Shoftim 5766 — Exemptions from fighting

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Scales  צֶדֶק צֶדֶק תִּרְדּף לְמַעַן תִּחְיֶה וְיָרַשְׁתָּ אֶת-הָאָרֶץ אֲשֶׁר-יְי אֱ-להֶיךָ נתֵן לָךְ

Justice, only justice shall you pursue, that you may live, and inherit the land which the Lord your God gives you.   …Deuternomy 16:20

Justice is what God wants from us more than anything.  This week’s Torah reading, Shoftim, commands us to pursue justice.  The midrash tells us as much as God liked sacrifices – the Torah calls them “a pleasing fragrance to the Lord” – God loves justice even more.  The Midrash in Deuteronomy Rabbah says “scripture says, “To do righteousness and justice is more acceptable to the Lord than sacrifice (Prov. XXI, 3).”  The Bible does not say, “As much as sacrifice, but More than sacrifice.” Why?

The Midrash brings several reasons: sacrifices could only be brought when the Temple stood; righteousness and justice are eternal.  Sacrifices only atone for unwitting sins, righteousness and justice even atone for intentional sins

The Midrash brings further proof from King David.  God told the prophet Nathan to let David know that he will not be privileged to build God’s house, that honor would go to his son, Solomon.  Someone who wanted to curse David would say “it would be a good thing for God’s House to be built soon!”  (Meaning, “you should die soon”).  But God said “By your life, I will not shorten your life even by one hour.  When your days are up, I will set up your son after you and establish his kingdom – but not before.  The righteousness and justice which you do are more beloved to me than the Temple.”

How do we pursue justice?  This week’s Torah portion begins with the following commandment: Judges and officers shall you appoint in all your gates, which the Lord your God gives you, throughout your tribes; and they shall judge the people with just judgment.

And what are the officers to do?  This week’s parsha also tells us that as the people prepare for war, the officers have a special task in the preparations:

“And the officers shall speak to the people, saying, What man is there who has built a new house, and has not dedicated it? Let him go and return to his house, lest he die in the battle, and another man dedicates it.  And what man is he who has planted a vineyard, and has not yet eaten of it? Let him also go and return to his house, lest he die in the battle, and another man eats of it. And what man is there who has betrothed a wife, and has not taken her? Let him go and return to his house, lest he die in the battle, and another man takes her.  And the officers shall speak further to the people, and they shall say, What man is there who is fearful and fainthearted? Let him go and return to his house, lest his brothers heart faint as well as his heart.  And it shall be, when the officers have finished speaking to the people, that they shall appoint captains of the armies to lead the people.”

Does this make sense?  Is this just?  When you are going out to war, there is a long list of people exempt from going?  Including anyone who is “fainthearted?”

Let’s look at some real life examples of people in Israel and America who have refused to serve to try and understand the justice in who goes to war and who doesn’t.

It is well known that in Israel there is a segment of the population that does not serve in the military.  I don’t like calling them “ultra-Orthodox” because the truth is they are not any stricter in their adherence to halacha, to Jewish law, than other observant Jews.  They tend to live in secluded communities and wear the clothing of 19th century Polish nobility out of tradition and custom, not out of being more Orthodox, whatever that would mean, than other observant Jews.  So I’ll call them the haredi, the Hebrew term used to describe the group, which literally means “trembling,” as they strive to be so pious they tremble before God.

Is it right that for the most part (other than “Nachal Charedi,” a single battalion of about 1000 troops) the haredi don’t enlist and don’t get drafted into the IDF?  Do they meet one of the exemption categories of the Torah?

They say it’s not because they are afraid.  They say it’s because studying Torah and praying protects Israel.  They claim they are doing their part by pushing themselves toward greater exertion in their Torah studies during a time of war, acquiring additional merit for the nation of Israel which protects the country like a force field from God.

Rabbi Mendel Weinbach points out a few sources for this in the Torah.  In the book of Leviticus (26:3-5) we read: "If you shall follow My commandments… the Land will give forth its bounty… and you shall dwell securely in your Land." (Vayikra 26:3-5). Rashi cites the explanation of our Sages that "follow My commandments" means toiling in the study of Torah.  So it’s through toiling in the study of Torah that we merit to dwell securely in the land, so the scholars claim they are doing their part.

Furthermore, the haredi point to a couple of passages in the Talmud that show it is wrong to press scholars into service.  There is a passage in Nedarim which says that Abraham was punished and his children were doomed to Egyptian servitude for 210 years because he pressed scholars into service, as it says “He armed his dedicated servants.”  Never mind that this was something like 400 years before the Torah was given to Moses.  And there is also a passage in Sotah which says that King Asa was punished because he imposed labor on the disciples of the Sages.  In the Tanakh it says “Then King Asa made a proclamation unto all Judah; none was exempted.”  The Talmud inquires what does it mean none was exempted?  According to Rab, “Even the bridegroom from his chamber and the bride from her canopy.”  Which, of course, is one of the categories exempted by the Torah.

