No Winners in the Torat Hamelech Controversy

About twenty years ago, I publicly debated a rabbi associated with the circles around Rabbi Zvi Yehuda Kook at the Orthodox Union’s Israel Center, on the topic “Vengeance – Divine or Human?” As the debate went on, I found myself increasingly shocked by his willingness to rely on quotations pulled from the aggadata sections of the Torah to reach legal conclusions, which, if implemented, would have immense implications for Jews around the world, and his confidence that we live in an era in which Jews can say and do whatever they want in the Land of Israel without fear of how those words and actions will be received by the gentile world.

I have not read Torat Hamelech, and cannot comment on its contents. But Rabbi Shalom Yosef Elyashiv, the most prominent living halachic decisor, has condemned the work on for reasons similar to those that shocked me in that long ago debate – it places Jews around the world in danger. And Rabbi Zalman Nechemiah Goldberg, the son-in-law of the late halachic giant Rabbi Shlomo Zalman Auerbach, withdrew his letter of approbation from the book because of “certain conclusions that are not halachically correct” and others that defy common sense.

At the same time, I have difficulty conceiving what could have led Deputy State Prosecutor Shai Nitzan, who runs a unit within the state prosecutor’s office exclusively focused on the settler community, and the police to take the extraordinary step of seizing printed copies of Torat Hamelech and then summoning for questioning Rabbis Dov Lior and Yaakov Yosef, who had given letters of approbation to the work.

My questions for Nitzan are both at the level of legal theory and tactics. First, the theoretical: Under what, if any, circumstances may the Torah itself be subjected to police investigation for ideas that do not conform to the current standards of political correctness. That possibility is not far-fetched. References to the Torah’s prohibition on male homosexual relations could land one afoul of university speech codes at some of America’s more prestigious universities. Does the Torah’s injunction to wipe out the memory of Amalek make it “a racist book” or “material that incites to violence,” the possession of which is forbidden? The same question applies to the classic halachic codifications of the relevant halachic material from the Talmud.

And if the Torah and Codes are not proscribed, why would a work that purports to be based upon them be proscribed? The questionable validity of conclusions drawn from classical Torah sources cannot change Torat Hamelech‘s legal status, for that would impermissibly entangle the secular legal system in religious issues and debates.

Any infringement on freedom of speech traditionally requires a clear demonstration of a high degree of danger from the speech in question – akin to shouting “Fire” in a crowded theater. And the bar is placed even higher when the infringement on freedom of speech is coupled with infringement on the free exercise of religion, especially where only the expression of opinions, not action, is involved.

Due to the murky nature of the legal theories of the prosecution, it is hard to know the precise focus of their objections to Torat Hamelech. In the eyes of the book’s authors, one of the key issues is under what circumstances should lives of Israeli soldiers be placed in greater danger in order to reduce danger to enemy civilians. That is certainly an issue of great import that should be a subject of vigorous national debate. It can be approached from a variety of perspectives, both philosophical and theological. About two months ago, Professor Asa Kasher, the principal draftsman of the IDF code of arms, argued at a BESA Center Conference on Democracies and the Right of Self-Defense, that when a state imposes compulsory military service on citizens it implicitly agrees not to subject those citizens-soldiers to greater danger in order to protect enemy civilians. On that basis, he criticized the loss of 13 reservists during Operation Defensive Shield, who were killed searching a booby-trapped house for Palestinian civilians.

Why should Kasher’s reliance on general philosophical principles to critique aspects of current IDF practice be more valid than the reliance of the authors of Torat Hamelech on traditional Jewish texts to the same end? Both critiques jive with the historical practice of all nations to place a greater value on the lives of their own citizens. The Allied carpet bombing of Dresden and Berlin, at the end of World War II, was specifically justified as a means of securing German surrender and an earlier end to the war. America dropped atom bombs on Nagasaki and Hiroshima to avoid the projected loss of a million or more troops in an invasion of Japan.

ONE OF THE ENDURING THREATS to Israeli democracy is the widespread perception that the justice system employs two sets of standards, depending on what side of the religious or right-left divide one falls. The state prosecutor’s office would be a lot less vulnerable to criticism for its handling of Torat Hamelech if it had ever attempted to enunciate a coherent theory of what constitutes incitement or forbidden racist speech. Why, for instance, did Tatanya Susskind spend two years in jail for posting an offensive cartoon of Mohammad as a pig – an act of symbolic speech – while no Muslim preacher has ever been prosecuted for commonplace references to Jews as “descendants of pigs and monkeys”?

Within the last two weeks, Judd Ne’eman, a film professor at Tel Aviv University, called for a civil war against the Right. Technion physics professor Oded Regev quickly signed on, writing, “[T]he only way to overcome the religious extremists is through organized violence, through launching a war, in the full meaning of the term.” Don’t expect to see either subjected to a police investigation any time in the near future.

Perhaps the operative theory of Shai Nitzan’s prosecutorial group is that only right-wingers or religious settlers would ever act upon their words, but left-wingers are simply waxing metaphoric. As dubious as that theory is, it clearly is has no applicability to Islamists. Yet Sheikh Raed Salah, head of the northern branch of the Islamic Movement in Israel, was never questioned for encouraging Israeli Arab students to become suicide bombers in a speech at Haifa University.

FROM A TACTICAL PERSPECTIVE as well, it is hard to figure out Nitzan’s thinking in the Torat Hamelech case, unless he merely seeks to make life miserable for the authors or wants to reinforce the popular image of West Bank settlers as blood-thirsty fanatics. If he was concerned about Israel’s world image, certainly he has done more to harm that image by all the publicity surrounding his prosecution of Torat Hamelech and the selective quotations from the work.

It would have been far wiser to allow the national religious world, which is most directly embarrassed by Torat Hamelech, to deal with the book itself. That process was already in full swing. Rabbi Ariel Finkelstein of Yeshivat Ahavat Yisrael in Netivot penned a point-by-point refutation of the work’s halachic conclusions, about which Rabbi Yaakov Ariel, head of the hesder yeshiva in Ramat Gan, wrote: “He has succeeded in refuting the main arguments of the authors . . . beginning with their outrageous, prejudiced presumption that gentile blood is cheap, and ending with their alleged proofs and supports from halachic sources, which were interpreted tendentiously and erroneously.”

By dragging respected rabbis in for questioning based on their letters of approbation, Nitzan and the police only distracted the national religious world from the task at hand and elevated those rabbis to the role of victims. One need not claim an exemption from police questioning for rabbis to ask: What could possibly have been gained from such questioning? The police were presumably not intending to engage Rabbi Dov Lior or Rabbi Yaakov Yosef in halachic pilpul, something both beyond their competence and the realm of legitimate inquiry. There were no factual issues at stake. Both the rabbi’s statements and their context were established. And they had no light to shine on the foreseeable impact of their words. In those circumstances, hauling them to the police station was nothing but a humiliation ritual.

Whether out of an absence of serious thought about either the theoretical or tactical issues involved, or from a deep-seated animus to certain population groups, deputy state prosecutor Shai Nitzan has rendered deep, and unnecessary, damage to our already frayed social fabric.

This article first appeared in the Jerusalem Post, July 15.