In Judaism There Are Always Rules

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December 1, 2001
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Dov S. Zakheim

For the first time in living memory, Jewish Americans, like their non-Jewish counter-parts, have been victimized by terrorism in their own backyards. Their experience is hardly a novelty to Israelis, for whom terrorist attacks on civilians sadly have become a daily occurrence. Nor is it a new experience for Jews in general. Jews have experienced terrorism of one sort or another ever since the Amalekites attacked the weakest civilian elements of the Israelite camp.

Like all other aspects of Jewish life, that first war against terror was governed by divine guidelines, though very unconventional ones. In general, the Israelites conducted their military operations under strict rules of engagement. They were prohibited from attacking foes who were prepared to sue for peace; from engaging in wanton rape, even from destroying the fruit trees of conquered lands. These and other restrictions injected a sense of civility, morality, and ethics even when facing an enemy on the battlefield.

In contrast, the prescribed biblical response to Amalek’s depredations went much further: the Israelites were commanded to destroy Amalek root and branch. When King Saul failed to kill the Amalekites “and utterly destroy all that they have . . .both man and woman, infant and suckling, ox and sheep . . .” or even to kill their king, he forfeited his own kingdom. The prophet Samuel tolerated neither half-measures nor excuses.

Nevertheless, what was common to both conventional and unconventional warfare in ancient Israel was the fact that the rules of engagement reflected higher values, not merely human emotion. That fact remains valid today, both in Israel, and, as terrorism has spread to the United States, in this country as well.

A recent halachic debate in Israel underscores this proposition. A strict reading of the halachic texts would seem to imply that a terrorist may be summarily killed after, as well as during, a firefight without intervening judicial procedure. Yet, as Rabbi Yehuda Henkin has argued in numerous writings, two additional and critical considerations also apply.

First, there is the issue of dina demalchuta dina -“the law of the kingdom is the law.” International law, like American law, indeed like Israeli law, prevents the killing of captured terrorists, despite the impulse to do so.

Second, for Israel, but perhaps not only for Israel, there is the issue that the killing of unarmed prisoners would result in chilul Hashem,, the profanation of the Divine Name. While the United States is not governed by halachah, it does purport to be acting in God’s name – the God of Jews as well as of Christians, Muslims, Sikhs, and others. To kill imprisoned or captured terrorists would, therefore, besmirch the divinity in the eyes of non-believers.

Tom Friedman’s assertion in The New York Times that “we have to fight terrorists as if there are no rules” is therefore somewhat problematic for those who would apply higher religious and ethical values both to the conduct of their personal lives and to affairs of state. Judaism imposes rules even when there seem to be no rules; their application differs in degree, not in kind.

As Jews, and as Americans, we can and must retain our moral and ethical compass even as we implement unconventional rules of war. To the extent that we do so, we also will have less difficulty balancing the imperatives that drive a free society with the limitations on freedom that are necessarily imposed to maintain internal vigilance against a shadowy foe. And in achieving that balance, we will ensure that we come close to approximating a second prescription that Friedman offered in that same New York Times column: that we do our best to “preserve our open society as if there were no terrorists.”

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