Rabbi Avraham A. Levitan Dr. Jacobs
The aim of this paper is to fully explore extralegal remedies for individuals who commit certain actions. Firstly, this principle in Jewish law will be established, discussed and then contrasted with the findings with the American criminal justice system; as defined in Supreme Court decisions, discussions at the founding of the United States, and journal articles. The primary focus will be on the great Jewish codifier of the 12th century, Maimonides, which in order to be incorporated holistically, will be examined in the context of other Talmudic commentators’ rabbis and codifiers of medieval times.
We find in the 14 volume code of Maimonides called the Mishna Torah, in the 11th volume entitled-“Nezikin”- (damages) in the section of laws entitled “Rotzeach Oshmiras Hanefesh” (murderers and guarding of life), writes in chapter two the following laws (the following translations of Maimonides is taken from Touger (1997).
Whenever a person kills a colleague with his hands – e.g., he strikes him with a sword or with a stone that can cause death, strangles him until he dies or burns him in fire – he should be executed by the court, for he himself has killed him.
But a person who hires a murderer to kill a colleague, one who sends his servants and they kill him, one who binds a colleague and leaves him before a lion or the like and the beast kills him, and a person who commits suicide are all considered to be shedders of blood; the sin of bloodshed is upon their hands, and they are liable for death at the hands of God. They are not, however, liable for execution by the court.
Which source indicates that this is the law? Genesis 9:6 states: “When a person sheds the blood of a man, by a man his blood shall be shed.” This refers to a person who kills a colleague by himself, without employing an agent.
The verse continues: “Of the blood of your own lives I will demand an account.” This refers to a person who commits suicide.
“From the hand of every wild beast will I demand an account” Ibid. 9:5 This refers to a person who places a person before a wild beast so that he will devour him.
“From the hand of a man, from the hand of one’s brother, will I demand an account for the soul of a man” ibid. This refers to a person who hires others to kill a colleague. In all of the three last instances, the verse uses the expression “will I demand an account,” indicating that their judgment is in heaven’s hands.
When a Jewish king desires to slay any of these murderers and the like – who are not liable for execution by the court – by virtue of his regal authority, in order to perfect society, he has the license. Similarly, if the court desires to execute them as a result of an immediate fiat, because this was required at the time, they have the license to do as they see fit.
If the king did not execute them, nor did the court deem the time as such to require strengthening the strictures against murder, it should nevertheless have the murderer beaten with severe blows – so that he is on the verge of death – and imprisoned, deprived and afflicted with all types of discomfort in order to strike fear and awe into the hearts of other wicked men, so that this death should not be a stumbling block and a snag for them, causing them to say: “Let me arrange to have my enemies killed the way so-and-so did, and I will not suffer the consequences.”
In Halacha 4 and 5 (which are the foundation for Maimonides opinion), Maimonides explicitly maintains that extralegal remedies are the exclusive jurisdiction of either the Beis Din or the King. Furthermore the reasons Maimonides gives for the Beis Din and King are wholly different from each other; a king may slay any of these murderers stemming from the kings regal (executive) power and in order to perfect society, however the Beis Din needs to decide that an immediate fiat exists and that extralegal action are required at the time.
It is necessary to discuss the central differences between the rights of kings and the rights of the Beis Din, and furthermore what the definitions of “in order to perfect society” and “as a result of an immediate fiat, because this was required at the time” are and how they apply.
In order to fully explore the above discussion, a different question must be dealt with first; why does Maimonides divide Halacha 5 from Halacha 4, why create a separate statute? The reasoning behind this question is as follows; in Halacha 4 Maimonides writes,
“When a Jewish king desires to slay any of these murderers and the like – who are not liable for execution by the court – by virtue of his regal authority, in order to perfect society, he has the license. Similarly, if the court desires to execute them as a result of an immediate fiat, because this was required at the time, they have the license to do as they see fit”.
Then continues in Halacha 5,
“If the king did not execute them, nor did the court deem the time as such to require strengthening the strictures against murder, it (the Beis Din) should nevertheless have the murderer beaten with severe blows etc …”
From the context it seemingly would be reasonable for one to maintain that if there is insufficient proof for the court to impose capital punishment on the murderer legally than the King has the right to impose capital punishment “in order to perfect society”, if there is no king or the king decides that he does not need to exercise his right, then the Beis Din only after ascertaining that an “immediate fiat exists and that the time requires them to act” only then do they have the license to impose capital punishment in an extralegal manner. However, if even the Beis Din cannot ascertain that an immediate fiat exists and that extralegal action is not required at the time then they have the responsibility “to have the murderer beaten with sever blows etc…”
However, Maimonides wants to reject this reading through his organization of the Halachos (statutes), in to Halacha 4 and Halacha 5. One possible reason, besides the actual organization, is that there still remains a fundamental question if the previously suggested reading is correct. Why does Maimonides in Halacha 5 say explicitly “that the Beis Din should nevertheless have the murderer beaten with severe blows etc …”, and not say that the Beis Din has the authority to do so rather than the imperative to do so? Does he not write in the previous Halacha that if an immediate fiat exists and the time demands extralegal action-which such punitive sanctions described in Halacha 5 definitely are- then the Beis Din has the authority to decide how to act in such circumstances?
