Shabbat Zachor 5766
By Rabbi Barry Leff
Congregation Bnai Israel
Toledo, OH
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,
