Think Again: ‘Torat Hamelech’ controversy

By detaining rabbis over the book, law enforcement officials caused damage to Israel’s social fabric.

By
July 15, 2011 16:51
POLICE DISPERSE protesters during a demonstration

Torat Hamelech riots 311. (photo credit: Reuters)

 
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About 20 years ago, I debated a rabbi associated with 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 aggadic 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 Israel without fear of how those words and actions will be perceived by the gentile world.

I have not read Torah Hamelech, and cannot comment on its contents. But Rabbi Shalom Yosef Elyashiv, the most prominent living halachic decisor, has condemned the work for reasons similar to those that shocked me in that long-ago debate – it places Jews around the world in danger. And Rabbi Zalman Nehemiah Goldberg, 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 that deals with the settler community) and the police to take the extraordinary step of seizing printed copies of Torat Hamelech and then summoning rabbis Dov Lior and Ya’acov Yosef (who had given letters of approbation to the work) for questioning.

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 be subjected to police investigation for ideas that do not conform to current standards of political correctness? That possibility is not far-fetched. Does the Torah’s injunction to wipe out even the memory of Amalek make it “a racist book,” or “material that incites to violence”? And if the Torah is not proscribed, why would a work based on it be proscribed? Any infringement on freedom of speech traditionally requires a clear 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 is involved.

Due to the murky legal theories of the prosecution, it’s hard to know the precise focus of the 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. About two months ago, Prof.

Asa Kasher, 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 its citizens, it implicitly agrees not to subject those citizens-soldiers to even greater danger in order to protect enemy 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? Both critiques jibe 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. America dropped atom bombs on Nagasaki and Hiroshima to avoid the projected loss of a million or more troops in a conventional invasion of the Japanese mainland.



ONE OF the enduring threats to Israeli democracy is the widespread perception that the justice system employs two 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 racist speech. Why, for instance, did Tatiana Susskind spend two years in jail for posting an offensive cartoon of Muhammad as a pig – merely symbolic speech – while no Muslim preacher has been prosecuted for overt references to Jews as “descendants of pigs and monkeys”? Within the past 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 receive a police investigation 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 on their words, while left-wingers are simply waxing metaphoric. As dubious as that theory is, it clearly has no applicability to Islamists. 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 the University of Haifa.

FROM A tactical perspective as well, it’s hard to figure out Nitzan’s thinking in the Torat Hamelech case, unless he merely seeks to make life miserable for the authors. If he was concerned about Israel’s world image, certainly he has harmed that image by all the publicity surrounding his prosecution of Torat Hamelech.

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 Ya’acov 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, Nitzan and the police only distracted the national religious world from the task at hand, and elevated those rabbis to the role of victims. What could possibly have been gained from such questioning? The police were presumably not intending to engage Rabbi Dov Lior or Rabbi Ya’acov Yosef in halachic pilpul – something both beyond their competence and the realm of legitimate inquiry. There were no factual issues at stake. And they had no light to shine on the foreseeable impact of their words. Under those circumstances, hauling them in to the police station was nothing but a humiliation ritual.

Deputy state prosecutor Shai Nitzan has inflicted deep, and unnecessary, damage to our already frayed social fabric.

The writer is director of Jewish Media Resources, has written a regular column in The Jerusalem Post Magazine since 1997, and is the author of eight biographies of modern Jewish leaders.

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