Thursday, February 26, 2015

Agency in Matters of Crime and Sin

The Talmud on five different occasions repeats what eventually becomes a recurring refrain in later Jewish books:  ein shali·aḥ li-d’var aveirah, the concept of agency does not apply in criminal matters. It sounds like a dry point of law, the kind of legal adage only a lawyer could love (and, at that, only a certain kind of lawyer!), yet just behind its dry exterior lurks a deeply engaging concept that, were it only phrased more invitingly, would beckon to most as something very well worth their time to consider.

Maybe I should start with a different principle. Sh’luḥo shel adam kamohu, the Talmud also declares, meaning simply that individuals’ legally-appointed agents are “like” them, that among the rights Jewish law finds basic to the human condition (or at least to the Jewish version of the human condition) is the right to appoint a stand-in to act legally on one’s behalf, to bear one’s power of attorney. Therefore, whatever legal action an individual can undertake on his or her own, that person has the right to appoint another to undertake as his or her agent…and this right extends even to intimate areas like marriage and divorce. Nor does the agent have to be a lawyer or even someone particularly knowledgeable about the law—it merely suffices for the agent to be someone that an individual wishes to act on his or her behalf. So the principle merely encapsulates what you would probably have supposed to be the case anyway: what you instruct your agent to do and that agent does, it is as if you yourself had done that thing

But there’s an exception…and that brings us back to the first principle I cited: if you tell your valet—I’ve been catching up on Downton Abbey since we’re back from London, regarding the recent bizarre Jewish plot twist in which I may eventually write —if you tell your valet to steal a chicken and he successfully manages to purloin the desired bird, then you yourself should be responsible because, as noted, the agents of individuals are “like” those individuals and act successfully “as” them by virtue of their formal appointment to do so. But that is not the case at all with the chicken…because ein shali·aḥ li-d’var aveirah, because there simply is no concept of agency in the context of criminal or sinful behavior. Thus the valet ends up stuck holding the bag (or, in this case, the chicken) and, if apprehended, will then be obliged to answer for his own behavior without having the right to blame the whole sorry episode on you (or on Lord Grantham). Indeed, the Talmud even formulates a famous rhetorical question to sharpen its point with respect to the agent’s culpability: divrei ha-rav v’divrei ha-talmid, divrei mi shom·in, the text asks: if someone were to get contradictory instructions from a wise sage and that sage’s lowly disciple, whom would the clever individual choose to obey?  The answer should be obvious: if the valet has to choose between listening to his crooked master’s corrupt order to filch a fowl and eternal God’s sacred injunction never to steal anything at all, his obligation is to ignore his master and follow the command of his heavenly Parent.

These are the thoughts that I bring to the news of earlier this week that a federal jury has found the Palestinian Authority and the PLO liable for supporting six specific terror attacks against American citizens and ordered those groups to pay to those victims or their estates $218.5 million…or rather $655.5 million, since the U.S. Antiterrorism Act of 1992 automatically triples whatever damages a jury awards to victims of terror when those victims or their families seek remedy in federal court. That’s a lot of money, closer to a billion than to a penny! But it still took the jury less than two days to come to its verdict.

The original incidents that prompted the suit, particularly the 2002 bombing of the student cafeteria at the Hebrew University (where I personally ate more times than I can recall during my post-doc year in Jerusalem), stand out as particularly terrible instances of violence aimed solely at civilians. The 2004 bus bombing by a suicide bomber, also in Jerusalem, will be less easily recalled because it took place among so many similar events. Yet, for the families of the thirty-three people killed and the more than 400 wounded in the six specific events the court considered, these attacks will neither fade away nor ever be forgotten.  The victims of these attacks were not exclusively Americans, of course. But the Americans among them had the ability to respond in a way that others did not. Their lawyer, Kent A. Yalowitz, summed things up neatly enough: “If you kill or injure Americans,” he said unambiguously, “the long arm of the American law will come after you.”