Therefore a possible reading could be suggested in Maimonides Halachos, through which we will also answer the primary questions posed above; What are the central differences between the rights of kings and the rights of the Beis Din, and furthermore what are the definitions of “in order to perfect society” and “as a result of an immediate fiat, because this was required at the time”? And where do they apply?
The reading of Maimonides laws could be as follows, if one commits murder in such a way where one cannot legally be sanctioned with capital punishment, the King may sanction the individual with capital punishment extra-legally stemming from his responsibility of creating and maintaining a just society. In other words Maimonides maintains that in relation to sever crimes such as murder the king has the Halachic right to sanction such action extra-legally, if there is no recourse through the Beis Din, and if by not addressing the current state of affairs murders would become meaningless among the populace and therefore more common.
Maimonides continues, “however if the King does not exercise this executive power (or there is no King), the Beis Din can execute the murderers if there is an immediate fiat and extra-legal action is demanded by the time, just as Beis Din has the authority to act extra-legally when an immediate fiat exists and extra-legal action is demanded at times.
However, continues Maimonides in Halacha 5, if both the King and the Beis Din do not find a need to act extra-legally in a particular case (i.e. regarding a specific murder case), there is an imposed responsibility on Beis Din to create deterrents against possible future murderers; through,
“having the murderer beaten with severe blows – so that he is on the verge of death – and imprisoned, deprived and afflicted with all types of discomfort in order to strike fear and awe into the hearts of other wicked men, so that this death should not be a stumbling block and a snag for them, (which if no deterrent was created would) cause them to say: “Let me arrange to have my enemies killed the way so-and-so did, and I will not suffer the consequences.”
Maimonides emphasizes that his meticulous need for deterrents is only with regards to murders as he considers it the most severe crime. This can be seen in Chapter 4, Halacha 9:
“This measure is not taken with regard to other crimes punishable by execution by the court. If a defendant is liable for execution, he should be executed. If he is not liable for execution, he should be released.
Although there are other sins that are more serious than murder, they do not present as serious a danger to society as murder does. Even idol worship – and needless to say, incest or the violation of the Sabbath – are not considered as severe as murder. For these sins involve man’s relationship with God, while murder also involves man’s relationship with his fellow man.
Whoever commits this sin is an utterly wicked person. All the mitzvoth that he performs throughout his lifetime cannot outweigh this sin and save him from judgment. Thus, Proverbs 28:17 states: “A man weighed down with life’s blood will flee to the pit.”
Come and learn from the example of Ach’av King of Israel. He was an idolater so debased in his paganism that I Kings 21:25 says: “There was none like Ach’av who gave himself over to the performance of wickedness in the eyes of God.” And yet when his merits and sins were weighed in the presence of the Lord of spirits, there was no sin that warranted his destruction and was not counterbalanced by a positive quality, except the blood of Navot.
Thus, it is written Ibid. 22:21, in the description of the prophecy of Ach’av’s death in battle: “And the spirit came and stood before God.” Our Sages commented:: “This is the spirit of Navot.” And God told the spirit (Ibid.:2): “You will persuade him and prevail.”
Now this wicked man Ach’av did not actually kill his victim with his own hands; he merely brought about his death. How much more so this condemnation should apply when a person kills another with his own hands.”
This is possibly similar to Steinmetz (2008) where she writes,
“…in the story of the first homicide, Cain’s killing of Abel. While G-d describes the effect of this murder as a violation of the land that results in an alienation of the human being from the land (Gen. 4:10-12), Cain elaborates further on the consequences of his deed: he has been banished from the face of the earth, he will be hidden from G-d’s face, and, finally, “anyone who finds me will kill me” (Gen. 4:14). As in the Numbers passage, homicide is portrayed here as an act that has an effect on the human being’s relationship with the land, with G-D, and with fellow human beings” (p.56).
After the above explanation of more detailed readings of these two Halachos (statutes), but before Maimonides’ opinion is contrasted with the American criminal justice system, two things remain to be clarified; 1) definition of the powers of the Beis Din to act extra-legally, and 2) proof that the above explanation is a plausible reading in Maimonides.
In defining the powers of Beis Din to act extra-legally, it is useful to review Maimonides code for what he writes and then to discuss his sources. In his 14th volume named Shoftim (Magistrates) in the laws entitled Sanhedrin (Jurisprudence), in chapter 24 Maimonides writes the following,
A court has the authority to administer lashes to a person who is not required to receive lashes and to execute a person who is not liable to be executed. This license was not granted to overstep the words of the Torah, but rather to create a fence around the words of the Torah. When the court sees that the people have broken the accepted norms with regard to a matter, they may establish safeguards to strengthen the matter according to what appears necessary to them. All the above applies with regard to establishing directives for the immediate time, and not with regard to the establishment of Halacha for all time.
