Volume 23 Number 02
Produced: Sun Jan 28 23:37:52 1996
Subjects Discussed In This Issue:
Administrative Detention (reply)
[Shmuel Himelstein]
Civil Disobedience
[Chana Luntz]
Laws of Pidyon Shevuyim
[Michael J Broyde]
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From: Shmuel Himelstein <himelstein@...>
Date: Fri, 26 Jan 1996 13:56:21 +0200 (IST)
Subject: Administrative Detention (reply)
After all the allegations and statements regarding my posting on
administrative detention, I believe a reply is in order.
First of all, it would appear to me fundamental that disagreements about
issues be limited to them - and not to ad hominem attacks, as to why
"the poster appears to show such sympathy for a non-Jewish population
that continues to show its hatred for the Jewish State." Surely that is
not a reasoned argument to my basic posting.
As to the various issues involved:
a) My point in indicating the fact that thousands of Arabs had been
detained in administrative detention as opposed to the very small number
of Jews, was to indicate that if one is interested in justice, it must
be justice for all. If administrative detention is wrong - and I'm not
sure, given the situation, that it is wrong - then it is wrong for
all. If administrative detention without trial is deemed to be valid
where there is the danger of terrorist acts by Arabs, I see no reason
why we should be blind to the fact that Jews, too, can pose a danger to
the Jewish State. May I remind readers that there have been at least two
Jewish underground organizations whose avowed purpose was to blow up the
Al Aqsa mosque. Ignoring the Halachic/Aggadic implications ("the third
Temple will be built with fire"), there is no doubt in my mind - and I
would assume in the minds of most of us - that such an act would have
brought about a major war between Israel and the Muslim countries. Would
it be improper to use administrative detention against members of such
an underground just because they are Jews? Common sense would appear to
me to say that such an approach would be absurd.
b) While I had deliberately refrained in my posting from mentioning the
individual involved who is now under administrative detention, because I
was interested in a Halachic discussion of the issue, some of the
posters seemed to me to be more interested in discussing the particular
case at hand. In the circumstances, I would like to point out that
Israel's Supreme Court reaffirmed the administrative detention of the
individual involved, so it is not as if there had been no legal
recourse. In his ruling, Justice Barak pointed out - as had been
published in the Israeli press weeks ago - that that individual had been
found to have fourteen full magazines of bullets in his home. The
quantity involved certainly seems to be far beyond the amount a person
needs for personal protection. Furthermore, the individual involved had
been a member of the JDL and then of Kach, and had evidently been
involved in attacks against Palestinians. Thus the court felt that in
the precarious situation at present, the administrative detention was
justified. I find it interesting that the common knowledge regarding
this individual's arms cache seems to have "conveniently" not found its
way to the American Jewish press or Jewish public. Am I paranoid in
believing that this might have been a deliberate attempt to smear the
government by showing how it puts innocent civilians in administrative
detention? Wouldn't a suppression of such vital evidence in some of the
Jewish press serve to substantiate their constant allegations that
Israel is a "police state"? (Parenthetically, I remember well that when
I was a Shaliah Aliyah in the early 1980s - when the *Likud* was in
power - I had a conversation with the editor of one of the American
Jewish newspapers, who told me then that it was clear to all [but, I
must admit, not to me]that Israel is a Police State ... The more things
change, the more they remain the same - "Police State" is evidently a
clear attention-grabber and sure to increase sales.)
c) One of the posters claims that - unlike the Arabs who were detained -
the present individual was never informed of why he was held. How the
poster is aware of the "fact" about the detained Arabs beats me. I
certainly have no idea either way. As to the individual in question,
after the police seized the quite extensive cache of bullets in his home
- and I assume that he was aware that they did so - any protestation
that he was unaware why he was detained seems to me to ring rather
decidedly hollow - and especially given his evidently numerous brushes
with the law in the past. Doth the American Jewish press protest too
much?
d) One of the posters posits that the reason we should help this
particular administrative detainee is Pidyon Shevu'im - redemption of a
captive. As best as I understand this, this law refers to a person who
was seized by brigands for the specific purpose of ransom. I fail to see
what the parallel is to the present case. This person is being
held/detained because the law officials feel that he may potentially be
a danger to public order. To my mind, this has nothing in common with
Pidyon Shevu'im.
e) Another comment made by a poster was that "No British man in London
was ever put in administrative detention." That may be correct.
