By Rabbi Carl M. Perkins:

Mercy to the Cruel and Cruelty to the Merciful
Parashat Bo (January 11, 2003)

"Don't be too righteous!" (Kohelet 7:16)

Resh Lakish taught, "Anyone who becomes merciful to the cruel will, in the end, become cruel to the merciful."

Midrash Zuta, Kohelet 7:16

A Court that puts to death once in seven years is called destructive.

Rabbi Eleazar ben Azariah said: Even once in seventy years!

Rabbi Tarfon and Rabbi Akiba said: Were we to sit on a Court, no one would ever be sentenced to death.

Rabban Shim'on ben Gamaliel said: But then they would only increase bloodshed in Israel.
M. Makkot 1:10

Once upon a time, a certain man, who was on his way from Babylonia to the Land of Israel, sat down at the side of the road to eat. He noticed two birds fighting with each other, until one killed the other. The victor then went and fetched an herb. It placed it on the mouth of the dead bird and brought it back to life. So the man took the herb, which had fallen from the bird, and set out for the Land of Israel to resurrect the dead.

Along the way, he saw a dead fox by the side of the road, and he said to himself, “It would be a good idea to try the herb on this fox.” He placed the herb on the fox’s mouth, and brought it back to life. When he arrived at the entrance to Tyre, he saw a dead lion by the side of the road, and he said to himself, “It would be a good idea to try the herb on this lion.” He placed the herb on the lion’s mouth, and brought it back to life. Immediately, the lion rose up and ate the man.

This bears out the popular saying: “Don’t be kind to the bad, and you won’t get hurt.”
Vayikra Rabbah 22:4; Tanhuma Hukkat #1

[Prepared Remarks]

Judaism is a compassionate religion.

This can be demonstrated in many ways. Consider the way in which Jewish criminal law functions.

First of all, we (our people, our faith, our tradition) don’t condemn people merely because they believe a certain way. We must always look to deeds rather than beliefs to determine whether a person is worthy of being punished.

Second, even if someone has acted badly, we don’t condemn him or her completely. We recognize that teshuvah is always possible, and we always remain open to it.

Third, even if someone has done something terrible, such as to commit murder, or some other capital crime, Jewish law is reluctant to impose the ultimate punishment. Although capital punishment is very much a part of rabbinic criminal law jurisprudence, I’m sure that many of us are aware that convicting someone of a capital crime and imposing the death penalty is almost impossible.

All the more reason why, when I happened to be studying a passage in Maimonides’ Code of Jewish Law (the Mishnah Torah) this past week (Laws of Courts, Chapter 11), I was surprised to read something very different.

The case of the “Meisit”—the person who entices others to embrace idolatry—is very different from ordinary criminal law cases.

Whereas in the case of ordinary criminal defendants, warning must be provided (in other words, they have to be informed that what they are about to do is not only against the law but will subject them to the death penalty), this is not the case with the Meisit. A Meisit’s actions can be witnessed by someone not seen by him—which is ordinarily insufficient, according to Jewish law, to obtain a conviction.

Ordinarily, if, after conviction, new evidence is produced that suggests that the condemned person may in fact have been convicted in error—and we’ve certainly seen many such cases here in this country in the past few years—then the court is obliged to consider that evidence. Even a convicted murderer is entitled to that consideration. Yet, not the Meisit. After a Meisit has been convicted, his rights to a re-trial are severely curtailed.

The court is less deferential to the Meisit even during the trial. Ordinarily, in Jewish law, the court itself has a duty to offer arguments on behalf of the defendant, but not in the case of the Meisit. Finally, there is less restriction on the qualifications for a judge who hears such a case. Ordinarily, judges must be known for their capacity for mercy as well as their capacity for fairness. But not those who are appointed to hear the case of a Meisit. Such judges need not be as merciful.

Why? Why does the Rambam distinguish the case of the Meisit from other capital cases?

Clearly, or so it seems to me, because the Meisit was seen as the most serious threat to society. Even more than the murderer, the Meisit sought to undermine the entire order of the society that Rambam believed in and was committed to.

The Rambam was only carrying out the spirit of the text in Deuteronomy, “v’lo takhos alav, v’lo takhmol alav,” “have no mercy or compassion upon him,” (13:9) because he believed that ultimately, this would result in God having mercy upon the people: “l’ma’an yashuv ado-shem me-kharon apo, v’natan l’cha rakhamim,”—“in order that God may turn away from His anger and show you compassion.” (Deut. 13:18).

Now, most of us—no, all of us today—are happy that, in this respect, at least, we no longer live in the world of the Rambam. I’m sure that we value, more than almost anything, our freedom of conscience. We would recoil from the notion that someone seeking to entice members of our society to become idolatrous should be treated so harshly.