An incident occurred where they had a man lashed for engaging in relations with his wife under a tree. And an incident occurred concerning a person who rode on a horse on the Sabbath in the era of the Greeks and they brought him to the court and had him stoned to death. And an incident occurred and Shimon Ben Shetach hung 80 women on one day in Ashkelon. All of the required processes of questioning, cross-examination, and warnings were not followed, nor was the testimony unequivocal. Instead, their execution was a directive for that immediate time according to what he perceived as necessary.”
It is quite clear from the above passage that the power of Beis Din to act extra-legally pertains to upholding the laws of the Torah even the laws and decrees of the rabbis of the Oral tradition. To squash a rebellion against Torah and Jewish religious practice the Beis Din has the authority, according to Maimonides to act extra-legally. I believe this is emphasized through the examples he brings in the Halacha where he writes,
“An incident occurred where they had a man lashed for engaging in relations with his wife under a tree. And an incident occurred concerning a person who rode on a horse on the Sabbath in the era of the Greeks and they brought him to the court and had him stoned to death. And an incident occurred and Shimon Ben Shetach hung 80 women on one day in Ashkelon.”
These examples that Maimonides brings in this Halacha are found in two places in the Talmud, 1) Tractate Sanhedrin p. 46a, and 2) Tractate Yevamos p. 90b (all translations are taken from Epstien (1961). The Talmud in Sanhedrin brings the following in the midst of a discussion regarding a Mishna. The Mishna relates an argument between Rabbi Eliezer and the Sages regarding whether the corpse of a woman is hung on a tree after she is stoned through Beis Din, Rabbi Eliezer is of the opinion that a woman is hanged and the Sages are of the opinion that she is not hanged; in response to the sages’ opinion the Mishna brings that Rabbi Eliezer replies “But did not Shimon ben Shetach hang women at Ashkelon?”(Which would prove a precedent for his opinion that women are hung after stoning,) to which the sages’ replied “: On that occasion he hanged eighty women, notwithstanding that two malefactors must not (procedurally) be tried on the same day” (and therefore a proof for legal procedure cannot be derived from extra-legal actions). The great eleventh century commentator on the Talmud, Rashi (Rabbi Shlomo Yitzchaki), comments on this Mishna, that the reason for the extra-legal actions of Rabbi Shimon ben Shetach was because in his time there was a cult of Jewish women who practiced black-magic and witchcraft and because of an immediate fiat and the time required that action be taken to stop the new movement he was able to act extra-legally, an judge them all in one day and execute them all in one day to utterly break the group.
Discussing the Mishna the Talmud relates the following, Sanhedrin 46a (the following is also found verbatim in Yevamos 90b);
“It has been taught: R. Eliezer b. Jacob said: I have heard (from my teachers, Rashi) that the Beis Din may, [when necessary,] impose flagellation and pronounce [capital] sentences even where not [warranted] by the Torah; yet not with the intention of disregarding the Torah but [on the contrary] in order to safeguard it (because the time demands it). It once happened that a man rode a horse on the Sabbath in the Greek period and he was brought before the Court and stoned, not because he was liable thereto (because it is only a prohibition of the Rabbis, Rashi), but because it was [practically] required by the times. Again it happened that a man once had intercourse with his wife under a fig tree. He was brought before the Beis Din and flogged, not because he merited it, but because the times required it.”
With the above understanding, it is clear that the difference between the authority of the King and that of the Beis Din in Maimonides view is that the authority of the courts encompasses more laws (of Mitzvos) yet needs a stronger burden of proof (an immediate fiat and the time requires immediate decisive action); whereas the kings’ authority applies specifically to civil crimes like murder and does not need to meet such a strong burden of proof (his judgment of perfecting society); as is shown in the following sources:
In Tractate Sanhedrin we find the following excerpts 27a, 52b, and 58b.
Sanhedrin 27a; “[As we find] in the case of Bar Chama, who committed murder. The Resh Galutha (Exilarch) said to Rabbi Abba bar Yaakov: Go and investigate the matter, if he is definitely the murderer, dim his eyes (Take out his eyes, because the death penalty of Beis Din was nullified and through blinding him he will be fined for Beis Din has the authority to give extra-legal punishments as we learned in Sanhedrin 46a etc…, Rashi). Two witnesses thereafter appeared and testified to his definite guilt; but he [Bar Chama] produced two other witnesses, who gave evidence against one of the accusing witnesses”.
From this excerpt it appears that if there were not the second set of witnesses to discount the testimony of one of the witnesses, Bar Chama would have been blinded. The Exilarch, the political head of the Jews in the Diaspora in Babylonia after the destruction of the second Commonwealth, had executive powers. This is consistent with the above reading in Maimonides and the differences between the kings’ (executive power) authority and that of Beis Din.