However, at present, according to the present-day Northern Ireland
(Emergency Provisions) Act 1991, a police officer of commander rank is
able to authorise the stopping and searching of people for a period of
up to 28 days "were it appears" to them "that it is expedient to do so
in order to prevent acts of terrorism." Now, should one claim that this
only applies to Northern Ireland, there has been a move in England to
extend this law - and a slew of others like it - to all of Britain,
following the bombings in London. Thus, even the "cradle of democracy"
has considered curtailing individuals' liberty where the potential
threat of terrorism exists. Surely no one believes that Israel is less
at risk from terrorism - and given the Rabin assassination it is clear
that the danger is not only from Arab ranks.
e) Historically, one may also point out that at the time of "the
troubles" in Ireland, regulations were passed in 1922 under which the
Minister of Home Affairs for Northern Ireland was empowered "to order
the detention of a person arrested on suspicion of having committed
against the Regulations, and to order the internment of a person
*suspected of being about to act in a manner prejudicial to the
preservation of the peace and maintenance of order in Northern Ireland*"
(my emphasis - SH). The High Court of Ireland subsequently upheld these
regulations.
f) Now, taking matters closer to home for Americans, how would the
American readers of this forum feel about administrative detention if
thereby the World Trade Towers and the Oklahoma City bombings could have
been prevented? If by administrative detention Israel is able to
possibly prevent a major conflagration in the Middle East (imagine
another Hebron massacre or Al Aqsa being blown up - not that the person
involved at present was involved in any such plans!), would it not be
reasonable for it to resort to administrative detention? Where would
those posters who disagreed with me draw the line? Would they have
agreed (when the Likud was still in power) to a law placing under
administrative detention anyone who sought to hold a dialog with the
PLO?
g) One poster differentiates between the Arabs, who as a group "were
quite vocal in their opposition to the State," and "who used violent
means" toward overthrowing it, and the Jews, who were the ones
attacked. I wonder if the poster realizes that there are groups of Jews
within the State who have sought to overthrow it by violent means and to
replace it with a Halachah State. At least one such individual whom I
know served time for being involved in just such a plot. Are we to
assume that just because this only applied to a marginal group that the
State should disregard it? Let us remember that Yigal Amir, too,
belonged to a marginal group.
h) Finally, one poster seems to think that the Arabs that were placed
into administrative detention were potential terrorists, while the
present government used the same law to place under detention Jews who
would be guilty of nothing worse than civil disobedience. In my
view,both the former and latter allegations have no basis in reality.
At the height of the Intifada - along with the many Arabs who were
locked up and who were clearly a danger to the State as potential
terrorists - many were locked up for having been caught painting PLO
slogans. By the same token, anyone who reads the news thoroughly in
regard to Israel - and not the sanitized pap spread by Jewish newspapers
with axes to grind and a desire to increase circulation - will find that
there have indeed been Jews who have been involved in what can only be
termed terrorist activities, at first again Arabs and then against
Jews. To dismiss this truth is to belie history.
It is in light of all the above that I again renew my request for a
discussion of the major issue at hand: what does Halachah have to say
about the situation at hand? Should we Halachically have been obligated
to protest detention? And if so, under what circumstances? That, to me,
is the crux of the question.
Shmuel Himelstein
<himelstein@...>
----------------------------------------------------------------------
From: Chana Luntz <heather@...>
Date: Sat, 27 Jan 1996 20:20:41 GMT
Subject: Civil Disobedience
Yossi Goldstein writes:
> Do you want me to believe that all things being equal then it is OK
> to lock up these people? If they locked up Arabs whom they suspected of
> being possible terrorists then it is OK to lock up Jews because they may
> cause civil disobedience?
I would really like to focus on this assumption about the legitimacy of
civil disobedience. Because I have heard quite a bit that seems to imply
that it is halachically mutar, and I am not sure that it is.
Of course a lot would hinge on the halachic analysis one applies to the
Israeli government.
The dati leumi world, as i understand it, has traditionally followed the
position of Rav Kook. Rav Kook, as I understand him, in turn relied on
the halachic societal structure as understood by the Rambam and further
developed by the Ran, in which there is a kind of duel track system -
the 'ideal' one of the Sanhedrin and the more pragmatic one of the
King. The further development involved viewing the leadership of the
Jewish people, even in some form of Council as having the halachic
status of King. Rav Kook took this one step further, and endowed the
Israeli leadership/government with the status of Jewish King. This is
in contrast to the Charedi world, that either refused to recognise any
form of legality to the Israeli government at all (the Neturei Karta)
and thereby held that the only legtimate government were Arabs such as
Yasser Arafat, or took the attitude that the Israeli government should
be treated as if it were a non Jewish government such as the Turks or
the British, and to the extent that dina d'malchusa dina applied in the
Land of Israel (and I believe some hold that it does) therefore one was
bound to follow Israeli law in the same way one was previously obligated
to follow British or Turkish law, but no more than that.
