Detering Suicide Killers

May 1, 2002
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By Nathan Lewin

Note: The debate between Nathan Lewin and Arthur Green on how to deter suicide killers, which appears below, are two parts of a whole. Please do not circulate one article without the other.

Introduction We are now faced with an apparently intractable, increasingly ferocious Israeli-Palestinian conflict. This expanded issue of Sh’ma-offered only in part on-line-offers a series of perspectives on how American Jews might talk about the crisis. Some of the reflections might shock. These are shocking times, and that some are now thinking the unthinkable might well unsettle us. But the only way out of the present quagmire is to listen intently, to weigh previously inconceivable options, and to arrive at conclusions that contain just enough morality and just enough pragmatism. As usual, the opinions expressed in these articles do not necessarily reflect the views of the sponsors or the Sh’ma board. Feel free to participate in the conversation on-line.

The terrorists have a new indispensable weapon - created by Yasser Arafat and re-fined by Osama bin Laden - in their war against Israel and the United States. It is the walking bomb - the suicide killer. Weighty ethical issues affect how a civilized society can deter the murderer who is ready to sacrifice his or her own life.

Organized societies deter criminals by imposing punishments that demonstrate to potential offenders that crime does not pay. In theory, capital punishment should prevent all crime by those who calculate the consequences if they are caught. The death penalty is so drastic that its mere availability should deter a potential offender, even if it is rarely implemented. The Torah prescribes capital punishment for a wide range of offenses, but a Sanhedrin that executed once in seven years (or in seventy) was called “destructive.” Mishna Makkot 1:10

In the United States, we go through extreme contortions before we carry out an execution. For several years, the Supreme Court blocked all capital punishment, and even now it gives extra-careful treatment to cases that involve the death penalty. It is better, we are told, to avoid executing one innocent person than to kill one hundred cold-blooded murderers.

That calculus works so long as death is a true deterrent. Terrorism, as practiced by Arafat’s thugs and by bin Laden’s acolytes, has thrown that assumption to the wind. Drastic rethinking of the theory of deterrence is needed when terrorists successfully recruit young men and women to commit suicide while killing dozens or thousands of innocent civilians.

Terrorism will not be shut down until the individual terrorist is effectively deterred. Israel’s campaign of “targeted assassinations” has tried to prevent suicide bombings by swift nonjudicial execution of known organizers of such deadly attacks. Experience has shown, however, that others take the place of those executed, and the supply of those willing to give up their lives has not dwindled. And Israel’s policy of retaliating against political targets - i.e., Arafat’s headquarters or Palestinian arms caches - has been a total failure.

What threat will effectively deter the individual who is prepared to die so long as he can take many Jews (or, since September 11, many Americans) with him? Studies of Palestinian suicide bombers and of those who, knowing their death was imminent, carried out the September 11 horror indicate that most were closely knit to their families - to parents, brothers, and sisters. Indeed, these family members routinely give press briefings extolling the suicide killers, and they are the recipients of financial bounties from supportive Moslem charities and governmental organizations.

What if Israel and the United States announced that henceforth the perpetrators of all suicide attacks would be treated as if they had brought their parents and brothers and sisters with them to the site of the explosion? Suicide killers should know that they will take the lives of not only themselves and the many people they don’t know (but nonetheless hate) in the crowd that surrounds them when they squeeze the button that detonates their bomb, but also the lives of their parents, brothers, and sisters. The nation whose civilians are killed or maimed should, by “targeted assassinations” or other means, be free promptly to execute the immediate relatives of the suicide bombers. This consequence would, I believe, deter most suicide killers - many of whom now anticipate that not only will they be rewarded in a world-to-come, but that their immediate families will be honored and granted lavish benefits on this earth.

I hear anguished screams from an array of civil-libertarians. How can a civilized society - and particularly a people following the ethical principles of the Torah - justify killing innocent family members because their relative has gone on a demented mission? World opinion will surely condemn any such policy, even if - as I believe is absolutely essential - it is implemented only after full and repeated warnings in advance to prospective suicide bombers. Critics will cite the obscene Nazi policy of executing families and entire communities in retaliation for individual acts of resistance. How would the elimination of a suicide killer’s family differ from this indefensible Hitlerian practice?

This is no easy ethical question, but it is not as one-sided as may initially appear. Weigh the relative “innocence” of these family members against the “innocence” of the Israeli adolescents and youngsters killed by suicide bombers at discotheques and cafés or against the “innocence” of those who happened to be on high floors of the World Trade Center on the morning of September 11. If executing some suicide-bomber families saves the lives of even an equal number of potential civilian victims, the exchange is, I believe, ethically permissible. It is a policy born of necessity - the need to find a true deterrent when capital punishment is demonstrably ineffective.

How does it differ from Nazi retaliation against families of those Hitler classified as criminals? The Nazis punished the families of resisters who attacked evil Nazi generals or other governmental functionaries, not the innocent mothers, children, and teenagers whom the suicide killers target. And the Nazis did not claim, as Israel and the United States plainly can, that punishing the perpetrator for his own “crime” would not prevent its repetition.

And how “innocent,” in fact, are the families of the suicide killers? An “escape hatch” might enable them to avoid the consequences if, promptly after their son’s or brother’s suicide mission, they surrender to the authorities, publicly condemn the crime, and reject any financial or other benefit from it. The policy of family retaliation would also encourage family members to dissuade brothers, sisters, or children who appear to be gravitating toward suicide missions.

Finally, can Jewish law and tradition accept this seeming punishment of innocents? The Torah commanded the total eradication - including women and children - of certain nations (Amalek being a singular illustration) because of the continuing threat its members presented to the survival of Israel. When there is no other deterrent, self-defense entitles one to take measures that are ordinarily unacceptable.

The extremely modest proposals that some people are now willing to accept - national identity cards and roving eavesdrops (and even the “automatic” destruction of Palestinian villages that Alan Dershowitz proposed in The Jerusalem Post of March 11, 2002) - are the proverbial use of aspirin to treat brain cancer. They may occasionally disrupt terrorist plans but will have no major impact on the terrorist threat. Effective prevention will come only with effective individual deterrence of potential suicide killers.

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Nathan Lewin is a Washington, D.C. attorney who frequently appears before the U.S. Supreme Court. He is a member of the Adjunct Faculties of George Washington Law School (Jewish Civil Law) and Columbia Law School (Supreme Court Litigation).

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