Holding the Puppet Masters of Terror Accountable
President
Trump recently reported on the elimination of arch terrorist, Abu Bakr
Baghdadi, the leader of ISIS, and the world responded with a sigh of relief.
Although Baghdadi was guilty of murder, torture and assorted depravities, he
was targeted in his capacity of leadership-responsible for untold cruelty and
murder on a mass level. Here we will explore the underlying question of whether
a fomenter and financier of terror can be held halachically liable for the
actions of its proxies and agents. In modern Western law, an instigator or
plotter can be held civilly and criminally liable under the general categories
of aiding and
abetting and
participating in a conspiracy, as well as
the more specific statute against providing material support to terrorists;[1]
in halachah, we have two possible theoretical frameworks to consider: agency (shlichus) and indirect
causation (garmi).[2]
Shlichus
Generally,
the rule that “there is no agent for a sinful matter” forecloses both criminal
and civil liability for a principal for the transgressive action of his agent.
One who orders his agent to commit murder is therefore not criminally liable
(under terrestrial law, although it is taken for granted that he will be held
responsible by Heaven),[3]
and one who instigates and plans (but does not directly participate in) a
burglary is therefore not civilly liable.[4]
Some
authorities, however, assert a major exception to this principle in the case of
an agent who has an established history (“muchzak
be’kach”)
of engaging in such activity. The Talmudic rationale for the inapplicability of
agency to sinful behavior is: “the words of the Master and the words of the
student, to whose words shall we listen?”,[5]
which these authorities apparently understand to mean that the principal can
claim that he did not really believe that the agent would obey him.[6]
This does not apply in the case of an agent with a demonstrated disregard for
the “words of the Master”.[7]
Others,
however, strongly disagree, maintaining that the inapplicability of agency to
sinful conduct is simply a Divine decree, and therefore absolute and
independent of any expectations of the principal.[8]
It
follows that one who incites a novice terrorist to perpetrate an act of
terrorism would definitely not be liable under the theory of agency, whereas
the liability of one who conspires with a veteran, professional terrorist would
depend on the aforementioned dispute.
Garmi
There
is generally no criminal or civil liability for a crime or tort perpetrated
indirectly (grama). A major
exception is civil liability for the subcategory of indirect causation the
Talmud terms garmi, but there is
much dispute over the definition and parameters of this class. Some posit
conceptual criteria, that what distinguishes garmi is that the damage
caused is “certain”, “immediate” and “perpetrated by [the tortfeasor] himself”,[9]
while others explain the distinction pragmatically, that the liability for garmi
is
simply a rabbinic penalty imposed in situations that were particularly “common”
and “frequent”.[10]
The Terumas Ha’Deshen therefore rules that in the case of a
conspiracy to commit theft, a non-participating conspirator is not liable under
the rubric of garmi as none of the
above criteria are satisfied: the injury (in the case of a Jewish actor) is
uncertain, as the would-be criminal, even if he has an established criminal
history, may nevertheless repent and refrain from perpetrating the crime; it
does not immediately follow the conspiracy, but occurs later; and it is not a
common occurrence.[11]
All of these considerations seem to apply equally to terrorist conspiracies,
except for the first, with respect to non-Jewish
terrorists.
[1] 18 U.S. Code § 2339A – Providing material
support to terrorists.
[2] Our discussion will be limited to the
basic, native halachic rules that govern such situations, and we do not
enter into consideration of dina de’malchusa dina, minhag and
other mechanisms by which halachah may incorporate secular law or
custom, or possible distinctions between nation states and private actors.
[4] Rema choshen mishpat end of siman
348. Cf. Bava
Metzia 8a
“amar le’shlucho tzei u’genov li ve’ganav patur”.
[6] See Sema siman 182 s.k. 2.
[7] Shut. Tashbatz 1:156;
Rema 388:15. The context is mesirah, a particularly egregious
infraction, and the Tashbatz’s argument includes the assertion that such
transgressors are “inferior to idolaters”. The Shach ibid. s.k. 67 does
indeed seem to understand that the idea that an established moser is not
fully Jewish is an essential aspect of the Tashbatz’s position (although
it should be noted that this is within the context of the Shach’s
general disapproval of the Tashbatz’s position, and consequent attempts
to limit its scope), but others seem to understand that the main argument of
the Tashbatz is the one given in the main text, that the principal may
not believe that the agent would obey him, and it would seem, then, that the Tashbatz’s
basic holding is not limited to this particular sin, but applies in any context
of an agent who is muchzak to violate the relevant transgression. Cf. Imrei Binah,
Kuntres Ha’Kinyanim at the end
of siman 19;
Miluei Choshen (Dzimitrovsky) to Ketzos Ha’Choshen cited below.
[8] Shach ibid.; Ketzos Ha’Choshen ibid.
s.k. 12. Cf. Shut. Divrei
Chaim chelek 2 choshen
mishpat end
of siman
46.
Proponents of the basic view that the principle of ein shliach ledevar
aveirah applies regardless of the expectations of the principal include Chidushei
Ha’Ritva Kidushin 42b s.v. sha’ani hasam; Penei Yehoshua ibid.
s.v. gemara ve’ha’de’tanya.
[9] Rabbeinu Yitzchak in Tosafos Bava Basra 22b
s.v. zos omeres; Rosh ibid. perek 2 siman 17
and Bava Kama perek 9 siman 13. Cf. Mordechai Bava Kama
remazim 114-16; Sha’ar
Mishpat beginning of
siman
386.
[10] Ritzba in Tosafos ibid.; Shach
beginning of siman 386 (and cf. s.k. 24).
[11] Terumas Ha’deshen 1:315.
Note that the Darkei
Moshe at
the end of siman 348
(reflected in the Rema cited in n. 5) seems to understand that the principle of
ein shliach ledevar aveirah forecloses any liability even under the
theory of garmi, but this is difficult to understand, as pointed out by
the Shach ibid. s.k. 5. Cf. Machane
Efraim, hilchos nizkei mamon siman 7.