Obviously if one followed either of the two latter approaches, the whole
issue of giving up land is a non issue, since the Israeli government is
either not entitled to be ruling at all, or it is as if one non Jewish
government is transferring sovereignty to another - ie as if the Turks
gave it to the British. So I always understood the position of those
opposed to the current policies of the Israeli government vis a vis the
shtachim to be based on the approach of Rav Kook.
The problem with that though is that there is quite extensive halachic
material on the appropriate way to relate to a Jewish King - and it
would seem to me that civil disobedience towards a Jewish King is
completely assur. For example the Rambam hilchos melachim perek 3
halacha 8: 'All who rebel against a Jewish king, the king has permission
to kill him. Even if he decrees on one of the people to go to a
particular place, and he doesn't go, or not to go out of his house, and
he goes out, he is chayav misa. And if he wants to kill him he can kill
him. As it says 'whoever rebels against thy command' (Yehoshua
1:18). And anybody who scorns the king or who insults him, there is to
the king permission to kill him ... and he is permitted to forbid and to
strike with whips for his honour'.
The Rambam then goes on to emphasize in halacha 9 that this does not
mean that we listen to the king if he tells us to violate a mitzvah. The
issue is discussed in Sanhedrin 49a, which dicusses the pasuk in
Yehoshua. The full pasuk is 'whoever rebels against your command, and
will not listen to your words in all that you command he shall die, only
be strong and of good courage', where this last phrase is understood to
exclude the case where the king commands against breaking the Torah. On
the other hand, if the king is permitted to kill a person, all his
property goes to the king (Sanhedrin 48b, Rambam 4:9) and a king cannot
be mochel on his kovod (Rambam 2:3).
Now on the basis of all that, i can't see how one can engage in civil
disobedience in relation to a Jewish king. Take for example the blocking
of the highways in Israel. Even if what one is protesting about is a
violation of the halacha, so one doesn't have to listen on that
particular issue, clearly the law that says the highways may not be
obstructed is a decree of the King which is not in volation of halacha,
and hence anybody doing it is in violation of a legitimate decree and
hence chayav misa.
And it doesn't seem to matter on the quality of the King. After all, we
learn out these dinnim from the situation of Navos and Achav. And it
seems clear that the problem was that with Navos it was a trumped up
charge, ie he never did what he was accused of doing - but if he *had*
in fact cursed Achav, it would have been legitimate for Achav to have
killed him and taken his vineyard. And Achav doesn't exactly get rave
reviews as a king, being one of the three who does not have a chelek in
Olam HaBa (Sanhedrin 90a, having done a lot for avoda zara, and killing
off prophets etc)
So i would be interested in knowing on what basis civil disobedience is
assumed to be halachically permitted, and why it is it is halachically
considered wrong for the Israeli government to lock somebody up,
administratively or otherwise, who has been, at the very least,
expressing sentiments diminishing its kovod.
And it seems to me that there might well be a distinction here between
Jews and non-Jews, in that non Jews are not commanded in the same
mitsvos that we are, so this requirement of kovod, or certainly this
level of requirement for the king may just not apply. In addition, where
the king in question never accepted them as subjects (as was the case in
the territories, where the land was never formally annexed and the Arabs
retained Jordanian citizenship and so presumably looked to King Hussain,
if not to Yasser Arafat as their king), it seems far less clear that any
such halachos would apply.
Any comments?
Chana
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From: Michael J Broyde <relmb@...>
Date: Sat, 27 Jan 1996 20:02:34 -0500 (EST)
Subject: Laws of Pidyon Shevuyim
One writer wrote in response to a post about the detention of an American
Jew by Israeli authorities as a security risk:
> Clearly, there are Halachot of Pidyon Shevuyim that apply to *Jews*.
> Why does the poster appear to show such sympathy for a non-Jewish
> Population that continues to show its hatred for a Jewish State?
While that is true, it implies that the rules of pidyon shevuim applies
to all who are taken captive, even by lawful authorties for a genuine
crime. I do not believe that such an implication is supported by the
halacha. One is obligated in pidyon shevuim only when the captives are
"starving, abused, naked, or in danger of lose of life" (rambam tzedaka
8:10) and as the Aruch hashulchan notes "this was in times of old and
now in the desserts of Asia and Africa when bandits fall on travelers
and hold them captive for ransom" (YD 252:1).
I do not believe as a matter of normative halacha that a
person who is arrested by the legal authorties and who are properly
detain people for crimes is covered by this halacha. Thus, a Jew who is
arrested for robbing a bank is not covered by the obligation of pidyon
shivuim.
In short, while the obligation to free captive does apply even
when the bandits are Jewish, I do not think the obligation ever applies
to people arrested for general crimes, independent of their Jewishness
and which are generally considered violations of the law of the land.
Whether this applies to the person under current administrative
detention fits this category or not is a matter for others more trained
in Israeli law that I.
Michael Broyde
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End of Volume 23 Issue 2