The second excerpt from Tractate Sanhedrin is from 52b,
When Imarta the daughter of Tali, a priest, committed adultery (For which the punishment is burning through pouring molten lead down the throat of the guilty), thereupon Rabbi Chama ben Toviah had her surrounded by bundles of twigs and burnt. Rabbi Yosef said: He [Rabbi Chama] was ignorant of two laws. He was ignorant of Rabbi Masna’s dictum (of how burning is done) and of the following Baraitha: “And thou shalt come unto the priests, the Levites, and unto the judge that shall be in those days:” This teaches that when the priesthood is functioning [in the Temple], the judge functions [in respect of capital punishment]; but when the priesthood is not functioning, the judge may not function.
The “N’mokie Yosef” (Rabbi Yosef Ibn Chaviv, of the 15th century) on his commentary to the laws of the Rif (Rabbi Yotzchok Al-Fasi, of the 11th century), in discussing this excerpt asks the following question. “…If one would ask, didn’t we learn that Beis Din has the authority to sanction behaviors extra-legally as the result of an immediate fiat and that the time demands action by the Beis Din (Sanhedrin 46a) as the one who rode a horse on the Shabbos and was stoned (so why does Rabbi Yosef maintain that Rabbi Chama ben Toviah acted ignorantly?) The N’mokie Yosef answers; that the right that Beis Din has in extra-legal sanctions only apply to punishing individuals punishments which are not said in the Torah and not the ones that are explicitly stated in the Torah (and since burning of the Kohen’s daughter who commits adultery is a capital punishment that is explicit in the Torah Rabbi Chama ben Toviah, was not able to burn her in a similar manner).
However, the above excerpt clarifies how the authority of the Beis Din to act extra-legally applies to making boundaries (not unlike Durkheim’s Anomie theory) for society to behave in a certain (Torah observant) way.
The third excerpt from Tractate Sanhedrin is from 58b,
“Resh Lakish said: He who lifts his hand against his neighbor, even if he did not smite him, is called a wicked man as it is written, And he said unto the wicked man, Wherefore wouldst thou smite thy fellow? ‘Wherefore hast thou smiteth is not said, but wherefore wouldst thou smite, showing that though he had not smitten him yet, he was termed a wicked man. Ze’iri said in Rabbi Chanina’s name: He is called a sinner, for it is written, “But if not, I will take it by force”; and it is further written, “Wherefore the sin of the young men was very great before the Lord.” Rabbi Huna said: His hand should be cut off, as it is written, Let the uplifted arm be broken. Rabbi Huna had the hand cut off of one who was accustomed to strike other people].” (Have the hand of one who constantly batters others to be amputated and penalize him through the amputation for Beis Din has the authority to give extra-legal sanctions to prevent certain behavior, Rashi).
This excerpt raises a question on the previous explanation for it appears that Rabbi Huna acted through using the power of Beis Din, and not through executive power. And as discussed above the power of Beis Din applies primarily to enforcing the keeping of the Mitzvos (and applies only when there is an immediate fiat and the time demands action), whereas the executive power of the king is limited to civil crimes (and less of a burden of proof). A possible solution can be found in the following Talmudic excerpt:
The Talmud in Bava Kama p. 96b states the following;
“THIS IS THE GENERAL PRINCIPLE: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE OF THE MISAPPROPRIATED ARTICLES AT] THE TIME OF THE ROBBERY. What additional fact is the expression. THIS IS THE GENERAL PRINCIPLE intended to introduce? — It is meant to introduce that which Rabbi Elai said: If a thief misappropriated a lamb which became a ram, or a calf which became an ox, as the animal underwent a change while in his hands he would acquire title to it, so that if he subsequently slaughtered or sold it, it was his which he slaughtered and it was his which he sold.
A certain man who misappropriated a yoke of oxen from his fellow went and did some ploughing with them and also sowed with them some seeds and at last returned them to their owner. When the case came before Rav Nachman he said [to the sheriffs of the court]: ‘Go forth and appraise the increment [added to the field].’ Rava said to him: Were only the oxen instrumental in the increment, and did the land contribute nothing to the increment? — He replied: Did I ever order payment of the full appraisement of the increment? I surely meant only half of it. He, however, rejoined: Be that as it may, since the oxen were misappropriated they merely have to be returned intact, as we have indeed learnt: ALL ROBBERS HAVE TO PAY IN ACCORDANCE WITH [THE VALUE] AT THE TIME OF THE ROBBERY. [Why then pay for any work done with them?] — He replied: Did I not say to you that when I am sitting in judgment you should not make any suggestions to me, for Huna our colleague said with reference to me that I and ‘King’ Shapur are [like] brothers in respect of civil law? That person [who misappropriated the pair of oxen] is a notorious robber, and I want to penalize him.”
This excerpt clarifies the previous explanation in what was maintained to be the correct reading in Maimonides, that the King’s power to use extra-legal sanctions is limited to civil crimes whereas the authority of the Rabbis’ or the Beis Din has authority in affirming how individuals behave religiously. This comes to the fore from Rav Nachman’s statement “I and King Shapur are like brothers in respect to civil law… I want to penalize him.” Because I am like King Shapur I can penalize him, even without exercising the authority of the Beis Din “of only because of an immediate fiat and the time requires action” because of the actions of a significant minority like the women practicing black magic by Rabbi Shimon ben Shetach.
