Parashat Shof'tim

Deuteronomy 16:18-21:9
September 6, 2008 / 6 Elul 5768

This week’s commentary was written by Rabbi Mychal Springer, associate dean of The Rabbinical School, JTS.

Next week we mark the seventh anniversary of the 9/11 attacks. The number seven has biblical weight to it: seven days of creation, seven years of the shemitah cycle. Looking back over seven years has a power to it as well.

As an eyewitness to the burning of the first tower, I still have visceral reactions to the anniversary. I remember that, prior to 9/11, I used to walk around New York City with a sense of safety. This past weekend, as I watched my husband and daughter kayak joyfully in the Hudson River, I wondered if the experts on disaster preparedness still recommend that we buy inflatable boats as the best way of getting off the island, just in case. I don’t doubt that there are those who are plotting the next attack.

Certainly I feel fear and a desire to be protected, and I want to protect my children. But as I grapple with this complicated war of terror that erupted on 9/11, I find that the words of this week’s parashah have great wisdom to guide us:

You shall appoint magistrates and officials for your tribes, in all the settlements that the Lord your God is giving you, and they shall govern the people with due justice (mishpat tzedek). You shall not judge unfairly: you shall show no partiality; you shall not take bribes, for bribes blind the eyes of the discerning and upset the plea of the just. Justice, justice shall you pursue, that you may thrive and occupy the land that the Lord your God is giving you. (Deut. 16:18-20)

Justice. Those who perpetrated the acts of terror should be brought to justice, and those who are involved in attempting the next attacks should be brought to justice. As the Israelites prepare to enter the land, they need to set up a legal system which will function according to the highest standards. Civilization and justice must be intertwined, yet the absolute justice that is intended in the repeated “justice, justice shall you pursue” is very hard for human beings to achieve.

I approach this anniversary of 9/11 having just read Jonathan Mahler’s recently published The Challenge: Hamdan v. Rumsfeld and the Fight Over Presidential Power. Mahler’s powerful book lays out the amazing legal story of Salim Hamdan, Osama bin Laden’s Yemeni driver, who was captured in Afghanistan in November 2001 and transferred to Guantanamo Bay.

Hamdan’s Navy lawyer, Charles Swift, joined forces with Neal Katyal, a Georgetown law professor, and a good number of lawyers and law students who worked tirelessly behind the scenes, and they demonstrated—ultimately in front of the Supreme Court—that the military tribunal which was set to hear Hamdan’s case was illegal. The book forces its readers to struggle with issues of justice on a profound level. While those who created the tribunals believed that they were just, Swift and Katyal were deeply disturbed by the way the tribunals were set up by the executive branch without proper balance of power. Where there is no true accountability, there is no justice. Justice demands that we don’t assume the best about people’s intentions. We make sure that anyone who has power does not have all the power, so that the temptation to overstep can be held in check. Our parashah conveys this powerfully when we are taught: “A person shall be put to death only on the testimony of two or more witnesses; he must not be put to death on the testimony of a single witness” (Deut. 17:6). If we put a single person in the position of determining the fate of another, then we create an untenable temptation for false witnessing. If we become naïve about the real temptation to misuse power, then we have compromised our ability to assure that full justice will be done.

It is not easy to step back from the drama of being attacked and offer our enemies the greatest protections that our country has to offer.

Certainly the Jewish tradition makes distinctions between civilian justice and justice when we are at war. In our very parashah, the scenario of what is just when we are at war arises in chapter 20, when we are commanded to give those people we are about to attack a chance to come to terms of peace so that they can avoid being attacked. The peaceful solution is that they “shall serve you at forced labor” (Deut. 20:11). Even when faced with the enemy, with emotions running high, there is a desire to spare life and create a livable compromise. So, too, The Challenge does not argue that those who have been detained in the war on terror should be treated the same way we would treat civilians, but it does argue that our understanding of ourselves and our culture depends deeply on how we treat those over whom we have power.  “Tzedek, tzedek tirdoph” (Justice, justice shall you pursue) has a clarity and a forcefulness which pushes us to work hard, especially in times of complexity. Ultimately, a passion for tzedek is the path which offers each of us the greatest protection.

The publication and distribution of the JTS Commentary are made possible by a generous grant from Rita Dee and Harold (z”l) Hassenfeld.