Indivisibility and Divisibility within the U.S. Presidency

Corporeality IX: Indivisibility and Divisibility within the U.S. Presidency


Howard Adelman

Tomorrow, President’s Day, is on Monday, the 15th of February this year. George Washington’s birthday is on the 22nd of February. In fact, the holiday, for almost fifty years has been celebrated on the third Thursday of February to accommodate a public enamored with long weekends and retail outlets in love with scheduling great sales on such days. This year, President’s Day falls only two days after Abraham Lincoln’s birthday on the 13th of February. Anticipating such a fluctuation when the holiday was set for the third Monday in February, the day was renamed President’s Day from Washington’s birthday to celebrate both presidents. In reality, the day is now widely understood as celebrating the Office of the President and all its occupants rather than just one or two presidents.

President’s Day is now more akin to Victoria Day except that, in Canada, the day that used to be celebrated just as Queen Victoria’s birthday is now celebrated as the birthday of the current monarch as well, even though Queen Elizabeth II’s birthday falls on 21 April. The shift of one celebration to honouring the Office (U.S.) to the practice in Canada of celebrating the current monarch is telling. In Canada, the monarch is supposed to be a symbol of unity, but has become the symbol of Canada’s political fault line. The day that was once known in Quebec as Fête de la Reine became unofficially Fête de Dollard after the Quiet Revolution in the sixties and in 2003 officially became National Patriot’s Day. Our focus, however, is the United States presidency and the Canadian example will be used only as a foil.

So it is appropriate at this time to write about the nature of the office of the U.S. President and its current occupant. It is not as if all the occupants are worthy of celebration. I cite just one example, George W. Bush, Obama’s predecessor in that high office. He ranks among the worst presidents in American history. Hence, the understanding is that President’s Day honours the high office much more than all its occupants. In contrast, there are no celebrations of the birthdays of any Prime Minister of Canada or the office. One of the essential features of the American presidential office, as distinct from the Canadian Prime Minister’s office, is that the person who is president is both the political leader of the U.S.A. as well as Commander-in-Chief of the American armed forces. Two positions are embodied in one person. In America, we find the dilemma of the elected king’s two opposite functions. The issue in the U.S. throughout its history has been whether those two powers are separable or inseparable in the one person, and, if separable, which part rules the other. If it is the civilian part, how is control over the military role exercised or, surprisingly since unanticipated, a coup of the military by civilians prevented?

The George W. Bush presidency can correctly be viewed as the embodiment of the doctrine both of the indivisibility of the office of the U.S. President and the infallibility of the actions performed by that office when it comes to military matters when indivisibility becomes the order of the day. The President can do no wrong. Ironically, this doctrine was enunciated at a time when George W. Bush delegated all his Commander-in-Chief responsibilities to a small coterie of officials around him. He never engaged in any substantive discussions of military policy himself. Robert Blackwill, for example, who was the coordinator for strategic planning for Iraq in the National Security Council in 2004, was never asked anything about Iraq even as he traveled with Bush daily in the 2004 elections. The exclusive focus was re-election. Further, as everyone who has written on the subject acknowledges, advisory meetings of top officials were exercises in silent hostility – whether between Richard Armitage and Doug Feith or Colin Powell and Donald Rumsfeld. There were presentations but no substantive exchanges or discussions about policy decisions, thereby allowing Dick Cheney to determine policy by his control of the President. Condoleezza Rice tried but failed to facilitate such debates. George W. Bush was a Commander-in-Chief, but without the dignity such an office should have as he dithered and shook his legs up and down under the table in recognition that he was involved in discussions over and above his mental capacities.

Dick Cheney is usually viewed as the Rasputin influencing, exercising and, most importantly, defending that doctrine of presidential power. Not for George W. Bush, but for himself. George W. Bush is often, and, I believe, correctly seen as Charlie McCarthy, the ventriloquist dummy for Dick Cheney, Bush’s Edgar Bergen when it comes to foreign affairs. After all, George W. Bush consulted with only two officials before deciding o go to war in Iraq. Neither Dick Cheney nor Donald Rumsfeld were military officers, but policy advisers determined to use the military for their own political purposes. This was a case of the civilians seizing absolute control of the military for strictly political purposes.

