Rabbi Janet Marder

November 27, 2009

Redeeming the Captives

What was I thankful for this year at the holiday table? I was thankful that we were gathering at my sister’s house and not mine, for she is kind enough and brave enough to host all 29 members of our family each year.  I was thankful that my brother-in-law grilled some salmon for the non-meat eaters, so we had protein to eat and didn’t have to overdose on that delicious sweet potato casserole with marshmallows. I was thankful that my mom was well enough to travel after her back surgery, so that she and my dad could drive up from southern California . I was thankful that my aunt Barbara and her beloved Mort flew in from New York .  I was glad that all 13 of the cousins, who range in age from 26 to 5, get along so well with each other. Mostly I was thankful to be together with the people I love. Thanksgiving is not the same when you’re far from family and home.

This Thanksgiving I thought especially of someone who is far away from those he loves and is longing to come home. He is on my mind often – I keep a poster of him in my window, so I can look at his face every day and remember where he is. In June 2006 Gilad Shalit, an Israeli soldier, 19 years old, was seized by Hamas in a cross-border raid. He has been imprisoned in Gaza ever since, for the past three and a half years. Several weeks ago Israel released 20 Palestinian women from its jails in exchange for a videotape of Gilad Shalit that proved he was still alive.

I’m thinking of him especially now because this week the news is full of rumors that Gilad is about to be freed from captivity. Negotiations are now apparently underway for his release, in exchange for the release of many Palestinian prisoners – perhaps a thousand or more – from Israeli jails. Supposedly on the list to be freed are Ahmad Saadat, a leader of the leftist Popular Front for the Liberation of Palestine who was convicted of ordering the assassination of an Israeli cabinet minister in 2001; and Marwan Barghouti, a Fatah leader who now serving five life sentences for killing Israeli civilians. Barghouti is often suggested as a potential successor to Mahmoud Abbas; his release could precipitate new power struggles between Hamas and Fatah.

Gilad’s parents, Noam and Aviva Shalit, are actively campaigning for the government to accept this deal and secure the release of their son. But the Israeli media and the Israeli street are consumed by debate over the morality of such an agreement. Is it ethical to trade hundreds and hundreds of prisoners, many of them terrorists convicted of murder, for the life of a single Israeli soldier?

As with so many thorny questions that vex us today, Jewish sages have been there before. For some 2000 years they have pondered the mitzvah of pidyon shevuyim, the religious obligation to redeem those held in captivity. They’ve asked themselves hard questions: to what extent are we obligated by this mitzvah? What price must we pay to secure the freedom of prisoners?

What does Jewish tradition have to say about the issue now facing the government of Israel : is it permissible to free jailed terrorists, including convicted murderers, in order to obtain the release of a hostage?

We first meet the mitzvah of pidyon shevuyim, redeeming the captives, early in the book of Genesis. In chapter 14, we see Abraham in the surprising role of a military hero: he fights to rescue his nephew, Lot , who has been taken prisoner in a war between Mesopotamian and Canaanite kings. Clearly, Abraham feels the instinctive family obligation to save his flesh and blood from danger. 

Seven biblical figures are known as prisoners, including Joseph, languishing in Pharaoh’s dungeon, and Samson, blinded by the Philistines, enslaved and made to turn the millstones like an ox. The Bible emphasizes the cruel sufferings endured by prisoners as if to make clear the imperative to release them from captivity. Indeed, God’s words to the people Israel in the book of Isaiah are compelling:

I, the LORD, have called you to righteousness;

….to be a covenant people

and a light to the nations,

to open eyes that are deprived of light,

to rescue prisoners from confinement

and to release from the dungeon those who sit in darkness [42:6-7].

The very mission of the Jewish people is to liberate those who are in chains. We are made in God’s image, and our Sages envisioned God as a liberator – the one who redeemed us from the house of bondage, the one we call in our daily prayers “matir asurim – the freer of captives.”

Redeeming prisoners was a subject much-discussed in Jewish legal texts, and these were not theoretical discussions. Jewish life has been precarious throughout the ages; kidnapping and captivity were real dangers in many periods.  The Talmud calls pidyon shevuyim as a “great mitzvah” (mitzvah rabbah) and says that captivity is worse than starvation and death [Bava Batra 8b] – perhaps because of the prolonged isolation and the loss of hope.

We all know the famous verse in Leviticus [19:16] that forbids us to stand by while our neighbor bleeds and commands us to intervene when we witness suffering; we know the Mishna that says that one who saves a single life is regarded as one who has saved an entire world [Mishnah Sanhedrin 5:5], and the Talmudic statement that “kol Yisrael arevim zeh ba-zeh – all Jews are responsible for one another” [Shev.39a]. We know that for Jews, pikuach nefesh, saving a life, is the highest and most sacred value.

