Shammai Engelmayer
Shammai Engelmayer

9/11: A horribly harsh lesson not learned

At around 1:30 p.m. Australia time on September 11, 2001, meaning around 10:30 p.m. on September 10th here on the East Coast—Australia is 14 hours ahead of us—former President Bill Clinton addressed a question about Osama bin Laden at a luncheon with a group of businessmen in Melbourne.

“He’s a very smart guy,” Clinton said. “I spent a lot of time thinking about him. And I nearly got him once…. I could have killed him, but I would have had to destroy a little town called Kandahar in Afghanistan and kill 300 innocent women and children, and then I would have been no better than him. And so I didn’t do it.”

Nearly 12 hours later, beginning at 8:46 a.m. Eastern Daylight Time and culminating at 10:28 a.m. EDT with the collapse of the World Trade Center’s North Tower, Clinton had 2,997 reasons to regret that decision.

Long before those 102 minutes of unbridled 9/11 horror, Osama bin Laden was deemed among the most dangerous terrorist enemies of the United States and the rest of the free world. After all:

• He was implicated in the February 26, 1993, truck bombing of a World Trade Center garage that only barely missed taking down the Twin Towers because the truck was not parked close enough to the North Tower’s concrete foundation.

• He was responsible for the death of 18 U.S. service personnel in Somalia in October 1993.

• On his orders, terrorists killed 224 people in coordinated attacks on the U.S. embassies in Kenya and Tanzania on August 7, 1998.

• On August 12, 2000, he orchestrated the attack on the USS Cole, in which 17 sailors were killed and many more were injured.

In the wake of 9/11, because the Taliban who then controlled Afghanistan gave safe haven to al-Qaeda—going so far as to refuse President George W. Bush’s request to capture Bin Laden and his top aides and turn them over to us—the United States decided to target both al-Qaeda and the Taliban. On September 26, just more than two weeks after 9/11, a CIA team known as Jawbreaker covertly entered Afghanistan to prepare the way for Operation Enduring Freedom. Then, on October 7, U.S. and British war planes began pounding Taliban targets. The Afghan war that followed would turn into America’s longest war—20 years—a war that only ended on August 31.

In human terms, it was a very costly war, with 7,954 U.S. and NATO military and civilian personnel killed. Add to that the number of Afghan military and police deaths and those Afghan civilians who were killed, and the number climbs to 121,199 lives lost—not including enemy deaths. To this must be added the several thousand U.S. service personnel who committed suicide after returning home.

As for the financial cost, the war’s eventual price tag could reach as high as $6.4 trillion once the war debt is paid off.

Was the Afghan war worth these costs? And what does Jewish law have to say about it?

Of course, we had to go after al-Qaeda and run its leader and 9/11 mastermind Osama bin Laden to the ground, and to dispose of their protectors, the Taliban. Whether Jewish law would agree with that, however, is not so clear, because human life was involved.

A terrorist is considered to be a “rodef,” a pursuer, someone who pursues another person for the purpose of killing that person. On this, Jewish law is clear. In Exodus 22:1, we are taught: “If a thief is found breaking in, and he is struck so that he dies [assuming the house was pitch dark], there shall no blood be shed for him.” This means that the homeowner cannot be held liable for murder.

Our Sages of Blessed Memory interpreted this law more broadly: “If he comes to kill you, arise and kill him.” (See the Babylonian Talmud tractate B’rachot 58a.)

If a third party, not the intended victim, can prevent the rodef from committing the crime, this too is permissible. In fact, the Talmud makes it easier for someone to decide to be a rescuer by absolving him or her from responsibility for any inadvertent property damage that may result—property damage, not innocent lives. (See BT Bava Kamma 117b.)

Killing the rodef, however, must be the last resort. If another, non-fatal method would have worked, at least some of our Sages said that killing the pursuer would be an act of murder punishable by execution. (See BT Sanhedrin 57a-b.) While this is not a universally held opinion, it does show the extent to which human life is valued.

