Volume 23 Number 08
Produced: Thu Feb 1 23:41:28 1996
Subjects Discussed In This Issue:
Administrative Detention in Israel (3)
[David Guberman, Eliyahu Shiffman, Ed Ehrlich]
Administrative Detentions in Israel
[Warren Burstein]
Laws of Pidyon Shevuyim (2)
[Howard Reich, Michael J Broyde]
----------------------------------------------------------------------
From: <dguberman@...> (David Guberman)
Date: Fri, 26 Jan 1996 03:52:14 GMT
Subject: Administrative Detention in Israel
(Please forgive what, although based upon my understanding of
Jewish values, is essentially a political post. My only excuse is that
it responds to one of a number of prior posts on this subject of a
similar nature.)
Yosey Goldstein quotes Shmeul Himmelstein's comment that the same
administrative detention laws now in question when applied to individual
Jews "was applied to keep under administrative detention - but actually
in most cases in prison for extended periods of time and without trial -
of thousands of Arabs during the Intifida." Mr. Goldstein then
comments:
> I am sorry, but I think there is a big difference between
> using this law on the books to lock up Arabs who were attacking
> Jews and trying to bring down Israel and using that law to lock
> up a Jew!
Arabs caught "attacking Jews and trying to bring down Israel," were
tried, convicted, and imprisoned. There was no need for administrative
detention. The essential purpose of administrative detention was, and
is, to detain--usually to imprison--people against whom the authorities
cannot or will not charge and try.
> . . . If they are Criminals, Charge them! If not free them!
I agree. Of course, this is precisely what was said by those of us
who criticized the massive, we thought indiscriminate, use of
administrative detention against Arabs.
As I recall, the official rationale for administrative detention in
the case of Arabs was that presenting the security services' evidence
against administrative detainees would compromise important intelligence
sources. Presumably, the same rationale would be offered in the case of
Jewish detainees. Is there some articulable reason to believe that the
rationale is less true in the case of Jews than of Arabs?
> 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?
What facts support the claim that Jews are being administratively
detained "because they may cause civil disobedience?" The case of
Shmuel Cytrin, for example, was presented to the Supreme Court, which
agreed to his continued detention. Are we being asked to believe that
the Supreme Court sanctions detention for light reasons?
> . . . Call me a Bigot but I certainly think there is more of a
> basis to mistrust an Arab who was picked up during or after a
> rock throwing incident than a Jew!
I was not aware that a significant number of Arab administrative
detainees were "picked up during or after a rock throwing incident."
Does the poster, or anyone else, have any evidence to support this
claim? If not, is there "more of a basis" to suspect an Arab _not_
"picked up" in connection with "a rock throwing incident" than, for
example, a Jew associated with individuals or groups that have, e.g.,
expressed support for the mass murderer Baruch Goldstein, vigilante
action against Arabs, or the murder of Prime Minister Rabin?
Mr. Goldstein also writes of the IDF being "forced" (emphasis
deleted) to "incarcerate innocent Arabs to save Jewish lives." Can
someone provide an example of when the incarceration of an _innocent_
Arab saved a Jewsih life?
David A. Guberman <dguberman@...>
----------------------------------------------------------------------
From: Eliyahu Shiffman <RLSHIFF@...>
Date: Sun, 28 Jan 1996 14:04:36 +200
Subject: Administrative Detention in Israel
Yosey Goldstein wrote: "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 is it OK to lock
up Jews because they may cause civil disobedience?"
No, but (without reference to Shmuel Cytryn's guilt or innocence) it
*is* OK to lock up Jews whom they suspect of being possible terrorists,
or potential terrorists if they remain at large.
Yosey says: "I cannot see any reason for locking up this number of
people who all happen to live in the "occupied" territories. Is every
Jew there a threat to Israel's security?"
No, they aren't -- that's why only a tiny percentage are being placed in
administrative detention. But there is no doubt that some Jews are a
threat to Israel's security -- it would be naive to think otherwise.
Yosey says: "If they are criminals, charge them! If not, free them!"
Yosey's demand here is based on the American system of justice, which is
not Torah mi-Sinai -- it has its pluses and minuses, as does the Israeli
system. And Israel, which is subject to different problems than the
U.S. and has an altogether different culture than the U.S., needs a
different system of justice than the U.S. Besides, the world was not
particularly impressed with the system that acquitted Simpson for the
murders of Brown and Goldman and Nosair for the murder of Kahane.
