Rules of Engagement

The debates in Tractate Sanhedrin to determine who is qualified to judge, setting conditions for incarceration, and the relative severity of various punishments provide a useful model for attempting to understand the American role in Iraq. The graphic shown above this paragraph is a portion of a visual representation published in today's NY Times to aid our understanding of the chronology of the killings of Iraqi civilians in Haditha on November 19, 2005. Two front-page articles raise issues related to the conduct of troops in Iraq that we can imagine the rabbis debating in principle and perhaps even with the specific known facts.

First, there is the question of whether the use of lethal force is permissible against those believed responsible for murder; in this case, by the planting of a roadside bomb. I believe that everyone would agree that if the marines believed that they were under attack and in immediate danger, the use of lethal force would be justified. Legally, the marines would be entitled to protect themselves under their own officially sanctioned rules of engagement. Some rabbis might suggest that if they were certain that their targets were attacking them, they were obliged to shoot to save themselves, but that they were first obliged to be certain that their targets were indeed attacking them. (In this case, if the marines did in fact share the certainty that they were under a sustained attack by their targets, they were mistaken, since their targets turned out to be innocent civilians. Nevertheless, their understanding of the situation at the moment they fired their weapons is the sole determining factor of their guilt or innocence.)

Second, there is the question of the responsibility of the governing authorities who establish the official rules of engagement and provide the only training and resources the marines receive before being handed weapons and placed in the line of fire. These marines had previously been stationed in Falluja, where the areas they patrolled had been cleared of civilians, and house-to-house fighting was the norm. Marines were trained in a technique called clearing by fire. In the Times article an unidentified marine describes the technique: "You stick the weapon around and clear the room," he said. "It's called prepping the room."

Since Haditha, unlike Falluja, had a substantial civilian population, the governing authorities did provide training between those two postings in how to protect civilians during combat. We need to know if the training included testing (or some other form of evaluation) and whether those who did not pass were held back. The soldier quoted in the last paragraph served in both Falluja and Haditha, and his last comment suggests that the training was ineffective: "You've got to do whatever it takes to get home. If it takes clearing by fire where there's civilians, that's it." The last sentence, which fails to meet the rabbinic standard prohibiting the destruction of innocent lives to save oneself, also belies the marines mission: Their role is to protect the civilians by putting themselves in harm's way. If the unidentified marine quoted here is representative, they understand their mission as "to do whatever it takes to get home."

As Congress (the closest deliberative body we have to a Sanhedrin in this sorry mess) debates whether we should remain in Iraq, they should also be defining what our goal is moving forward, and whether or not it includes putting the lives of our soldiers at risk to provide peace, security and freedom for Iraqi civilians. Moreover, we all need to come to terms with the consequences of failing to live up to our own highest standards. Whether or not the marines believed they were defending themselves or were caught up in an adrenaline and testosterone intoxicated vengeful rage and flaying out destructively with no clear target, the official account "that 15 Iraqi civilians had been killed in a bombing . . . and that marines had killed eight insurgents"-- obviously false and self-serving statements that can only fuel the fires of hostility and mistrust among the Iraqis we deployed to protect-- has never been retracted. How can anyone respect or trust us when we let these falsehoods stand? This failure to acknowledge our responsibility does more long-term damage than the unfortunate incident it attempts to conceal.

Flames and Warrants

"Keeper of the Klezmer Flame"

"Basically it's what musicians would call a fake book." (from NY Times, June 16, 2006)

It was reported in the New York Times today that German Goldenshteyn had a heart attack while fishing on Hempstead Lake on Long Island and died. For someone as besotted as I am by the oral tradition, it was most significant to read that, when he arrived in the United States in 1994, "he literally carried the . . . tradition with him in the form of handwritten notebooks filled with hundreds of klezmer tunes, many previously undocumented." [emphasis added]

It was from such notebooks that the earliest rabbis created the Talmud. Without the informal jottings for strictly personal use, there would have been no record of the teachings that became the foundation of Rabbinic Judaism. Goldenshteyn's life, his memory, formed the blessing that reminds us that what we hold onto during our lifetimes by writing them down, preserve memories that take on a life of their own.

As his friend Michael Albert said in the Times, "Basically, it's what musicians would call a fake book." For Goldenshteyn, "The primary purpose wasn't to preserve Jewish or Moldavian culture, but mainly so that the band would have more repertoire." The Talmud is, in this sense, a fake book, too.



The phrase "Justice Scalia surveyed changes in the legal landscape" should be as startling as the notion of Shammai ruling leniently. Nevertheless, Judge Scalia only strayed from his customary originalist perspective to be able to rule stringently in relation to the exclusionary rule. He is like the rabbi who ruled against the argument of a heavenly voice when it contradicted the majority but accepted it as proof when it confirmed his opinion.

Where others might see unreasonable search as a strong constitutional principle, this judge dismisses it as no more than "the right not to be intruded upon in one's nightclothes." (One would think an originalist would realize that the founding fathers, whose sleeping shirts concealed all, protecting one completely from immodest exposure, must have had something broader in mind.)

The police, in this case, had a warrant but failed to knock before entering. Hillel would have conceded Justice Scalia's point that the exclusionary rule is a heavy hammer to wield on a technicality but would have persisted in wielding it to protect the dignity and privacy of the accused. Scalia argued that the exclusionary rule was implemented to discourage constitutional violations at a time when law enforcers were not trained to respect newly articulated civil rights but that times are different and these discouragements are no longer needed.

I tremble at the prospect of how he will rule when presented with cases in which the government neither knocked nor had a warrant. Will the former originalist dismiss warrants as a transitional tool no longer needed in an age when Commanders-in-Chief are Deciders who no longer require a constitution to guide them?