Indeed, a primary principle of Jewish law is pikuach nefesh (threat to life), as has been noted often in this column of late. Virtually nothing—not even Shabbat or the laws of kashrut—takes precedence over protecting human life.

The real problem, however, is not with whether it is permissible to kill a pursuer, but in knowing that the person who was killed really was a pursuer. By definition, that person must be seen to be murderously pursuing his intended victim. This is not the case when terrorist bases are attacked. Such attacks are based on circumstantial evidence alone—and, as the Talmud explains, “In capital cases, we do not allow conjecture.” (See BT Sanhedrin 37b.)

It is not enough to believe that a particular base is filled with terrorists who intend to take human life. The evidence must be irrefutable, and that is not possible in such cases. More to the point, such wholesale attacks inevitably lead to the shedding of innocent blood along with the guilty. Another principle of Jewish law, sh’fichut damim, the needless spilling of blood, covers that.

It would be comforting, of course, to say without hesitation that it is not permissible to kill innocent people in pursuit of a pursuer, but it is absurd to argue that halachah would tie one’s hands from pursuing terrorists to their lair or that it would not accept collateral damage—assuming, of course, that some serious effort is made to minimize the loss of innocent lives.

While it is protective of human life, Jewish law accepts that there are times when its stricter views must take a back seat. In such cases, halachah bows to what our law codes call “the king’s law.” Here is how Maimonides, the Rambam, explains this in his Mishneh Torah the Law of Kings, 3:10:

“A murderer against whom the evidence is not totally conclusive…, the king has permission to kill him and to repair society according to the needs of the moment…, and [to] stay the hand of the wicked of the world.”

The operative phrase is “the needs of the moment,” what today we would call exigent circumstances. The circumstances allowing the leader, by whatever title, to act outside normative halachah must be demonstrably urgent and necessary. In such cases, there is no need for a trial, or witnesses, or even conclusive proof. The purpose is deterrence, not punishment. If the “hand of the wicked of the world is stayed,” collateral damage could be seen as a necessary price to pay.

Pursuing al-Qaeda was halachically acceptable, in my view, regardless of the price. After all, a much heavier price was paid in lost lives on 9/11 because we did not wholeheartedly pursue Osama bin Laden and al-Qaeda after their connections to the 1993 World Trade Center bombing and the other acts of terrorist murder had become clear, and after the FBI had put Bin Laden high up on its Most Wanted Terrorist list.

The aftermath of the Afghan war and its heavy price undoubtedly will give future presidents and other world leaders pause the next time wholeheartedly pursuing terrorists is put on their agenda. That would be a mistake, because the price they need to consider is the one that would have to be paid for not doing so—a price that has a name: 9/11.

The Taliban gave al-Qaeda aid and comfort. The Taliban never flinched from protecting Osama bin Laden and his murderous minions even after 9/11. As Defense Secretary Lloyd Austin said on Thursday a week ago, now that the Taliban are back in power, al-Qaeda likely will regenerate itself.

The price we paid for not wanting to risk “kill[ing] 300 innocent women and children” in Kandahar, as Bill Clinton put it, resulted in 10 times as many innocents killed on 9/11—and that is not counting the more than 2,000 people who have died since then because they inhaled the toxic debris unleashed that day, or the over 8,000 to 10,000 others who developed cancer because of it. We had to fight an all-out war in Afghanistan, but we concentrated instead on nation-building. The war we fought was more of an afterthought, and it was a war we lost.

Now all we can do is pray that another terrible 9/11-type price will not have to be paid because of it.

About the Author
Shammai Engelmayer is rabbi emeritus of Congregation Beth Israel of the Palisades. He hosts adult Jewish education classes twice each week on Zoom, and his weekly “Keep the Faith” podcast may be heard on Apple Podcasts, iHeart Radio, and Stitcher, among other sites. Information on his classes and podcast is available at www.shammai.org.
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