Yosey writes: "I am sorry, but I think that there is a big difference
between using this law on the books to lock up Arabs who were attacking
Jews and trying to bring down Israel and using that law to lock up a
Jew!"
And what if the Jews the law is being used against are trying to bring
down the democratically elected government of Israel? Just because
someone defines what they are doing as being "for the good of the Jewish
people" doesn't make it so. We know that from recent experience. Maybe
we should give the benefit of the doubt in this case, not to Shmuel
Cytyn, but to the judge who had the facts before him.
Eliyahu Shiffman (<rlshiff@...>)
Beit Shemesh, Israel
----------------------------------------------------------------------
From: <eehrlich@...> (Ed Ehrlich)
Date: Mon, 29 Jan 1996 00:27:28 +0200
Subject: Administrative Detention in Israel
In the discussion on Administrative Detention in Israel there were some
extremely disturbing statements made. For the record, I'm recluctantly
FOR administrative detention when there is a serious threat to human
life - in the case of a Jew or an Arab.
Yosey Goldstein wrote:
>I am sorry, but I think there is a big difference between using this
>law on the books to lock up Arabs who were attacking Jews and trying to
>bring down Israel and using that law to lock up a Jew! I see a
>difference between using a law to safeguard Jews and their homeland and
>LOCKING UP THE JEWS THAT YOU ARE SUPPOSED TO BE SAFEGUARDING.
First of all, the law is supposed to be safeguarding everyone in the
area under Israeli control. Because of the comparatively high level of
violence among Arabs in the territories, this law has been mostly
applied to them. But, unfortunately there are a small number of Jews
who are also violent and do endanger innocent civilians. Member of this
very small group are just as dangerous as their Arab counterparts.
>We have a rule in Shas of
>RAGLAYIM LEDAVAR, there is a basis for an assumption. Call me a Bigot
>but I certainly think there is more of a basis to mistrust an Arab who
>was picked up during or after a rock throwing incident than a Jew
Don't worry a LOT more Arabs are being picked up than Jews. Also, as
someone who as served in the territories, I can assure you that we are
not G-d forbid, treating Jews and Arabs there equally.
>Again I am appalled at the comparison between a Jew and a suspected
>terrorist!
I am appalled also. Unfortunately, there are a small number of Jews
like Baruch Goldstein who are willing to act just like their Arab
counterparts. We even now have Jews who are willing to kill other Jews
because of their political beliefs. The fact that someone claims to be
Religious doesn't make him so. We have the absurdity of a Yitzak Amir
who after admitting that he murdered Yitzak Rabin z"l demanding glatt
Kosher food. Is the murder of Yitzak Rabin any LESS horendous because
it was done by a Jew than by a hated Arab.
Please remember, particulary if you live outside of Israel, that we Jews
here in Israel control the government, police and the army. For the
first time since the Makabim, we have the power as a people - not just
individuals - to make a choice between good or evil. How Israel decides
to treat its Arab minority is part of that choice. The conflict between
security needs and human rights does not make this an easy one. I've
been living with terrorism for almost 20 years and the Palestinian
Authority's control starts less than half a kilometer from home, so I'm
not indifferent to terrorism. But if Israel treats its minorities the
way Syria and Iraq treats their, then we will have become just like our
neighbors - Call me a bigot, but I don't want that.
Ed Ehrlich <eehrlich@...>
----------------------------------------------------------------------
From: <warren@...> (Warren Burstein)
Date: Wed, 31 Jan 1996 08:24:54 GMT
Subject: Re: Administrative Detentions in Israel
Howard Reich writes:
>Warren Burstein can't find the Pikuach Nefesh issue involving a loss of
>liberty, and questions whether Mr. Cytryn is being held under dangerous
>conditions, as if such were necessary before trying to help. Without
>accepting the implications of Warren's post, I will only mention that
>according to reports carried by the Shomron News Service and Arutz Sheva
>today, one of Shmuel Cytryn's legs is inexplicably broken, he wears a
>cast up to his knee and uses crutches to get around.
I did not bring up the issue of Pikuach Nefesh, Carl Sherer did. And I
oppose administrative detention irregardless of the nationality of the
detainee.
But, since Pikuach Nefesh was offered by Carl Sherer as a reason to work
for Mr. Cytryn's release, if there is a Pikuach Nefesh issue in being
held in an Israeli jail, does this not oblige us to act for the release
of every last prisoner?