Through this we can possibly also explain the excerpt above about Rabbi Huna (having the hand of the batterer amputated) from Sanhedrin 58b. There are numerous possible solutions: 1) if Rabbi Huna can designate who has the ability to sanction extra-legally also from executive power, than it would make sense that the same would apply to him, 2) our second answer can be based on Steinsaltz (1976) who writes,
“The Talmud sees no basic distinction between criminal and civil law, just as there is no clear division between offenses committed by one man against another and religious transgressions “between man and G-d.” All the spheres of legal activity are seen only as different aspects of one comprehensive body of teaching. (p.163)…The bet din therefore considered certain problems not only in the light of the guilt of the defendant according to law, but sometimes on the basis of whether the precept “And thou shalt pluck the evil from thy midst” should be applied to him. In accordance with these powers, the courts sometimes dealt out severe sentences (“not from the words of the Torah and not in order to transgress against the Torah”) determined not by the general code of law, but in accordance with exigency. These powers were exercised not only while the Sanhedrin existed, but later as well (apparently until the fourteenth century in Spain) (p.170).
In other words the authority of the Beis Din to sentence extra-legal sanctions includes civil crimes for they are also sins which can be supported by Netanyahu (1968):
“The extraordinary composition of the Synhedrion was not without relation to its functions and prerogatives. The function of the higher court was not only to decide controversies and legal matters, but also to abrogate the law if in its judgment the case required such action. This prerogative of acting contrary to the law belonged, according to Jewish tradition, to the King. But Abravanel at this point differs with tradition. He finds some support for this view in a statement of one Talmudic authority (Note 57 quotes the Talmud Sanhedrin p.46a, as mentioned above) and declares that ‘there was nothing which the King was entitled to do that the Synhedrion was prohibited from doing.’ (Note 58 is Abravanel’s commentary to Deut. 17.8 (f.34, col. 4)”
Although Netanyahu maintains that Abravanel (Great Jewish Statesman and Philosopher of the 15th Century) is contrary to tradition that the power of Beis Din is greater than the prerogative of the king, it has been shown that even according to Abravanel, civil crimes are included within the category of commandments (Mitzvos) and therefore within the authority of Beis Din.
The following two halachos of Maimonides should clarify and support the above explanation. Both are found in his 14th volume named Shoftim (Magistrates) in the laws entitled Melachim (Kings), and Mamrim (Rebellious ones).
In the laws of Melachim (Kings) chapter 3 Maimonides writes the following;
A murderer against whom the evidence is not totally conclusive; or who was not warned before he slew his victim, or even one who was observed by only one witness, and similarly, an enemy who inadvertently killed one of his foes – the king is granted license to execute them and to improve society according to the needs of the time.
He may execute many on one day, hang them, and leave them hanging for many days in order to cast fear into the hearts and destroy the power of the wicked of the earth.”
In the laws of Mamrim (Rebellious ones) Chapter 2 Maimonides writes the following;
A court may, however, suspend the application of such decrees temporarily, even if it is of lesser stature than the original court. The rationale is that these decrees should not be considered as more severe than the words of the Torah itself, and any court has the authority to abrogate the words of the Torah as a temporary measure.
What is implied? If a court sees that it is necessary to strengthen the faith and create a safeguard so that the people will not violate Torah law, they may apply beatings and punishments that are not sanctioned by Torah. They may not, however, establish the matter for posterity and say that this is the halachah.
Similarly, if they saw that temporarily it was necessary to nullify a positive commandment or violate a negative commandment in order to bring people at large back to the Jewish faith or to prevent many Jews from transgressing in other matters, they may do what is necessary at that time. To explain by analogy: Just like a doctor may amputate a person’s hand or foot so that the person as a whole will live; so, too, at times, the court may rule to temporarily violate some of the commandments so that they will later keep all of them. In this vein, the Sages of the previous generations said: “Desecrate one Sabbath for a person’s sake so that he will keep many Sabbaths.”
This difference of jurisdiction of authority between king and Beis Din is also found in the Drashos Haran (1977) (Sermons of the Ran, Rabbi Nisim Gerondi of the 14th and 15th centuries wrote a commentary to the Laws of the Rif). He writes (free translation),
“This can be explained through what we learned in the Talmud Tractate Sanhedrin (40b), ‘Our Rabbis taught: [The following questions are asked]: Do you know him? …Did you warn him (what the consequence would be)? Did he accept your warning? Did he admit his liability to death? Did he commit the murder within the time needed for an utterance (from when you warned him)?’ There is no question that all these questions are need in order to carry out righteous justice, for why should an individual be executed if one did not know the legal consequence for one’s crime? For this reason the warning of the two witnesses are needed, similar to all the questions that are mentioned in the Talmudic passage. This is true righteous judgment which is the responsibility of the Judges. However, if offenders are only sanctioned through such procedures, how will society function? For murderers will kill rampantly and they will not be deterred from punishments! Therefore, in order to create a normal civilization, G-d commanded us to appoint a king…And the king can judge and sentence people without warning, and act (sanction) as he sees fit in his mission to perfect society” (p.190).