So it would seem that the law of redeeming captives is a straightforward and absolute obligation: when a fellow Jew is in trouble, we must act on his or her behalf to preserve life. Maimonides articulates this mitzvah forcefully in his 12^th century law code, the Mishnah Torah, saying that redeeming captives is the most important of all mitzvot – it even takes precedence over feeding and clothing the poor – and whoever fails to ransom a captive transgresses the commandments “do not harden your heart” and “you shall love your neighbor as yourself [Hilchot Matnot Aniyim – Laws of Gifts to the Poor, chapter 8].

The Shulchan Aruch, the primary law code of the Middle Ages, goes even farther, saying: “There is no commandment greater than the freeing of captives.”  Even money that has been collected for building a synagogue may be diverted in order to ransom captives. Indeed, one who delays in ransoming a captive is considered like a murderer  [Yoreh De’ah 252, “The Laws of Tzedaka”]. 

But this is not the last word on the subject. Consider the following statement in the Mishnah [Gittin 4:6] “Captives may not be ransomed in excess of their actual worth, on account of tikkun olam.” Now, tikkun olam is not used here in its modern sense, to mean “repairing the world” or an act of social justice. Here “tikkun olam” means something like “for the sake of the general welfare” or “for the public good.”

So what does the Mishna say? It says that Jewish communities are not permitted to pay excessive ransom for the release of a prisoner – they can only pay the “going rate,” whatever that might happen to be at the time. (In Mishnaic times it was the price paid to purchase a slave.)

The Gemara [Bavli Gittin 45a] asks why the Mishna lays down this rule, and gives two possible reasons: First, to prevent the impoverishment of the community through paying exorbitant sums; and second, “that they not be encouraged to capture more” – in other words, so as not to give kidnappers an incentive to take new prisoners and demand higher and higher ransoms.

So the Mishna’s statement is very clear: redeeming captives is a compelling obligation, but there is a limit to how far the community can go and the price it can pay. Despite the boundaries set down in this law, the Talmud and Midrash are full of stories about how seriously the Sages took the mitzvah of redeeming captives. Acting as agents of the community, they often traveled long distances to ransom Jews who had been taken prisoner, and sometimes they paid exorbitant ransoms, especially when a scholar was in captivity. Many Jewish communities in Talmudic and medieval times set up charitable funds specifically for ransoming prisoners, raised through voluntary donations and mandatory assessments.

What about a case in which the life of the prisoner is in imminent danger – that is, the captors threaten to murder him if they do not receive the ransom payment? Here traditional authorities are divided: some argue that under these circumstances it is permissible to pay whatever is needed, because a life is at stake; while others contend that even when life is in danger, it  is forbidden to pay excessive ransom out of consideration for the general welfare, for it will simply lead to increased abductions and greater danger to the community [see Tosafot to Gittin 58a].

So there is a deep tension in the traditional sources between the head and the heart; between the predicament of the individual and the danger to the public; between the compelling call to save a fellow Jew who is in desperate need, and the rational knowledge that your very desperation can lead you to take unwise steps.

In some ways, what made Jewish communities strong also made them particularly vulnerable. Jewish loyalty and mutual solidarity, the Jewish reverence for every single life, were exploited by our enemies. Throughout history, the very readiness of Jewish communities to band together and raise significant sums to rescue their imprisoned co-religionists made them frequent targets of Gentile rulers, bandits and pirates.

A famous story from medieval history concerns Rabbi Meir ben Baruch of Rothenburg, the great sage and leader of 13^th century Germany . In 1286 he was imprisoned by Emperor Rudolph I, who demanded a huge ransom of 23,000 pounds of silver for his release. The Jews made extraordinary efforts to free their beloved teacher and agreed to pay what was asked. But according to tradition, Rabbi Meir issued a legal ruling ordering them not to pay, lest this lead to the capture of other Jewish leaders and further acts of extortion. Rabbi Meir remained in prison for seven more years, until his death. Finally, 14 years later, a wealthy Jew succeeded in ransoming his body for burial.

The struggle we find in traditional sources over the price that may be paid for redeeming captives has been hotly debated in Israel over the past few decades. Granted that our highest value is pikuach nefesh – preserving human life. What do you do when there is a conflict between the life of the captive and the lives of the community?

In 1985 the Israeli government, headed by Shimon Peres, reached a deal with the Popular Front for the Liberation of Palestine, and released 1,150 security prisoners in exchange for three Israeli prisoners captured during the Lebanon War.