And yet, my question for us to explore today is whether there are others who have risen to take the place of the Meisit, whether there are others who, in our society, play the same role: as representing the ultimate threat to our safety, our security, our well-being, and who therefore are—or we feel should be—treated differently.

I think so. It certainly seems to me that “the terrorist”—the fanatical, nihilistic, death-affirming warrior who willingly, brazenly, gladly destroys human life, including his own, in pursuit of his dream to destroy our society—plays that role.

After all, the terrorist is different, we realize, from the ordinary murderer. Ordinary murderers appear to value their own lives—unlike the terrorist. Ordinary murderers commit their crimes out of motives with which we can identify, which we might even see within ourselves: avarice, lust, jealousy, anger—unlike terrorists. Can any of us really imagine ourselves—however upset we might be -- commandeering a passenger plane and flying it into the World Trade Center?

And so we see terrorists as different, as perhaps less deserving of the considerations we give to ordinary criminals, much like the way that Rambam saw the Meisit as less deserving of the ordinary deference paid to defendants in a criminal courtroom.

The question is, how far does this go?

There are three distinct cases that came to my mind on the very day that I happened to be studying this text of the Rambam. We can ask ourselves the question, in each case, just how far should we go, in treating the terrorist differently from an ordinary criminal.

First, on the very day I studied this text, I had read in the New York Times that a jury that had convicted Al Quaeda terrorists of conspiring to blow up American embassies in East Africa had refrained from imposing the death penalty on them, notwithstanding “overwhelming” evidence of their guilt, because several jurors had felt that, whatever the circumstances—even for acts of international terrorism resulting in the deaths of hundreds of innocent civilians—the death penalty was inappropriate. That trial concluded on July 10, 2001. Would the jury have ruled differently were they to have considered the case after 9/11? Should they have? Should we apply different rules in determining whether or not to impose the death penalty on convicted terrorists?

Second, I had just read of the devastating twin suicide bombings in Tel Aviv that killed over twenty people and wounded over one hundred. James Carroll, in an important essay in the Boston Globe, described the exquisite cruelty of the attackers: “The timing of the two explosions was arranged to kill and maim in sequence so that, first, randomly chosen victims died unknowingly and then refuge seekers and rescuers died in full consciousness of the nightmare. The creative malevolence in this kind of calculation approaches the demonic.” Carroll went on to say, “If human beings have any claim to moral identity, we must be capable of drawing lines, of saying here and no further. Otherwise, we are like leaves in flowing water, drifting along toward whatever the future brings.”

How then should we treat those who cross those indelible lines? Do we consider suicide bombers in Israel to have crossed the line? And if so, what are the consequences of that, in terms of our politics, in terms of our participation in Israel advocacy, in terms of our support of measures which, were Israel to be facing ordinary enemies, we might condemn as harsh, but which in the current context we might see as reasonable acts of self-defense?

Third, just this past week we were reminded that America is really at war. Just the other day, an appeals court ruled that an American citizen who finds himself with an AK-47 rifle on the wrong side of a battlefield is not entitled to the kinds of protections against the use of force by the government that he would enjoy were he on Route 128 (with or without a rifle).

Have we internalized the consequences of being at war? Have we really absorbed the truth that, when and if war breaks out in Iraq, American men and women in uniform will be authorized to shoot to kill other men and women wearing different uniforms? The essence of war is permitting what is otherwise forbidden. Put aside whether the enemy combatants are Americans or not—though imagining them to be Americans makes the question more vivid: Do we appreciate that we have entered a new reality, when acts which would otherwise be deemed cold-blooded murder will be taking place daily and we will not only excuse such acts, we will applaud them?!

Let’s not kid ourselves: however pinpoint the bombing capabilities of the American air force, we will be killing civilians as well as soldiers when and if we go to war. Not targeting them, of course. After all, we’re not Al Quaeda or the Al Aksa Martyrs’ Brigade or Islamic Jihad, but civilians will die. Are we prepared to accept that consequence?

These are the three questions prompted by my study of Rambam. Since we cannot address all three, let’s take a look at the first one together: are there, or should there be, different rules for convicted terrorists? However we might feel about the morality of the death penalty, as put into law and implemented in this country (and, being in Massachusetts, I would assume that there are a fair number of opponents here today) should different rules apply in the case of convicted terrorists?

[Discussion of study sheet]

You may recall that earlier this morning we read of the tenth plague carried out against the Egyptians. It was different in kind from all nine preceding ones, for this alone meant death for its victims. This alone was irrevocable.

Let me conclude with a question:

What if we knew—as we’re supposed to assume, based on the context—that that plague was necessary to win the Israelites’ freedom? What if we knew that the Egyptians had blood on their hands, were evil, and wanted nothing more than to destroy the Jewish People? Does that warrant treating them differently from the way we might otherwise? Does that justify the tenth plague?