However in relying on these exemptions the haredi are ignoring the difference between a milchemet mitzvah, a commanded war, and a milchemet reshut, an optional war.  An optional war, which we are forbidden to wage except when we have a Sanhedrin, is one to expand territory.  A commanded war is either war against the seven nations, Amalek, or to help a Jew in distress, i.e., self-defense.  Rambam says that the exemptions given in our Torah portion only apply to optional wars.  In a commanded war Rambam says “all go out” and echoing the Talmud, he says “even the bridegroom from his chamber and the bride from her canopy.”  And presumably the Torah scholar as well.

The Radak, a 12th century French commentator brings proof that Torah scholars did not always exempt themselves.  According to the Radak when the Philistines heard that King David got married, they said to themselves “it’s written in their Torah that when a man takes a new wife he doesn’t go out in the army – let’s go and attack them now!”  But Radak points out they didn’t know that David was wise, and he interpreted what was written in the Torah, as only applying to a milchemet reshut, an optional war, but in a commanded war, as in self-defense, everyone goes out, “even a bridegroom from his chamber and a bride from her canopy.”  So even King David – often referred to in literature as a great Torah scholar – said the exemptions did not apply for a commanded war.

The war in Lebanon was clearly a milchemet mitzvah, a commanded war, we went to war first to rescue our soldiers, and it int
ensified when we needed to stop the rockets from falling.  Where’s the justification for the haredi to sit on the sidelines?

The blogger "Classmate-Wearing-Yarmulke" brings an interesting additional reason beyond the merit of Torah study.  He was in Israel and saw a soldier with long peyos and big yarmulke, sort of badges of the haredi.  He approached the soldier, allowed as he thought it was cool and wished there were more like him.  After giving the usual reasons the haredi don’t serve–learning Torah is more important, if you join the IDF you’re going to end up relaxing your religious observance, etc, etc—the soldier gave another reason.  The blogger reports “He claimed that the IDF didn’t want Charedim to serve, that they would make terrible soldiers, because they are non-violent, gentle people.  Secular Israelis, OTOH, grow up in the Israeli public school system, so they are more appropriate for combat.”  I would disagree—the verbal wrangling that goes on in a yeshiva would probably make good preparation for physical wrangling.

But there is some truth to the soldiers claim.  As reported on Jewish Media Watch, “former army Chief of Staff Lt.-General Amnon Lipkin-Shahak has declared that the military is simply not prepared to absorb an influx of haredi soldiers. "The Israeli army," he said, "would have to reshape itself" entirely to accommodate the religious needs of such inductees.”

But is that justice?  Is it fair that they shouldn’t serve because it would be logistically difficult to accommodate their religious needs?

There is another category of people in Israel who have been serving in disproportionately low numbers, as reported recently in Haaretz – secular Jews from Tel Aviv.  They find excuses and ways to get out of serving, and the IDF lets them get away with it.  Why?

Maybe it’s better not to force the fainthearted to go out to war.  We have historic precedents for continuing the exemptions from service even in time of war.  As Rabbi Arthur Waskow points out, “I Maccabees 3:56 reports that even when the land was under occupation by the Hellenistic empire ruled by Antiochus, and the Temple had been desecrated — the most extreme imaginable moment, when imaginably no one would have been exempted from military service — — Judah Maccabee applied this passage of Torah. He ordered back to their homes the newly married, the new homebuilders, the new vine-planters, and those who were frightened or gentle-hearted.”

About three centuries later, Rabbi Akiva (Tosefta, Sotah 7:22) commented, "Why does the verse [after specifying ‘the fearful’] then say ‘and the disheartened’? To teach that even the mightiest and strongest of men, if he is compassionate (Rachaman), should turn back." So, Rabbi Waskow concludes, “ both those who are afraid to be killed and those who are afraid lest they become killers must be exempted.”

But what’s the problem with exempting everyone who claims to be “fainthearted,” or “gentle-hearted?”

Who’s going to be left to fight the war?  Rashi points to a disagreement in the Talmud about who is eligible for the “fainthearted” exemption: Rabbi Akiva says anyone who couldn’t stand the sight of a drawn sword—any old coward.  While Rabbi Yosi, perhaps realizing that might leave too small an army, says no, it means someone who is known to be a sinner – and since in a time like war a sinner doesn’t have protection from God, they are likelier to be killed, so he has a good reason to be afraid.

Ramban in fact says that people getting an exemption from going to war have to bring proof—they have to have witnesses that will testify about their house, or their engagement.  And he says that if they are taking the “fainthearted” exemption, they need to bring proof following the logic of Rabbi Yosi, that they are sinner.  Ramban says if you don’t insist on proof, “the majority of the nation will return home with false claims.”  –Funny how some things never change!