Before the above reading of Maimonides is contrasted with executive power of the American criminal justice system, the following fascinating insightful Talmudic excerpt emphasis’s the authority of the Beis Din. The Talmud Tractate Avoda Zarah p.8b reads as follows,
Forty years before the Temple was destroyed did the Sanhedrin abandon [the Temple] and held its sittings in Chanus. Has this any legal bearing? — Said Rabbi Yitzchak ben Avdimi: It indicates that [from that time onward] they did not deal with cases of fines. ‘Cases of fines’! How can that enter your mind? Has not Rav Yeudah said [the following] in the name of Rav: Verily that man, Rabbi Yeudah ben Bava by name, be remembered for good, for were it not for him the laws of fine would have been forgotten in Israel? ‘Forgotten’! Surely, they could be studied? — Nay, they would have been abolished; for the wicked Government of Rome issued a decree that he who ordains a Rabbi shall be slain, likewise he who is ordained shall be put to death, the town in which an ordination takes place shall be destroyed and the techum(2000 cubits around the city) in which the ordination is held shall be laid waste. What did Rabbi Yeudah ben Bava do? He went and sat down between two mountains and between two large towns between two techum’s, namely, between Usha and Shefar’am and there he ordained five elders: Rabbi Meir, Rabbi Yeudah [ben Il’ai]. Rabbi Yose, Rabbi Shimeon and Rabbi Eleazar ben Shammua (R. Aiava adds also R. Nehemiah). On seeing that they were detected by the enemies, he said to them, ‘Flee, my children!’ but they said to him, ‘And you, O Rabbi, what about you?’ ‘I,’ he replied. ‘will lie still before them, even as a stone that is not turned.’ It was stated that the Romans did not move from there until they drove three hundred iron spears into his body and made his corpse like a sieve! — But said Rabbi Nachman ben Yitzchak: Say not that ‘cases of fines’ ceased, but that capital cases ceased. Why? — Because when the Sanhedrin saw that murderers were so prevalent that they could not be properly dealt with judicially, they said: Rather let us be exiled from place to place than pronounce them guilty [of capital offences] for it is written “And thou shalt do according to the sentence, which they of that place which the Lord shall choose shall tell thee”, which implies that it is the place that matters (Because they moved from the temple capital cases ceased from being adjudicated throughout the Jewish community).
This above passage of the Talmud shows us the power that the Beis Din has; that Beis Din has the power to act extra-legally because the time demands action, even if it means ultimately ending legal adjudication of murder, because murder became so prevalent that no deterrents of laws could affect the social situation. In other words the Beis Din can use their power to act extra-legally, inversely.
Turning now to the American criminal justice system and the formulation of the tenets of executive power, I believe it is easier to begin with a case study, and through it analyze the measures of executive power in times of emergency.
Shane (2010) reportedly wrote for the New York Times that the Obama administration authorized the Central Intelligence Agency to kill Anwar al-Awlaki an American citizen who was a charismatic Al-Qaeda member. He goes on to write that Mr. al-Awlaki was connected to the Fort Hood shooting in 2009 and the attempted bombing in Times Square by Faisal Shahzad. He brings in his article the opinion of Vicki Divoll who was a C.I.A. lawyer where she says “Congress has protected Awlaki’s phone calls, but it has not provided any protections for his life. That makes no sense.” It is apparent that she is referring to the famous Supreme Court case Katz v. U.S. 389 U.S. 347, where the Supreme Court ruled regarding searches and seizures “we have since departed from the narrow view on which that decision rested. Indeed, we have expressly held that the Fourth Amendment governs not only the seizure of tangible items, but extends as well to recording of oral statements, overheard without any “ technical trespass under…local property law.” Once this much is acknowledged, and once it is recognized that the Fourth Amendment protects people- and not simply “areas”- against unreasonable searches and seizures, it becomes clear that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure.” He points out other issues in adding Awlaki to the C.I.A.’s kill list is that drone strikes are only allowed under the Act of Congress after 9/11 that permitted Drone strikes against those who aided and abetted the perpetrators of the attack, and Awlaki was not part of those, and furthermore Yemen is not at war with the United States, and under the constitution Awlaki as Divoll states is protected to not be “deprived of life, liberty, or property without due process of law”.
On the other hand Shane brings in his article another former C.I.A. lawyer John Radsan, who stated that judicial oversight for additions to the target list would be unconstitutional, said “That sort of review goes to the core of presidential power”. Also he brings a statement by Harold Koh, who is the State Department’s legal advisor, who maintained that a possible drone strike against Awlaki would be allowed under the rule of self defense.
To summarize the issues being dealt with in this case study are the following; 1) self defense of the United States, 2) legality of drone strikes outside the zone of suspected terrorists who helped perpetrate the attacks of 9/11, 3) The constitutional rights of American citizens who become terrorists, 4) Presidential power and judicial review.