David Graham in an article in The Atlantic (5 November 2015) reinforces this interpretation based on his interview with former President George H.W. Bush in anticipation of the latter’s forthcoming biography, Destiny and Power: The American Odyssey of George Herbert Walker Bush. The elder 91-year-old former President, George H.W. Bush, criticized the dominating Dick Cheney and the arrogant Ronald Rumsfeld for entrapping his son in initiating a foolish war for their own nefarious purposes. He referred to Cheney as, “Just iron-ass. His seeming knuckling under to the real hard-charging guys who want to fight about everything, use force to get our way in the Middle East,” to advance their own imperial agenda.

Cheney’s belief in the untrammelled power of the Commander-in-Chief went back to his days as George H.W. Bush’s Secretary of Defence. In the 1990 lead-up to the first Gulf War, President Bush overruled Cheney’s advice that the administration should go to war without Senate approval, not because the approval was in doubt, but because Cheney was committed to the doctrine of the indivisible and absolute power in matters of war of the Commander-in-Chief. Bush père criticized his son for being a patsy in the hands of those two manipulators. Over time, but too late, Bush-son became disenchanted, first with Rumsfeld and then even with Cheney. After the Republicans were whipped badly in the 2006 elections, Bush fired Rumsfeld. He also gradually became sceptical of the advice he was receiving from his Rasputin.

The exercise of supreme and unchallenged authority, ostensibly by the President, but, in reality, by Cheney, extended into legal matters as well as military ones. The U.S. Army Judge Advocate General’s Corps (the JAGs) operates a court system dealing with civil litigation, tort claims, labour law, the application of just war principles and international law, but Cheney was primarily concerned with suborning the Judge Advocates, the licensed attorneys representing military service personnel. The dictates of civilian lawyers in the Defense Department, who are political appointees more than individuals with high standards of professionalism, were to determine what JAGs could or could not do. This was another area in which there was an effort to make the rulings of the Commander-in-Chief unaccountable to the rule of law.  But the most heinous example was the rules for interrogating captured alleged terrorists and not permitting them to have independent counsel.

Obama’s presidency can be viewed as the embodiment of the doctrine both of the divisibility of the office of the U.S. President and the fallibility of the actions performed by that office.

The American Constitution insists that the highest military authority belongs to the highest civilian authority; the President is the First Admiral, the First Chief-of-Staff and Commander of the Air Force. David Luban called this “fused dominion” characteristic not only of the American presidential system, but of warlords and military dictators, ancient hero-rulers and feudal Western kings. In the fusion, could the Commander-in-Chief suborn the civilian head of state or would the civilian head of state ensure that the military remained subordinate to civilian rule as the writers of the Constitution intended? If he did the latter, could he interpret that principle of domestic rule over the military from a supervisory role and ensuring military actions were governed by civilian-set goals? Or could and would he, in effect, engage in a military coup, not of the military over civilian office, but of civilians over military professionals by seizing absolute control over the military unaccountable to any other political institution?

In Jay Bybee’s torture memo, under the George W. Bush administration, the indivisibility of the office is cited to justify the presidential exercise of untrammeled power in the area of security matters. “The Framers understood the Clause as investing the President with the fullest range of power understood at the time of the ratification of the Constitution as belonging to the military commander.” What I call the indivisibility of the highest office, David Luvan calls the interpretation, as forged by the Bush administration, the consolidationist theory as distinct from separationist doctrine. The consolidationist view is summarized in the briefing of the Justice Department Lawyer to Congress, “The President Is Always Right,” what I call the indivisibility doctrine is upheld. In this interpretation of Article 2 of the Constitution, in the global war on terror, Congress cannot second guess the President. The President is entitled to use any form of interrogation for enemy combatants deemed appropriate without Congressional oversight.

