Thursday, August 18, 2011

Mesirah Madness

On the backdrop of the Levi Aron case (abducted and murdered Leiby Kletzky, July 12, 2011) the messy business of Mesirah has surfaced again, this time pointing to the sharp philosophical and principled differences between Agudas Israel and the Rabbinical Council of America. According to Rabbi Shmuel Kamenetsky of Agudas Israel, a rav (rabbi) has to be consulted prior to informing the police of a suspect in abuse, otherwise it might be considered a case of mesirah. Only a rav can adequately assess whether there is validity to the claim, according to Kamenetsky. The RCA, on the other hand, in a statement released by them confirms that if there is a suspected pedophile in the community they are obligated to be report it to the secular authorities immediately without consulting with a rabbi. Rabbi Shmuel Goldin, president of the RCA believes that if one has to err, it should be in favor of the potential victim. The two opposing views reveal the philosophical and substantive differences between the two parties.

Before getting to these differences, it would be beneficial to review the halachic sources and definition of a moser. Mesirah in Jewish law consists of informing or turning over another Jew to the non-Jewish authorities. The informer is referred to as a moser, something like a whistleblower. There is a severe prohibition against mesirah. Even if the moser is a religiously observant Jew, meticulously observing halachic practice, by being a moser he demonstrates his rejection of klal yisrael and is treated as an akum (oved chochavim, an idolater, Yoreh Deah 281:3 / Rambam Hilchot Teshuvah 3:11). However, like everything else in Jewish law, the laws of mesirah aren’t clear-cut. If a non-Jewish government official suspects that the Jewish community is withholding a suspect or vital information about a suspect this is considered a chilul hashem. In addition, if there was a criminal hiding within the Jewish community, rather than have the entire community seen as complicit by covering for him, the community is allowed to inform the authorities (Choshen Mishpat 388:2). Mesirah was treated more severely during stress periods such as during the Spanish Inquisition and in medieval Europe where survival depended on avoiding contact with government, regardless of how benign . Even if one were guilty of a crime, but because the government was anti-Semitic the fear was that the criminal would be treated harsher than what he actually deserved either by receiving a longer, harsher punishment, or abused by other inmates, turning him in would be considered mesirah. Today, however, where justice is delivered free of anti-Semitism, the rules governing mesirah have certainly changed and if there is someone within the Jewish community that is harmful or has become a public nuisance he can be turned over to the authorities at least according to the Choshen Mishpat 388:45.

This being the case the question is by what standard has Agudas Yisrael claimed that before turning a suspect over to the authorities one first has to consult with a rav. What possible insights or wisdom could a rabbi possibly have in making a determination than anyone else? I have often argued that one of the motivators of the orthodox rabbinic establishment, impotent as it is, is trying wherever possible to find a wedge by which they could increase their power. For the most part, much of their power has been eviscerated (through the empowerment of federations, social service agencies, communal leaders as well as an educated lay community) and the little power and influence remaining is being manipulated, even at the expense of possible victims. Their rational is that it protects the innocent under a troubled system that claims one is innocent until proven guilty but in fact is judged by the court of public opinion before the facts are in. Furthermore they claim that there is too much reliance on circumstantial evidence and too much plea-bargaining that provide incentives for false testimony.

While all this may or may not be true, the picture is broader and larger than their community. We no longer live in homogenous communities and people, including pedophiles are mobile and move from place to place, community to community and country to country (Abraham Monderovitz, is an example of a wondering Jew, fleeing from New York to his hometown Chicago and ultimately to Israel). We can no longer afford to foster a parochial vision of community but must see the wider implications of this irresponsible behavior. Agudas Israel operates with this myopic and parochial mindset while buttressing the power of their rabbinate that seem to have the unique and intuitive ability to reach a better determination than the layperson suspecting the abuse. What makes the rav any more competent to assess the claim than the claimant? He isn’t. Agudas Israel however is more concerned with maintaining the power of the rav within the community than they are concerned about protecting their followers from danger and harm. It appears that the RCA is more concerned with protecting the wider public from the possible harm of a suspected individual while Agudas Israel, less interested in the public, is more concerned with protecting the individual from the damage he might suffer from the legal system.