These issues come to the fore when on September 30th 2011 Anwar al-Awlaki was killed in a Drone attack in Yemen. Shane (2011) again for the New York Times outlines the Obama’s administration reasons for carrying out the Drone attack; 1) Anwar al-Awlaki posed an imminent threat to American lives because of his involvement in attempts to blow up passenger airplanes, the attack at Fort Hood, and the attempt to place a bomb in Times Square, 2) He was fighting alongside Al-Qaeda, and given the pandemonium in Yemen relying on the Yemenite authorities to arrest and extradite him was unreasonable.
To begin to analyze the issues at hand it is paramount for us to discuss the theory of presidential office, and ultimately executive power. Article II § 1of the constitution states “The executive power shall be vested in a President of the United States of America”, if contrasted with the opening of Article I § 1 we may make an obvious observation. Article I § 1of the constitution which states “All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and house of Representatives”. If looked at closely; seemingly is saying something obvious. The legislative powers that congress has are only the ones which are explicitly designated in the constitution; however, regarding presidential power, or executive power it is different. Seemingly the entire executive power is vested in the President of the United States, even beyond the designations of Article II or the constitution for that matter. In other words, although certain powers are designated to the president in Article II as appointments and as the Commander and Chief of the Army and Navy, nevertheless the executive power also goes beyond the specific designations. If such a reading of the constitution is correct, and what those powers are, lies before us now.
Justia and Oyez (2011) bring the following discussion between Hamilton and Madison regarding executive power. In defending our above reading Hamilton wrote “The second article of the Constitution of the United States, section first, establishes this general proposition, that ‘the Executive Power shall be vested in a President of the United States of America.’ The same article, in a succeeding section, proceeds to delineate particular cases of executive power. It declares among other things, ‘that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; …and to take care that the laws be faithfully executed’. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties.” Hamilton continues, “The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of certain particulars was designed as a substitute for those terms, when antecedently used. The different mode of expression employed in the constitution, in regard to the two powers, the legislative and the executive, serves to confirm this inference…The general doctrine of our constitution then is, that the executive power of the nation is vested in the President; subject only to the exceptions and qualifications, which are expressed in the instrument.”
However, Madison argued that our above reading and Hamilton’s position is untenable for the following reason, “Were it once established that the powers of war and treaty are in their nature executive; that so far as they are not by strict construction transferred to the legislature, they actually belong to the executive; that of course all powers not less executive in their nature than those powers, if not granted to the legislature, may be claimed by the executive; if granted, are to be taken strictly, with a residuary right in the executive; or…perhaps claimed as a concurrent right by the executive; and no citizen could any longer guess at the character of the government under which he lives; the most penetrating jurist would be unable to scan the extent of constructive prerogative.” However, because these powers, the power for treaties and declaring war also exist in the Congress, then one may not maintain that unmentioned powers in Article II belong to the President, and therefore a broad view of executive power.
Never the less both Hamilton and Madison agree, that the fundamental obligation and therefore right of Presidential power is as the Constitution states is “to take care that the laws be faithfully executed”. This is similar in principle to the tenet set forth by Maimonides “by virtue of his regal authority, in order to perfect society”; although Maimonides is talking about extra-legal actions and sanctions. As will be shown there is room to maintain the same extra-legal authority by the President of the United States, according to Hamilton’s opinion.
Justia and Oyez (2011), finish their discussion of executive power with the following observation, “However contested the theory of expansive presidential powers, the practice in fact has been one of expansion of those powers, an expansion that a number of “weak” presidents and the temporary ascendancy of Congress in the wake of the Civil War has not stemmed. Perhaps the point of no return in this area was reached in 1801 when the Jefferson-Madison “strict constructionists” same to power and, instead of diminishing executive power and federal power on general, acted rather to enlarge both, notably by the latitudinarian construction of implied federal powers to justify the Louisiana Purchase.”
If as Hamilton posited and as Justia and Oyez (2011) maintain, that an expansive view of executive power was and is the norm; what are some of these powers and how do they stem from Article II of the constitution? Delahunty and Yoo (2002) in discussing not only the president’s authority to retaliate against attacks on the United States, its citizens, or its foreign policy interests also bring the two readings of Article II, they state “To be sure Article II lists specifically enumerated powers in addition to the Vesting Clause, and some have argued that this limits the “executive Power” granted in the Vesting Clause to the powers on that list. The purpose of the enumeration of executive powers in Article II, however, was not to define and cabin the grant in the Vesting Clause. Rather the Framers redirected some elements of powers that had traditionally been regarded as “executive”, assigning them to Congress in Article I, while expressly maintaining other elements as enumerated executive powers in Article II” (p.493-4).