So Abu Ghraib is not just about the rights of enemy combatants in captivity; the issue goes to the very heart of the meaning of the American Constitution. In the consolidationist view, courts that generally oversee the protection of such rights must also defer to the Presidency because courts lack the requisite competence of the Commander-in-Chief and cannot and should not tie the hands of the President, even by applying a criterion forbidding “cruel and unusual punishment.” More expansively, that doctrine invades limitations on the courts even in domestic matters, for the doctrine includes an absence of geographical limits to its application since global terrorists can be found within America itself. (Cf. Padilla v. Bush) In this interpretation of the battlefield, the military, not the judiciary, determine the status of the individual as an enemy combatant. In other words, using the indivisibility principle, qua Commander-in-Chief, the powers of the President in military matters were unlimited.

Barack Obama, a former Professor of Constitutional Law, opposed the indivisibility principle for interpreting the powers of the President. Though both powers were consolidated in a single person, the doctrine of separation of powers still applied and the responsibilities of a President as the highest civilian authority in the land entailed that civilian responsibilities, and responsibilities to the democratic polity, overrode any of his military responsibilities. Though I certainly support Obama’s interpretation, it is not as a legal scholar, but as a philosopher. However, my interest here is not even defending the divisibility and separation of powers doctrine, as much as indicating that this is an issue in contention in the United States because historically the Americans copied British developments at the time where the king was both head of government and Commander-in-Chief. It would trap Obama in a paradox from which he could not escape. (Read tomorrow’s blog.) In Canada, where the system was forged a hundred years later, the divisibility of military and civilian power became the dominant conception without any equivocation.

No matter which position one takes in the United States, given the consolidation of powers in the same office, there will always be an inherent debate on the “broad substantive war powers” conferred on the President, a virtually non-exiting debate in Canada. Why in the U.S. does Barack Obama personally decide who will be the target of drone assassinations? Is this an exercise in machismo? If it were, then Obama would be directly undercutting his belief in the divisibility of powers and the subordination of military to civilian authority in the Office of the President. From my review of the literature, I am convinced that Obama does it, not to usurp the skills and prowess of the military in selecting targets, but because of the danger of the military exceeding their areas of competence and using their resources to eliminate political leaders with serious political consequences internationally. The separation of military and civilian decisions even extends to the battlefield and the requisite just war norm that civilians are not to be targeted intentionally and only may be unintentionally killed in proportion to the importance of the military target. However, as another unintended consequence, such a premise relies on making the CIA another branch of the military.

When it is unequivocal that a Canadian Prime Minister is not the Commander-in-Chief, the rule of civilian authority over military power is unambiguous. But when the two functions reside in the same one body, even when the President wants to reinforce the principle of the divisibility of powers and the supremacy of civilian over military rule, he is trapped by his responsibilities and has to stay up late deciding whether it is appropriate to target this person or that person with a drone strike. He becomes the number one assassin on the world stage. It is almost as if an American who becomes President cannot avoid becoming an imperial President to some degree.


With the Help of Alex Zisman



Torture 18.03.13


Howard Adelman

In my piece on The Gatekeepers, I deliberately left out one item because I wanted to discuss it separately. Avraham Shalom who served as head of Shin Bet from 1980-1986 mentioned it in the context of insisting that when it comes to terrorists, there is no morality with respect to their treatment. Candidly, he tells the story of some of the torture techniques used. One was shaking. In one case, he said, the victim was a slight person and when he was shaken he suffered from the equivalent of Shaken Baby Syndrome, the condition a young infant suffers when violently shaken. His brain was badly damaged and the suspect died after being tortured.

When we were going into the film, we crossed paths with Dr. Charles (Husky) Tator and his wife, Carol, who had just seen the film. Husky and I had been in medical school together. He is now a world renowned neurosurgeon. In recent years, he has received wide publicity because of the results of his research on the permanent damage done as a result of concussions in sports like football and hockey. His research, and the publicity about his research, can be credited with the ThinkFirst $1.5 million initiative, the partnership between The Canadian Centre for Ethics and Sport, the Coaching Association of Canada and Hockey Canada to reduce brain injuries in team sports in Canada. When I saw that scene I wished that Husky had gone to the 5:30 p.m. movie instead of the earlier showing so I could have had the benefit of his reflections on that scene.