Monday, August 8, 2011

The Three Weeks: A Muse

On July 19, 2011 I flew El Al to Israel. It was a remarkable flight not only because it was less than half full but also memorable because of the musings it generated during the flight. For many this date is significant because it happened to coincide with the 17th of Tamuz, a fast day marking the beginning of the “three weeks”, culminating with the 9th of Av, a day that has gone done in infamy in Jewish history. The 9th of Av (better known as Tisha B’Av) marks the final destruction of the two Temples as well as numerous calamities that the sages claim happened on the 9th of Av, including expulsion of the Jewish community from Spain in 1492. Because of these historic calamities and the initializing of the Diaspora on this date, it would have been poetic justice had I left Israel on the Tisha B’Av.

In reality, Tisha B’Av is an anachronism in the Hebrew calendar. The other holidays on the Hebrew calendar are religious in nature reaching back to our scared texts, based upon ritual practice as practiced during and around the Temple service. Chanukah and Purim, which are post biblical, are celebratory in nature and have become part of the calendar because of the religious nature assigned to them by the rabbis and sages. With the exception of the Fast of Gedaliah, the17th of Tamuz and the 9th of Av aren’t positive religious experiences but rather are national calamities that point to the negative national, social and religious impact on the people. These two fasts then, bracketing the “three weeks” were and are national in character and thus making the rabbis as uncomfortable about them as they were about celebrating Chanukah as a national holiday rather than as a religious event. In line with this reasoning the rabbis texturized this three-week period with overlays of religious practice and detailed halachic proscriptions.

The conundrum in observance of these two fast days is that by marking these days essentially we are celebrating powerlessness. The destruction of the two Temples was the ultimate and supreme expressions of what powerlessness can bring. The destruction of the two Temples and our two thousand year sojourn in the Diaspora was the result, the rabbis argue of “sinat chinom”, unjustified and unqualified hatred, the balkanization of the Hebrew nation in to factious groups with the inability to stand united (The first Temple was destroyed according to the sages because of the flagrant violation of three principle sins: adultery, murder and idolatry). In fact however, the destruction of both Temples were as a result of the Commonwealth’s loss of political power. In both cases the Temples were corrupted long before they were destroyed; their priests were unfit and in fact no longer met the needs of the people they were ostensibly there to serve. Thus to mourn the destruction of the Temples is to mourn the destruction of a corrupt political/religious system which was powerless and existed only at the mercy of other regional powers. By marking these two days as seminal markers of our peoples destiny by fasting and self flagellation, we are in fact praying for the restoration of a Temple service that was not only corrupt but didn’t meet the national/religious/social needs of its citizens. The sages knew this, thus allowing for the Pharisees too wrestle power away from the Sadducees, the keepers of the Temple and the ritual associated with it.

These were some of my thoughts while flying to Israel on the17th of Tamuz, the seat of Jewish power and the arbiter of our fate as a people. Unlike the two previous Commonwealths this State actually has the power to decide its future regarding its foreign policy as well as determine what kind of a state it wishes to be. It has the democratic tools, governmental and non-governmental institutions available to make intelligent decisions regarding the welfare of its citizens. It is a country that gives full expression and meaning to the idea of “peoplehood” by virtue of its independence in its homeland.

There are those of the opinion that living in the Diaspora and observing Jewish ritual, including observing the halachic minutiae of the Three Weeks in some way brings them in line with the trajectory of Jewish history. It’s the opposite: By celebrating these two fasts and everything bracketed in between is a rejection of the modern State of Israel, and at best believing the State can be greatly improved upon by prayer and fasting for the reestablishment of the Temple service. It would appear that these people haven’t learned the lessons of history, thus placing themselves on the wrong side of history.