At the beginning of Parshat Vayigash, Yehuda mounted a spirited defense of his youngest brother Binyamin, accused by the mercurial monarch of Egypt of stealing the royal goblet. Yehuda, certainly, assumed Binyamin’s innocence and that the stolen merchandise had been planted in Binyamin’s sack, but could not know for sure. Indeed, other brothers, in the language of the Midrash (Breisheet Raba 92:8), castigated Binyamin as “a thief the son of a thief,” for he was the youngest child of Rachel who had stolen her father’s idols. Apparently, Yehuda felt that even a potential thief, with a pedigree of crime, deserved a defense and the proper administration of justice.
These are dark days in the land of Israel, and not just because the daily spate of Arab terror against Jews – stabbings, ramming, with the occasional shootings – shows no signs of abating. The government has settled in to its typical response of defensive measures, more barriers, more speeches, and calling for vigilance and perseverance by the population, and, of course, insisting that the rule of law be maintained. Yes, the rule of law.
It is painful to write what follows, and for some they will violate the unwritten rule that support for the State of Israel, whatever it does, must be instinctive, complete and unwavering. Perhaps it is the attorney in me that feels the need to raise awareness of these matters.
The recent allegations that the Shabak has engaged in torture against Jewish suspects in order to extract from them confessions are disgraceful, humiliating, a desecration of G-d’s Name and an embarrassment to the State of Israel. It must be conceded that they are only allegations, but so are accusations of criminal conduct. Four attorneys representing the accused – but deprived access to them for several weeks – last week detailed the alleged abuse: physical torture, beatings, burning and prodding of various parts of the body (including sensitive and private areas), sleep deprivation (in one case, three days), sexual abuse and other forms of debasement. True, even these are just allegations, but allegations grounded in physical evidence and first-person reports. The one adult arrested, released after three weeks of such maltreatment, returned to his yishuv after his interrogators admitted they had no evidence against him. His rabbi reported that he returned a broken man, suffering from post-traumatic stress disorder, and dysfunctional. The parents of a minor (most of those in custody are minors) were interviewed on Israeli television on Monday and claimed that their child – after three weeks of enduring such brutality – tried to commit suicide. He showed his parents the slash marks on his wrists, which weighs slightly more than the Shabak’s denial of the attempted suicide.
The predicate for these arrests was the arson-murder of an Arab family – parents and an infant child – in the village of Duma last summer. The crime, whoever committed it, Jew or Arab, was heinous, horrific, unthinkable and deserves to be prosecuted. The guilty should be arrested, tried, convicted, and incarcerated. But “Justice, justice, you shall pursue” (Devarim 16:20) – justice must be pursued but only through means that are also just.
The secular Israeli civil and human rights groups have been noticeably silent, along with American Jewish organizations (including some Orthodox ones) who are quick to condemn Israel for any mistreatment of Arabs. Of course, those civil and human rights organizations are less interested in civil and human rights than they are in defaming Israel on the world stage and bringing about its speedy demise. The suffering of Jews – whether at the hands of the Arab terrorists they coddle and defend or at the hands of the Shabak – is less interesting to them.
PM Netanyahu, and others in government, have denied the allegations of torture, decried the attacks on the Shabak, and asserted that the interrogations have been “lawful.”
That is not the most encouraging statement, if only because “lawful” in Israel is not identical to what is “lawful” in, say, the United States. Israel routinely, and the United States, sporadically, have used “enhanced interrogation techniques” on any number of Arab terrorist suspects over the years. But fair-minded, reasonable people should be able to distinguish between physical force used to extract information from terrorists about imminent or pending terrorist threats – and physical force used to extract confessions. The former saves lives. The latter? The latter ruins lives and debases the society that engages in those medieval practices.
As one of the Israeli attorneys put it last week, and notwithstanding the protestations of government officials, Israel has allegedly crossed the line that separates civilized countries from countries (he put it mildly) “that we would never want to be.”
Soon after the attack on the Arab family in Duma, Defense Minister Yaalon claimed that “we know who did it, we just don’t yet have the evidence.” That statement alone is jarring, as the only way the authorities could know who did it is with “evidence,” even the testimony provided by informants, either Jewish or Arab, or DNA evidence, or sightings of the criminals on the ubiquitous cameras in Israel. That, too, is evidence; whispered suspicions are not. And despite some indications that the crime might not have been committed by Jews – and it very well might have – the accusations against Jews do fit the narrative that sees right-wing settlers as homicidal, racist maniacs and Israel as an enlightened society that prosecutes its own when there is wrongdoing and is not reluctant to release convicted Arab terrorists to flaunt its “morality.”