What is important for our discussion is what Delahunty and Yoo (2002), infer and deduct from this expansion of power, as will be shown they outline the foundation for executive extra-legal action; which I believe can explain the actions of the Obama Administration against Anwar al-Awlaki. They bring a quote from Attorney General later Justice Robert Jackson,
“Article II § 2 of the Constitution provides that the President” shall be Commander in Chief of the Army and Navy of the United States.” By virtue of this constitutional office he has supreme command over the land and naval forces of the country and may order them to perform such military duties as, in his opinion, are necessary or appropriate for the defense of the United States. These powers exist in time of peace as well as in time of war… Thus the President’s responsibility as Commander in Chief embraces the authority to command and direct the armed forces in their immediate movements and operations designed to protect the security and effectuate the defense of the United States… This authority undoubtedly includes the power to dispose of troops and equipment in such a manner and on such duties as best to promote the safety of the country” (p.496-7).
This power of placing troops around the world in peace time is essential to the argument for the Administration’s actions against Awlaki. They maintain that this power was used by President Clinton when he ordered attacks against terrorist facilities in Afghanistan and Sudan, which may be viewed as a precedent for the actions of the Obama administration’s actions against Awlaki. In justifying his actions President Clinton said, “I ordered this action for four reasons: 1) because we have convincing evidence these groups played the key role in the Embassy bombings in Kenya and Tanzania; 2) because these groups have executed terrorist attacks against Americans in the past; 3) because we have compelling information that they were planning additional terrorist attacks against our citizens and others with the inevitable collateral casualties we saw so tragically in Africa; and 4) because they are seeking to acquire chemical weapons and other dangerous weapons” (Delahunty and Yoo (2002) p. 506). President Clinton’s actions did not have prior congressional approval, nevertheless his actions were constitutional because of the executive’s power to uphold the laws and through his designation as Commander in Chief the responsibility to protect the American people, American interests, and maintain America’s national security.
Things begin to get cloudy when one realizes that congress has passed to resolutions, The War Powers Resolution of 1994 and the Joint Resolution of September 14, 2001. The two resolutions appear to imply that congress has the ability to authorize the actions of the President, and that therefore the president may not exert the executive power without their approval. However, the executive branch has never conceded either under President Clinton or Bush, that these resolutions imply that congress has that power.
With this brief overview it may help to look back at the issues surrounding that drone attack on Anwar al-Awlaki. To review the issues brought above; 1) self defense of the United States, 2) legality of drone strikes outside the zone of suspected terrorists who helped perpetrate the attacks of 9/11, 3) The constitutional rights of American citizens who become terrorists, 4) Presidential power and judicial review.
From our discussion it would seem plausible to maintain that the self defense of the United States is within the purview of the Executive. To demand that the President’s actions be subject to Judicial review before any actions is carried out, undoubtedly undermines the authority, and in Hamilton’s view the constitutional extra-legal executive power vested in the President of the United States.
Next dealing with international law and the legality of drone strikes outside the zone of suspected terrorists who helped perpetrate the attacks of 9/11; with our previous construction the drone attack on Awlaki has nothing to do with the 9/11 terrorist attacks, if anything it is tied into far more recent incidents in the United States proper. The events include the Times Square bomb, the Fort Hood shooting, and the underwear bomber of December ’09. Therefore why should the attack on Awlaki be any less than Clinton’s attack’s in Afghanistan, Sudan, and Iraq? As in President Clinton’s words, “because these groups have executed terrorist attacks against Americans in the past, and because we have compelling information that they were planning additional terrorist attacks against our citizens and others.”
The final issue at hand which must be dealt with are the rights of an American citizen who becomes a terrorist, and their inherent right for due process and their 5th amendment protection. Going back to recent history, all American citizens who have been convicted of terrorism, like Timothy McVeigh and the Oklahoma City bombing; and older cases such as John Wilkes Booth who shot President Lincoln, were not automatically denied their 5th amendment right to Due Process. Booth was killed in his attempt not to be arrested. So how is this question dealt with?
It may be helpful to go back to the case brought in 2010 by Awlaki’s father and the ACLU, that Anwar al-Awlaki be taken of the C.I.A.’s kill list. The judge in the case refused to hear the case because he claimed that if Anwar al-Awlaki wanted to use his 5th amendment right he should come the United States and give himself up to be judged. However, because he chose to hide in Yemen; he retroactively waived his 5th amendment right. It is important to note what Savage (2011) writes, he writes in his article about a secret memo which stated that the only legal way of killing Awlaki was that capturing him alive was not possible. From this memo it would seem that the Obama administration 1st does not agree with the judge who heard the case in 2010, and 2nd maintains that one cannot cede their 5th amendment right, and 3rd does not necessarily believe in an expansionist view of the executive extra-legal power.
In conclusion, it has been shown how the precedents of executive extra-legal action exist in Jewish law and in the American criminal justice system. We have discussed Maimonides opinion of Executive power that a king’s extra-legal actions are only justifiable in the executive role of perfecting society. Likewise the extra-legal power of the President is to maintain the safety and security of the United States enforce the laws, so that all may enjoy their own “life, liberty, and pursuit of happiness.”
Delahunty, R, J, and Yoo, J, C, (2002) The President’s Constitutional Authority to Conduct Military Operations Against Terrorist Organizations and the Nations that Harbor or Support Them: Harvard Journal of Law and Public Policy v. 25, no.2, 487-515
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Katz v. U.S. 389 U.S. 347
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