And now we come to the point. The Palestinians, naturally enough, tried vigorously to have the suit dismissed. But U.S. District Court judge George Daniels denied their bid last November, finding that the plaintiffs had enough evidence that the PLO and the Palestinian Authority supported the groups whose members carried out these attacks to the extent necessary to warrant trying them in a court of law. And so the trial proceeded, and ended last Monday with the verdict cited above. Something one of the lawyers representing the defendants, however, gave me pause for thought. Why, he asked, should the defendants be asked to pay compensation for deeds they did not personally commit? Even if some of the perpetrators were definitely shown to have had personal ties to either organization, how would or could that make the organizations themselves responsible? Shouldn’t we apply our own adage to the situation and consider liable the bombers who murdered all those people in cold blood but specifically not those who sent them into the fray even if they did provide them with funds, weapons, and encouragement? What about there being no concept of agency in the context of criminal behavior? Surely one could make at least some bricks from that straw!

Yet, curiously, I don’t feel that way at all. Instead, it seems to me that the concept of being held legally liable to make compensation to the victims of crimes one indirectly caused or sponsored is nothing at all like being found guilty of murder in a criminal court. Nor should it be!  Neither the current leadership of the PA or the PLO, nor any of their members, was found guilty this week of murder, after all. Instead, those organizations were found sufficiently responsible for the terror attacks that took the lives of the plaintiffs’ relatives or seriously harmed them physically or mentally to make it reasonable to oblige them financially to compensate the victims of those attacks. And that concept—that an individual responsible for causing harm to others bears responsibility for that harm even if he or she did not inflict it personally on anyone at all—that too is a well-enshrined principle of Jewish law with unimpeachable scriptural bona fides.

Legal culpability and moral responsibility are related concepts, of course…but they are surely more of cousins than siblings, let alone twins. To say that murderers are guilty of murder, not those who encourage them to kill, sounds rational enough. But to extrapolate from that thought the notion that people who are materially responsible for terror attacks—by promoting violence, by paying the perpetrators, and by encouraging those perpetrators to feel justified in murdering innocents—to argue that such people should not bear any responsibility for those attacks merely because they didn’t carry them out personally seems, at least to me personally, an unarguable assertion.

Two weeks ago, Herr X, an as-yet-unnamed ninety-three-year-old citizen of Germany was charged with 170,000 counts of accessory to murder, crimes he allegedly committed when he was an SS guard at Auschwitz from 1942 to 1944 and participated in the killing of that many people.  (He should not be confused with a different unnamed man, also ninety-three, whom German prosecutors charged last September with being an accessory to 300,000 murders at Auschwitz.) But these two are charged with actually being part of a killing machine, actually being present and actively involved in the Nazi effort to exterminate the Jewish people. They didn’t personally operate the gas chambers. But they were part of the team that worked to murder the large majority of prisoners who arrived in that place for as long as it existed. They are therefore facing criminal proceedings, as well they should. (I find the argument that they should be spared prosecution because of their age laughable. How many of the people who argue in that vein would stick to their guns if the defendant stood accused of playing a role not in the deaths of European Jews but of their own children? Let me answer that for you: not a single one.)

The principle that there can be no concept of agency in matters of crime or sin seems noble to me. In a just society people should and must bear responsibility for their own actions, for their deeds and misdeeds. The person who murders deserves to be punished as a murderer and no one other…but that thought certainly should not absolve those who foster violence, who condone terrorism, or who send suicide bombers to their deaths with words of encouragement and bizarre promises about the rewards terrorists can expect to reap in the next world. To say with Scripture that each of us must bear the consequences of his or her own actions is a kind of a no-brainer in my mind. But to reach out, as our American justice system did this week, to inflict severe penalties on those who foster violence directed specifically against civilians is in my mind not only rational and reasonable but fully just. To speak openly and proudly about suicide bombers as heroes and national champions is grotesque. To abet such acts precisely in the way the Palestinian leadership has over the years is wholly irresponsible and reckless, and it is morally wrong as well.

Whether the plaintiffs will find a way to acquire the monies awarded them this week is, obviously, a different question than whether those awards were justly made. But that those plaintiffs are entitled to be compensated for the wrongs perpetrated against them or their late relations by those who actively abetted those wrongs—that seems as obvious to me as it is rational and reasonable.  The Federal District Court in Manhattan acted wisely last week in taking a decisive stand against two organizations that have long lionized terrorism and encouraged terrorists to feel reasonable about attacks against unarmed innocents whose sole “crime” is their presence as Jews on the territory of the Jewish state.

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