If the first contention is false and disgraceful, the second is embarrassingly naïve if the motivation behind it is an attempt to win favorable plaudits from the “world community.” That is part of Israel’s persistent and futile effort to score world “public relations” points by mollifying Arabs and, in this case, persecuting Jews. But the only thing the “world” actually cares less about than Jews killing Arabs is Arabs killing Jews, and the effort to placate world opinion by finding Jews to scapegoat , by extracting confessions through torture, or by easing restrictions on Arab movements that have facilitated the most recent wave of terror is a fools’ errand and unworthy of a civilized society.
MK Betzalel Smotrich (Bayit Hayehudi) caused a stir last week, and was repudiated by his party leader, when he asserted that Jews in the current context cannot be “terrorists.” It’s a subtle, nuanced point that has much to commend it. Jews, r”l, can be murderers, thieves, and scoundrels but not “terrorists,” because terror transcends the immediate act and aims to engender fear – terror – among all potential victims. Thus, we must ask ourselves basic questions: are Arabs terrorized in the State of Israel? Are Arabs living in fear that their homes will be burnt or invaded and their families killed, or that their cars will be shot at on the roads? Are Arabs afraid to hire Jewish workers, lest their employees suddenly turn on them one fine day and try to murder them? Are Arabs afraid to walk the streets of Israel lest a random Jew stab them in the neck? Are Arabs afraid to stand at a bus stop or street corner lest a Jew ram them with his car?
The answer is “no,” to all of the above. Let’s get real: in the land of Israel today, only Jews are terrorized, not Arabs. The only fear Arabs have is that they will be killed trying to murder Jews, and I’m not even sure they fear that.
Those who have claimed that persecuting and then prosecuting the Duma suspects will save lives because otherwise Arab terror will be emboldened are… well, they are not really paying attention to current events. Anyone who believes that Arab terror – in Israel or anywhere in the world – can be “provoked” should not be allowed anywhere near the reins of power or influence. It is a risible notion.
Even worse, this case could be pronounced “solved” as a result of confessions allegedly extracted under torture. This is exactly what happened to Jews during the Middle Ages and thereafter, in the Inquisition and during other dark periods of our history: Jews forced to confess to crimes to which they did not commit. No confession extracted through torture should have any credibility, and every civilized judicial system deems those confessions inadmissible. No civilized society should extract confessions or otherwise fabricate evidence even to convict the guilty. It should be noted that Jewish law bars the use of any confession, period. And the ignominy is exacerbated by the reality that the suspects allegedly tortured were primarily minors – children, teenagers.
Despite all the protestations, this episode has tarnished Israel’s image, and the brutality alleged has been so shocking that it has stunned most Jews into an embarrassed silence. That too is shameful.
If indeed Jews are responsible, r”l, then it is a low point in modern Jewish history, and highlights, among other things, the detrimental consequences of growing up in an environment in which terrorist attacks, sudden death, and grievous injury are daily realities. That is not normal, and a failure of successive governments. Of course, even if that were true, the Torah still prohibits acting upon those aggressive impulses, and nothing excuses the wanton murder of innocent people. It cannot be emphasized enough that the murder in Duma was a dastardly crime, and whoever committed it should be prosecuted to the full extent of the law and punished accordingly, Jew or Arab.
But prosecutions require evidence lawfully obtained, and the epitome of tainted evidence is the forced confession. The preservation of a civilized society depends on the execution of civilized laws, and on judges who will enforce those civilized laws, not judges who will whitewash the alleged criminal misbehavior of the authorities and turned a blind eye to alleged abuse of minors.
And here’s something that we all know. As sad as it is for the victims, and as frustrating as it is for the society of good and decent people, sometimes the guilty get away with their crimes. Famously, OJ Simpson beat two murder raps; certainly LAPD would have built an even stronger case had he “confessed.” Sometimes murderers are not caught. It happens more often than people think. Sometimes those who are guilty as sin are acquitted by juries. Nazis by and large got away with the unspeakable atrocities they committed against the Jewish people. And, sometimes murderers are caught and then – is it really possible? – released in a prisoner exchange to taunt the families of their victims and plot new terrorist acts.
It is immensely frustrating, but that is when the “rule of law” as a concept and value – not as a hackneyed cliché – must be actualized. To state that “we know who did it but we have no evidence,” so we will then go about and fabricate evidence, is the stock-in-trade of third world dictatorships and totalitarian societies. To beat confessions out of people (allegedly) is vigilante justice, not real justice.
Fortunately, there is a G-d, and that G-d finds ways to punish those who commit crimes without witnesses or evidence. So we are taught. That principle applies to alleged criminals as much as to those who allegedly torture people they suspect are criminals.
May G-d have mercy that no innocent people have to suffer because of the dishonorable conduct of the few. I hope the allegations against the incarcerated are untrue and the allegations against the Shabak are untrue. And may we merit living in an era in which the security forces of Israel fight their real enemies, that those enemies are finally subdued, and that all Jews return to service of G-d, love of Torah, fulfillment of mitzvot, and love of Am Yisrael.