My own reflections were about the ethics, or the lack of ethics, that Avraham Shalom expressed in discussing torture. He gave the usual reference in justifying torture to the ticking bomb theory – that intelligence people could not be bothered with moral scruples when a bomb may have been planted targeting civilians and time was of the essence. In The Landau Commission of Inquiry (Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity) set up by the Israeli government in 1987 following the death of the two captured hijackers referred to in yesterday’s blog that formed a key part of the film, The Gatekeepers, Supreme Court Justice Moshe Landau confirmed what Avraham Shalom had said in the movie, that Shin Bet or Shabak (formally the General Security Service or GSS) used physical force to interrogate prisoners. Further, the interrogators then covered that up by perjuring themselves when giving testimony in the trials of the Palestinians.

One of the most important outcomes of that Commission was a set of guidelines that governed interrogations in the future. The proposed guidelines were quickly approved by the Israeli cabinet in 1987 that allowed physical pressure on prisoners, but restricted that pressure to moderate means. These recommendations, specified in Appendix 1, were initially secret but were eventually leaked and published in 1991 by Human Rights Watch, "Prison Conditions in Israel and the Occupied Territories – A Middle East Watch Report."

The general principles, however, were available at the time. As the heads of Shin Bet following Avraham Shalom indicated, the use of violence against prisoners was considered acceptable when interrogating prisoners. The question was of degree. The Commission accepted the ticking time bomb theory under the principle of "the lesser evil" and said that actual torture could "be justified in order to uncover a bomb about to explode in a building full of people . . . whether the charge is certain to be detonated in five minutes or in five days." The violence allowed included threats and physical violence, such as slapping, but the Commission insisted that, "The means of pressure should principally take the form of non-violent psychological pressure through a vigorous and extensive interrogation, with the use of stratagems, including acts of deception. However, when these do not attain their purpose, the exertion of a moderate measure of physical pressure cannot be avoided." (my italics)

At the very least, the danger was that such techniques could slide into abhorrent practices, a danger that the Commission fully recognized. Each interrogator could take "matters into his own hands through the unbridled, arbitrary use of coercion against a suspect" thereby undermining the reputation of the state as a law abiding polity and protector of the rights of the citizen. To prevent this, "disproportionate exertion of pressure on the suspect" was deemed inadmissible. Five guidelines were specified. "The pressure must never reach the level of physical torture or maltreatment of the suspect or grievous harm to his honour which deprives him of his human dignity." (my italics) Second, the measures used must be proportionate to the immanence of the anticipated danger given the information available to the interrogator. Third, permitted physical and psychological pressures must be defined and limited in advance by binding directives. Fourth, implementation by interrogators must be subjected to strict supervision and monitoring. Fifth, in the case of even the slightest deviance from these guidelines, the interrogator’s superiors had to react swiftly and effectively, imposing punishment and even using criminal procedures against the interrogator if the interrogator was found to have exceeded the guidelines.

Ironically, the Landau Commission Report and the rapid adoption of its recommendations occurred just prior to the beginning of the first intifada triggered on 8 December 1987 when four Palestinian refugees in Jabalaya were hit and killed by an Israeli trucker, and rumours spread that the deaths were not accidental but a revenge killing for a businessman stabbed and murdered in Gaza two days previously. After all, in addition to the perceived abandonment by Egypt and Jordan, and propelled by large numbers of unemployed youth as well as restrictions on the use of land for building, the intifada was as much a revolt against mass detentions, torture, extrajudicial killings, house demolitions and deportations as against the occupation in general.