Shlomo Goren, former Chief Rabbi of the State of Israel, was opposed to such prisoner exchanges. He argued, based on the Mishna I quoted before, that one must not redeem prisoners for more than they are worth. The safety of a few individuals cannot take precedence over the safety of the community. In addition to encouraging further abductions of soldiers, he said, releasing hundreds of terrorists back into society will certainly subject the people of Israel to further acts of terrorism. Our ultimate obligation must be to protect the public.

But Rabbi Hayyim David Halevi, who was then Chief Rabbi of Tel Aviv, issued a ruling that justified the government’s actions. He said that the traditional sources were clear in opposing exorbitant ransom payments, but that circumstances had changed since the founding of the State of Israel.

In former times the incentive for kidnapping Jews was financial. Now, he said, such abductions are the result of Palestinian nationalism, and Palestinians will continue to kidnap Jews regardless of what Israel does. So paying a high price for ransom will not lead to increased numbers of captives. Furthermore, he said, a new factor has now emerged: the morale of the Israeli army. If Israel ’s soldiers do not believe that their government will do everything possible to secure their release should they be taken captive by the enemy, they will prefer to retreat from battle rather than risk captivity.

Twenty-four years later the agonizing debate rages on. As rumors of a new prisoner swap circulate, the families of terror victims find themselves on both sides of this moral issue. Galina Michaltzvich was severely injured in a suicide bombing at the Park Hotel in Netanya during a Passover Seder in 2002. The terrorist who planned that attack, which killed 30 people and injured 140, is on the list for release.

“My parents only went through one night of uncertainty, while Gilad’s parents have lived like this for over three years,” says Galina. “Gilad should be released already, even for a heavy price…What's important is that he returns.”

But Rachel Friedman, whose sister, husband and three children were killed in a terror attack on the Sbarro pizza restaurant in Jerusalem , cannot accept the high cost of bringing Gilad home. The female terrorist who helped execute that 2001 attack is on the possible list of prisoners to be released. "The thought of her release is dreadful," said Friedman. “….I have nightmares that all these terrorists go back on the street to blow themselves up…..[W]e all want Gilad to return home. But how can we look into the eyes of the newly-bereaved families after the next terror attack occurs? Soldiers’ blood is not more valuable than that of terror victims.”

The debate cuts across political lines as well, with leftists and rightists on both sides of the issue. Gilad’s parents recently met with the Ashkenazi and Sephardi Chief Rabbis of Israel and received their tentative support for the prisoner exchange. Defense Minister Ehud Barak says that Israel has a “moral obligation” to bring Gilad home. Rabbi David Golinkin, a leader of the Conservative movement in Israel , wrote a detailed legal opinion opposing unbalanced prisoner swaps.

Last year Nadav Shragai, a right-wing columnist for Ha’Aretz, wrote a  piece attacking the Israeli government’s release of almost 200 prisoners, including several “with blood on their hands,” as a “goodwill gesture” to Palestinian Authority leader Mahmoud Abbas. His piece, entitled “Releasing Terrorists: New Victims Pay the Price,” cited government statistics that “50 percent of terrorists freed for any reason whatsoever returned to the path of terror, either as perpetrator, planner, or accomplice.” He reports that “an investigation by the Almagor Terror Victims Association….revealed that at least 30 of the terrorist attacks perpetrated since 2000 were committed by terrorists freed in deals with terror organizations. …. The bloody swath cut by these terrorists claimed the life of 177 persons, with many others wounded and made invalids.” 

Just a couple of many examples cited by Nadav Shragai: Dr. David Applebaum, head of the Department of Emergency Medicine at Shaarei Zedek Medical Center in Jerusalem, and his 20-year-old daughter Nava were murdered by a suicide bomber in September, 2003, when they went out for coffee at Café Hillel on Emek Refaim Street in central Jerusalem. Nava was to be married the next day. Their murderer had been freed from an Israeli prison in 2002, rearrested a few months later, and freed again on February 20, 2003. Seven months later he was sent by Hamas to commit a terror attack in the heart of Jerusalem .

Sheikh Ahmed Yasin was first arrested by Israel in 1983, after guns were seized in his home. He was sentenced to 13 years in prison for holding weapons, establishing a military organization and calling for the liquidation of the State of Israel, but was one of the 1,150 prisoners freed by Israel in the 1985 deal I mentioned before. In 1987 Yasin established and headed the terror organization Hamas.

Rabbi Levi Weiman-Kelman, on the political left, who serves the Progressive synagogue Kol Haneshama in Jerusalem , spoke about this issue of prisoner exchange a year ago on the High Holy Days. In addition to citing the traditional sources, he probed the complexity of the issue, reminding the congregation that the Torah commands us to treat our enemies humanely, even in wartime, and today nearly 10,000 Palestinians are held in Israeli jails. He said:

“I am not justifying the despicable acts some of them committed, God forbid. I cry for those murdered or injured by them. However, we must recognize that their families miss them and yearn for their return. From a political point of view, I believe there is no hope for a peace agreement as long as these prisoners remain in our jails.

