Monday, September 19, 2011
New York - Mesira Analysis By Rabbi Avi Shafran
New York - Last Wednesday a small group of Jews was present in a Los Angeles courtroom as U.S. District Judge Margaret Morrow heard arguments on whether a 64-year-old frum Jew should be found in contempt of court for his refusal to testify against other Jews before a federal grand jury.
After completing a two-year sentence in regard to a tax evasion case on behalf of a group of religious institutions, the man was served with a subpoena to testify before a grand jury in the government’s continuing investigation of the case, and now finds himself facing the possibility that the judge will rule him in contempt, a decision that could result in additional incarceration.
The case at issue concerns the group’s network of institutions, which apparently accepted donations from wealthy contributors but issued receipts in excess of what was actually received, allowing for donors’ tax breaks on the larger amounts.
At the heart of the man’s current situation is the Jewish prohibition of mesira, literally, “handing over”—the forbiddance, codified in Jewish religious law, of informing on a fellow Jew to secular authorities.
Because the transgression of mesira is so dire,” the man asserted to the Los Angeles Times through a Yiddish interpreter, “my mind won’t change until I die.
His attorney, Michael Proctor, said the man had obtained Jewish legal decisions that the serious prohibition of mesira applies in his case and that, as a result, he should not testify.
“It’s not conceivable,” Mr. Proctor told the judge, “that he is going to, quote, ‘break’.”
On the other side of the issue stands Assistant U.S. Atty. Daniel O’Brien, who argued that such a religious stance, if not punished, could serve as a “convenient tool” for law- breakers to hide behind. Because there are other Jews, Mr. O’Brian contended, whose testimony will be vital to the case, permitting the Jewish man to avoid testifying could “stifle” the investigation.
Prosecutors have also reportedly contended that the man’s position is unsupported by Talmudic law.
The Los Angeles Times quoted Rabbi Michael Broyde, an Emory University law professor and a member of the Beth Din of America, as contending that, in the paper’s paraphrase, “a commonly held view is that the principle doesn’t apply in a just, democratic state.” There are, how- ever, other views among respected decisors of Jewish law.
In any event, the Jewish man’s attorneys assert, what matters is not whether the rabbi is correct in his interpretation of Jewish law, but the fact that his belief is sincere and that he is committed to it. Finding him in contempt and sending him to jail, they say, will be “vindictive rather than coercive.”
The judge has postponed her decision for now.
Reaction has been varied to a frum Jew’s continued refusal to share information about fellow Jews with government authorities because of his belief that to do so would violate the prohibition of mesira. The mainstream media have largely reported the case straightforwardly (although a reporter for a major Jewish news service asked this writer if the “tactic” employed by this man is a common one; the response he received was that a religious conviction is not a tactic).
On the street, and in the even grimier blogosphere, however, a broad range of perspectives has been aired, many of them deeply critical of the Jewish man’s stance. Among common reactions have been assertions that the man is endangering Jews by his stubbornness, and that he has created a chillul Hashem (desecration of G-d’s Name) by his refusal to name names.
It is important to separate the issue of mesira from a crime that is committed. Dealing dishonestly, whether with Jews, non-Jews or governments like ours, is forbidden by halacha. The sources are clear about the requirement incumbent on a Jew to heed the law of the land—dina di’malchusa—with regard to monetary and other civil matters.
Also worth recognizing is that the prohibition of mesira does not always apply, particularly in a society with a justice system like that of the United States, which does not systematically treat Jews badly and whose laws are generally fair and just. In cases, for example, where a Jew poses a threat to others—such as a violent criminal or child abuser—and cannot be controlled by communal efforts, decisors are in agreement that the prohibition of mesira is trumped by concerns about the potential harm the wrongdoer poses to the public.
Cases like this man’s, however, are not in that category. His implication of other Jews in the crime for which he has paid his debt to society will not remove any threat to society; it will only create the likelihood that other Jews may come to harm. Although there are halachic decisors who might not consider mesira as applying at all in a country like the United States, there are certainly many—including Rav Moshe Feinstein, zt”l—who have stated clearly otherwise. The rabbi has consulted with his personal rabbinic guides and received a similar determination.
A common misconception about chillul Hashem is that it includes anything that is looked down upon by people. But for something to qualify as chillul Hashem it must first be a sin; and the fulfillment of an obligation cannot, by definition, be a chillul Hashem. Were society to suddenly see circumcision as a barbaric and terrible rite, practicing bris mila despite the societal disapproval would constitute a kiddush Hashem, a sanctification of G-d’s Name, not its opposite. The man’s refusal to inform on others, rooted as it is in halacha, is laudable.
American history includes a long and illustrious history of citizens putting personal conscience before the law of the land. The civil disobedience of the 1950s and 1960s in the face of racial discrimination is rightly celebrated today. Dedication to a religious ideal deserves no less respect than dedication to a secular one. If a person is willing to give up his freedom in the service of a higher ideal, he should be respected for his selfless and principled choice.
The prohibition of mesira might strike some, even some otherwise halacha-respecting Jews, as discomfiting. The idea of a requirement that a Jew seek to protect the well-being of other Jews, especially when they may have committed crimes, may stick in some contemporary craws. But even leaving aside the fact that many religious and ethnic groups display special concern for “their own” (just as families are more protective of family members than strangers—a fitting comparison here), committed Jews need make no apologies for what the Torah teaches.
Whatever the judge decides, one thing is clear: the man ready to be jailed for his principles intends no contempt of any earthly court, only to honor the Heavenly one.
Rabbi Shafran is an editor at large and columnist for Ami Magazine