In addition, how it known that the prisoner's leg is broken, but it is
not known how this happened? Is the prisoner allowed visits but not
allowed to talk to the visitors? Or do the ideological news services
know, but prefer to leave us in the dark? Something smells fishy here.
|warren@ an Anglo-Saxon." -- Stuart Schoffman
/ itex.jct.ac.IL
----------------------------------------------------------------------
From: Howard Reich <hreich@...>
Date: Mon, 29 Jan 96 20:51 EST
Subject: Laws of Pidyon Shevuyim
One needs to understand the language from the Aruch Hashulchan that
Rabbi Broyde quoted, which seemingly limited application of the Laws of
Pidyon Shevuyim to Bezman Hakadmon (times of old), as having been
written by the Aruch Hashulchan only because he was compelled to write
it by the Russian government's censor.
Rabbi Broyde would limit his inquiry of another country's laws to
whether the acts complained of are "generally considered violations of
the law of the land." I would suggest that inquiry should also be made
of whether there is fundamental fairness to the proceedings resulting in
or permitting, the continued incarceration.
Administrative prisoners Shmuel Cytryn and Rabbi Arye Friedman are being
held by Israeli authorities without having been charged with any crime.
(Notwithstanding Shmuel Himmelstein's allegation of a weapons offense,
neither has been charged with any crime.) Not only are they imprisoned
without due process of law as we in North America understand it, but
there is little semblance of fundamental fairness in the proceedings.
While the judges are provided with written GSS reports, the prisoners
and their lawyers are denied access to the reports. They have had no
opportunity to confront their accusers. And since crimes have not been
identified, it follows that it cannot be shown to Rabbi Broyde that they
are "generally considered violations of the law of the land."
(I should add that according to one article I saw, the law under which
the administrative detainees are being held is a holdover from the
British mandate and was never previously applied to Jews.)
----------------------------------------------------------------------
From: Michael J Broyde <relmb@...>
Date: Tue, 30 Jan 1996 23:34:13 -0500 (EST)
Subject: Laws of Pidyon Shevuyim
One writer, in criticizing my citation of the Aruch Hashulchan on a matter,
states:
> One needs to understand the language from the Aruch Hashulchan that
> Rabbi Broyde quoted, which seemingly limited application of the Laws
> of Pidyon Shevuyim to Bezman Hakadmon (times of old), as having been
> written by the Aruch Hashulchan only because he was compelled to write
> it by the Russian government's censor.
I believe this to be mistaken. The Aruch Hashulchan certain did write
items in his Choshen Mishpat section specifically for the sake of
censorship; however, he specifically went out of his way to place these
comments in a different typestyle and as footnotes. Thus, for example,
in the beginning of the laws of pikadon, he drops a star footnote as a
disclaimer that this rules are inapplicable nowadays. The similar
approach is taken by mishnah berurah in siman 329 and 330 (at pages 339
and 340 of volume 3). Indeed, both Rabbi Bleich and Rabbi Yisraeli note
this phenomina in their articles dealing with extradition in volume 8 of
techumin. However, to assert that the Aruch Hashulchan placed a
normative rule of halacha that he did not believe in the aruch hashulchan
without indicating that he really knew it not to be correct (by typeface
or the like) is close to an allegation of zeuf hatorah (misstating torah
deliberately) and should not be accepted without weighty proof.
The writer also states that determining whether detentions are proper or
not one should consider:
> whether there is fundamental fairness to the proceedings
> resulting in or permitting, the continued incarceration.
I think that that is partially right. In order to determine if this
person is being held in violation of halacha, would must determine
whether Jewish law recognizes administrative detention as a valid
exercise of either din melach, dena demalchuta or koach beit din,
depending on which theory of what gives government authority one
accepts. In addition, one must determine what is administrative
detention. Is it like physical punishment, or a monetary fine?
I lack the expertise needed to answer that question, to be
honest. I suspect that this is somehow connected to the Taz's assertion
(Found in Yoreh Deah 157:7-8) that prison seems to be like physical
punishment and not monetary deprivation. The truth is that I have
thought about the correctness of the Taz's approach many times, and
compared it to the Darchie Teshuva's, and recognize that I do not have any
clear way of asserting which approach is right, and the major achronim
are silent.
I remain unconvinced that any form of administrative detention,
for any length of time, and for any reason violates halacha.
This is a very hard issue that requires considerable analysis.
Michael Broyde
----------------------------------------------------------------------
End of Volume 23 Issue 8