“As long as Gilad Shalit is not free – Jews and Palestinians remain captive. This evening we must pray for his release not just from a place of concern for the individual but because freedom is a basic Jewish value.  We must strive for the release of all prisoners because of Tikkun Olam – repairing the world.”

From the other side of the political spectrum, listen to the words of Rabbi Stewart Weiss, father of Sgt. Ari Weiss, who fell in battle in 2002. Rabbi Weiss wrote in 2006, after the capture of two Israeli soldiers by Hezbollah, the act which led to the second Lebanon War.  In his article, published in the Jerusalem Post [July 13, 2006] under the title “Too High a Price,” he said this:

“Life is all about choices. Life in Israel , alas, is all about excruciatingly difficult choices. Terrorism  -- by design -- cruelly creates for its victims any number of no-win situations, precipitating the painful choices that flow from them….Perhaps the most complex dilemma we face is when IDF soldiers are kidnapped and taken to hostile territory, the situation that now confronts us with the abduction, first, of Gilad Shalit, and now, of Ehud Goldwasser and Eldad Regev. Invariably, the abductors seek to trade them for large numbers of Arab terrorists being kept in our jails, creating yet another impossible quandary.

“On the one hand, every life is precious beyond measure, a world unto itself, the highest of all values. Each of our soldiers is pure gold, worth hundreds, even thousands of the enemy. Furthermore, every soldier who goes into the field must know that his government will do whatever it takes to secure his release should he fall into enemy hands. The knowledge that we will relentlessly pursue his freedom and never abandon him to his fate strengthens his resolve to serve in a combat unit, and is one of the sacred, guiding principles of the IDF.

“Yet having said this, we must recognize that there is a limit to the price we are prepared to pay to redeem our boys. History has shown us that large numbers of freed Palestinian terrorists go on to kill again, leaving even more bloodshed in their wake.

“Murderers who train hard at their profession can hardly be expected to become accountants and history professors, even if they sign a document promising to be good little boys from now on. Moreover, paying too high a price and jacking up the market value of a captured soldier always serves to motivate the terror groups to kidnap even more soldiers, eager to trade them for jailed thugs of their own gang. This is precisely what has happened now, as one successful kidnapping was followed rapidly by another.”

Stewart Weiss went on to cite the medieval case of Rabbi Meir of Rothenburg, writing: “His heroic act of self-sacrifice sent the message that there are times when the price of freedom can be too high. By refusing to pay the blackmail that was demanded of his people, [Rabbi Meir] assured that never again would rabbinic leaders be taken hostage.”

And he concluded: “We all have a role to play in this latest drama: Our soldiers must know that, while drastic measures must be taken to secure their safety, the good of the nation will also be part of the equation. Even parents of kidnapped soldiers must face this terrible truth, though we cannot expect their minds to overrule the emotions of their hearts.

“As for our leaders, particularly the prime minister, they must understand that the head of government plays two primary roles: He is at once ‘Father of his Country’, and commander-in-chief. The former role requires him to be a national role model, caring, compassionate, wise and benevolent. The latter designation, the hat he must now wear, obliges him to unabashedly use every means at his disposal to protect our safety and safeguard our future, in a strong and secure Israel .

“And we, the citizens? We must grit our teeth once again and pray that the price of this latest war is not more than we all can bear.”

Two years after this article was published, the bodies of soldiers Goldwasser and Regev were returned to Israel by Hezbollah, in exchange for five Lebanese militants, including a man responsible for one of the most vicious terror attacks in Israeli history.

What is the meaning of “Jewish solidarity”? What does it mean to stand up in support of your fellow Jews? What does a Jewish state owe to its soldiers, the young people who risk their lives in defense of the country? What does it owe to its citizens? How can such a state best protect the lives of its people in the face of an implacable enemy?

None of us knows how history will judge the decisions of the government of Israel . None of us, I think, would want to stand in the Prime Minister’s place when such agonizing decisions are made. The dilemma, for American Jews, is to stay intimately connected and involved in this debate, while knowing that it is Israel ’s citizens, and not us, who will live with the consequences of their leaders’ acts.

As excruciating as this situation is, there is a blessing that resides in it. Medieval Jewish communities were victims of those who ruled over them, and all the power was in the hands of their enemies. Now Jews have a sovereign nation, diplomats and an army, instruments of power that allow them to protect the vulnerable when dealing with their enemies. They live in a democratic state in which painful moral and political questions are argued openly and vigorously.

For that we give thanks – even as we pray for the safe return of Gilad Shalit…and, someday, an end to hostilities, so that all who are imprisoned may go home in peace to their families.