I was punished for,’ said Alice: ‘that makes all the difference.’

‘But if you HADN’T done them,’ the Queen said, ‘that would have been better still; better, and better, and better!’ Her voice went higher with each ‘better,’ till it got quite to a squeak at last.

Alice thought “there’s a mistake here somewhere—“

There is a mistake in here somewhere. The mistake is in not thinking through the relationship between civil liberties and prevention. In rushing headlong toward prevention—because deterrence doesn’t work against suicide bombers—have we thought through exactly what kind of price we are willing to pay?

The central thesis of Dershowitz’ book is that while preventive confinement and preemptive wars are nothing new, and will always be practiced, he says “no systematic and widely accepted jurisprudence of preventive intervention has ever been developed.” In other words, the world has recognized that prevention and preemption are necessary at times—but we have not done the work of figuring out what are procedures and what are the guidelines under which we implement preventive measures. He is not at all opposed to preemptive wars, or preventive confinement—but he maintains that we need to figure out the ground rules, not just shoot from the hip and ignore civil liberties completely in our rush to prevent tragedy.

Dershowitz maintains that the world will learn a lot about how to do these things from Israel. Israel has more experience with having to deal with decisions about preemptive war and preventive strikes on terrorists than any other nation in the world. And Israel is explicitly committed to following a morally defensible course of action in its dealings with existential threats.

It is way beyond the scope of what could be covered in D’var Torah to explore exactly what form those rules of engagement should take. But to give you some food for thought, it is instructive to look at a few situations where Israel did or did not take preemptive action.

In 1967 with Arab armies arrayed on the borders, Israel decided to make a preemptive strike, wiping out the Egyptian air force and other military targets in a first strike. In 1967, fewer than 800 Israeli soldiers were killed, and 25 enemy soldiers were killed for every Israeli who died.

In 1973, the Yom Kippur War, Israel decided NOT to do a preemptive strike. The Israelis knew there was a danger. They discussed doing a preemptive strike. But they decided against it largely because of political considerations. It was felt that having won the Six Day War, Israel was no longer considered such an “underdog,” and if they attacked first, the United States would not provide military support. So they decided to wait, and absorb a first blow—and the result was that there were three times as many Israeli casualties, over 2,600, and the ratio of enemy soldiers killed fell from 25 to somewhere between 4 and 7 to 1. Militarily, waiting was a mistake, even if politically it was the correct thing to do. But the complexity of that decision! How many preventable deaths are acceptable to secure political gains? But without the support of the United States, there might have been many more deaths in the long run. It’s a very difficult process to weigh.

When it comes to targeted assassination of terrorists, I believe they are a sad necessity in the war against those who seek to destroy us. You can’t capture a suicide bomber after he has committed a crime and punish him hoping it will be a deterrent. You have to stop him first. Israel goes after individuals they know through intelligence to be “ticking bombs” with precision strikes; typical news account will record three or four terrorists killed—and perhaps one or two innocent bystanders. The United States, on the other hand, rained bombs down on the city of Fallujah to try and stop terrorists resulting in hundreds of innocent civilian casualties.

Israel has been hard at work to develop a more nuanced approach to prevention than the US has. There is much for the world to learn from the experience of Israel.

To go back to our original question, why the commandment to wipe out Amalek? Deterrence or prevention? Ramban, Nachmanides, hints that the reason is tied to prevention. Ramban teaches “the reason Amalek’s punishment is greater than the other nations, is because the other nations heard about Israel and were afraid, and the remnant of Edom and Moav and the residents of Canaan melted away because of their fear of God, and the return of His glory, and Amalek came from a distance to do battle with God, and therefore it is written he didn’t fear God, and further, because he is a descendant of Esau and related to us, he got into an argument that wasn’t his.

Amalek didn’t fear God. Amalek was not going to be restrained by deterrence. The other nations were—they didn’t need a further deterrent. Amalek had to be stopped because they didn’t fear God – they didn’t fear justice – and they could attack again.

On Monday night we will be celebrating the holiday of Purim and reading the story of Esther. The Purim story gives us some guidance on conducting preemptive strikes.

To refresh your memory: Haman wanted to destroy the Jews, and the king gave him the authority to do that on a particular day. When the Esther approached the king, he then regretted his previous decision, but said there was no way to stop it – the wheels of “war” were in motion, the decree could not be reversed. But he could instead grant the Jews permission to engage in a “preemptive strike.” They could hit those that sought to kill them first.

And so, at the end of the story, in chapter nine of the Megillah we are told that the Jews gathered themselves together “to lay hand on such as sought their hurt.” We are told “Thus the Jews struck all their enemies with the stroke of the sword, and slaughter, and destruction, and did what they would to those who hated them.”

Note that the Jews attacked “those who sought their hurt.” They did not indiscriminately wipe out an entire ethnic group. They struck their enemies – but not the other people in those towns.

We must avoid irrationally lumping all Arabs or Muslims together. They are not all terrorists. The recent uproar over the potential sale of some American port operations to Dubai based DP World is an example of such erroneous thinking. As is no secret, there are many issues on which I disagree with our President George Bush. However, in this particular case, I support the President. Yesterday President Bush said “”In order to win the war on terror, we’ve got to strengthen our relationships and friendships with moderate Arab countries in the Middle East. The UAE is a committed ally in the war on terror. They are a key partner for our military in a critical region.”

Just because some terrorists come from the UAE is no reason to say all UAE companies are security risks. The shoe bomber, Richard Reid, was a British citizen. Should we consider British companies security risks? Timothy McVeigh was from Oklahoma, does that make all people from Oklahoma suspects?

During World War II, the United States locked up 110,000 Americans of Japanese ancestry, 70,000 of them US citizens, as a preventive measure because of concerns that many of them may have been spies. Such wholesale confinement is not justifiable. During time of war it would be fine to detain individual Japanese American citizens on the basis of individual suspicion—which is what the British and French did with Germans and others foreign residents on their soil during the war.

Even during times of war, even against terrorist threats, we need to take care to follow our own Constitution. The government’s monitoring of phone calls without warrants is a very troubling example of civil liberties being suspended because of a perceived threat. Back in the civil war, an issue related to suspension of the usual Constitutional protections during war time came before the Supreme Court. The Court said “this nation…has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln, and if this right [to suspend provisions of the Constitution during the great exigencies of government] is conceded (nb: even to a President who IS wise and humane), and the calamities of war befall us, the dangers to human liberty are frightful to contemplate.”

“The dangers to human liberty are frightful to contemplate.”

Yes, we must learn the lesson of Amalek, and follow the injunction to root out evil completely. We must continue to hunt for Osama bin Laden, not because “justice must be served,” but because we must prevent him from doing another 9/11. But as we root out Amalek, we must remember to do it the way our ancestors did in Persia those many years ago – to attack only those who seek to hurt us. Not every Muslim is a terrorist, not every company from Dubai is a front for Osama bin Laden.

May God grant our leaders the wisdom to formulate rules of prevention and preemption in the war against terrorists that strikes the right balance between security and fidelity to the principles of civil rights that have guided America since its founding. May the Holy One spare us from groundless fears and misguided prejudice on the one hand, and strengthen us in our resolve to fight the ones who really are evil on the other hand,


Barry Leff

Rabbi Barry (Baruch) Leff is a dual Israeli-American business executive, teacher, speaker and writer who divides his time between Israel and the US.

Leave a Reply

Your email address will not be published. Required fields are marked *