There are some of the haredi who object to serving in the IDF because they are anti-Zionist.  The blog "Failed Messiah" quotes Shmuel Poppenheim, editor of one of the haredi papers as saying “We say Psalms and special prayers for peace and for the protection of all Jews everywhere, but we do not pray for the IDF."

Poppenheim explained that theologically it was problematic to pray specifically for the success of "Zionist soldiers".

"We don’t pray for the IDF because it causes a blurring of vision as if we were advocating a body that is not based on Torah ideals. People might get the wrong impression.

"But we do pray for the safety of every Jew including a Jewish soldier."

In other words, at least this group of haredi don’t serve because they are “conscientious objectors.”  Israel has had other conscientious objectors in the recent past.  In 2002 seventy reservists, including two dozen officers, refused to serve in Gaza or the West Bank because they believed Israel’s occupation of those territories was wrong.  In a petition they sent the government of Israel they described themselves as men “raised in the lap of Zionism,” and wrote that while they would continue to defend Israel, “they would no longer fight in the war for the welfare of the [Jewish] settlements.” The soldiers wrote they had “rendered service throughout the occupied territories and received orders and instructions that had nothing to do with the security of the state, and whose sole purpose is the perpetuation of domination of the Palestinian people.” 

And more recently, last year, there were soldiers who refused to do the opposite – they refused to be involved in evacuating settlers from Gaza.

What do we think of these conscientious objectors?  Why doesn’t the Torah give such a category of exemption?

What would be the appropriate response of the Israeli government?  Should they simply assign these soldiers to other duties?  Or should they prosecute them?

The United States also occasionally has to face this problem.  Just last week we had the first case of an American Army officer refusing to deploy to Iraq.  As reported in Time magazine, “When he refused to deploy to Iraq in June, Army Lt. Ehren Watada said he was following his conscience and upholding his duty not to obey illegal orders. But that didn’t impress military officials, who promptly charged him with violating Army rules and sent him on a path toward a likely court-martial.”

Here’s an interesting scenario where US law has an additional category of exemption not explicitly mentioned in the Torah.  The Torah does not explicitly tell us that we should disobey a bad king who issues evil orders.  But US law does say that a soldier should not obey an “illegal order.”  Lt. Watada’s legal team argued that since the decision to attack Iraq was made without UN authorization the war was illegal.  Time reports “He went further, arguing that the failure of the Bush Administration to find either weapons of mass destruction or a provable link between Iraq and the Sept. 11 attacks showed that Congress was persuaded "by means of fraud" when it voted to authorize the war.”

Should Lt. Watada be court-martialed?

Does it make a difference that he volunteered to serve in the Army, he was not drafted?  Does volunteering mean he has bought into a deal with the Army that he will do what they tell him?

Personally, I think the Army made a mistake in deciding to prosecute him.  He said he was willing to serve in Afghanistan because he believed in that war w
as a legal action.  So if I were the general in charge of deciding what to do with him I would have sent him to a mountain top outpost in the wilds of Afghanistan and no one would ever have heard of him.  Instead he has now become a lightning rod and cause celebre for everyone who is opposed to the war in Iraq.  It gives the opposition to the war more free press.

What about soldiers who are ordered to harshly interrogate Iraqi prisoners?  The Geneva Convention says it is illegal, the Bush Administration says the Geneva Convention does not apply.  What should a soldier do?

What about if a soldier was stationed with the National Security Agency and was instructed to listen in on domestic phone calls without a wiretap warrant having been issued.  Last week a Federal judge in Michigan ruled that the domestic wiretap program was illegal.  Would it be proper for a soldier to refuse to participate in the program while it is being litigated?  Does it matter whether the source of the illegal order is a sergeant or the commander-in-chief?

Whether or not I agree with the refusal of those who objector to serve, or to serve in certain places, I admire that they have the courage of their convictions.  That they see the responsibility to act in a moral fashion as such an imperative they are willing to risk time in jail to make the point – they are clearly not protesting because they are cowards.

Rabbi Waskow brings an interesting interpretation of the exemptions to army service found in this week’s Torah reading.  He suggests that the exemptions may have acted as a kind of “rough public check-and-balance, to measure whether the people really believed a specific war was worth dying for and worth killing for.”  With a king there was no way that the public could vote him out of office for engaging in a pointless war.  But if the young people called on to fight the war had a way to “vote with their feet” by availing themselves of exemptions from going to combat, perhaps the king would get the message that he did not have the support of the public, and would give up on the campaign.

Perhaps the exemptions act as a way to help insure that we only go to war when it is really truly necessary – when it is a moral thing to do.  And the law requiring a soldier to disobey an illegal order helps us make sure that war when conducted is conducted in a moral fashion.  And in that regard the exemptions help us to fulfill the most important exhortation in this week’s parsha: tzedek, tzedek tirdof, justice, justice you shall pursue.

Shabbat Shalom.

Reb Barry

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