The Commission and adoption of the guidelines took place twenty-five years ago. By all accounts, and in my case studies on torture in Israel, the guidelines were effective in limiting the use of excessive force in dealing with prisoners and prisoner interrogation. Nevertheless, force was still permitted to extract confessions. Interrogation methods using moderate violent methods in the nineties following the Landau Commission Report continued. It would have been hard to conclude that these methods respected the dignity and honour of the prisoners. The methods were very moderate compared to many used under Avraham Shalom, but, in addition to shaking, poor food and the use of threats and curses, still included: "depriving the interrogee of sleep for a number of days by binding him or her in painful positions; playing loud music; covering their head with a filthy sack; exposing the interrogee to extreme heat and cold; tying them to a low chair, tilting forward; tightly cuffing the interrogee’s hands; having the interrogee stand, hands tied and drawn upwards; having the interrogee lie on his back on a high stool with his body arched backwards; forcing the interrogee to crouch on his toes with his hands tied behind him."

These results were published by Betselem, the Israeli Human Rights organization, in response to the decision of the Israeli Supreme Court that deemed that causing discomfort and putting pressure on the detainee were only lawful as side-effects of an interrogation; the techniques could not be used to "break" the detainee. The Supreme Court determined that the Shin Bet lacked any legal authority to use physical means of interrogation that cause the detainee to suffer and that are not "reasonable and fair". In 1997, the United Nations Committee Against Torture had already determined that the modified methods following the Landau Report still constituted torture in breach of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to which Israel was a signatory. Israel had ratified the convention in 1991. After the Supreme Court ruling, torture overwhelmingly ceased in the treatment of Palestinian prisoners and detainees. (Cf. The Public Committee Against Torture in Israel)

After the end of the first intifada, the number of Palestinian prisoners and administrative detainees held in Israeli jails declined dramatically until the outbreak of the second intifada when they rose to very high levels. As of the end of 2011, there were only 4,722 security prisoners left, 552 sentenced to life terms.

One would not have known this was the case from watching The Gatekeepers.

As an aside, and in reference to an earlier blog on Obama’s use of drones and targeted killings, The Public Committee Against Torture in Israel took the Israeli government before the Supreme Court on this issue. On 14 December 2006, the Supreme Court of Israel determined that a continuous situation of armed conflict existed between Israel and various Palestinian terrorist organizations. In considering whether the terrorists and their organizations were to be defined as combatants or civilians, the court concluded that it was necessary to obtain well-founded and verifiable information about civilians allegedly taking part in hostilities before attacking them. Civilians taking a direct part in hostilities may not be physically attacked if less harmful means (arrest, interrogation and trial) could be employed against them. Even if employing targeted killings is legal, the customary principle of proportionality must apply. Further, after any action, an independent investigation should be undertaken to ascertain whether proportionality and targeting norms had been respected. The lawfulness of such killings was to be determined on a case-by-case basis.

Compare and contrast this situation with the American use of "torture" and targeted assassinations after the Israeli Supreme Court had outlawed the use of torture to extract "confessions" from prisoners. On 13 November 2001, President George W. Bush signed an order entitled: "Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism". (Cf. Jill Lepore, "The Dark Ages: Terrorism, counterterrorism, and the law of torment" in The New Yorker18 March 2013) The order authorized the detention of suspected terrorists abroad, but they were not to be tried, if they were tried at all, under conventional military law in contrast to previous practice when they were tried domestically under civilian law. John Yoo, Deputy Assistant Attorney General of the United States, drafted the broad rules for America’s "enhanced interrogation techniques. These legal opinions were known as "The Torture Memos" or the "Bybee Memo" because, though drafted by Yoo, they were signed by Assistant Attorney General Jay S. Bybee, head of the Office of Legal Counsel of the United States Department of Justice. Though neither called detainees nor prisoners, these so-called "unlawful combatants" were tortured. Only the infliction of "severe pain" that contributed to loss of significant body function, very serious injury or death was said to constitute torture. A 14 March 2003 memo, just before the USA invaded Iraq on 19 March, concluded "that federal laws against torture, assault and maiming would not apply to the overseas interrogation of terror suspects."

These methods went well beyond those that were authorized by Avraham Shalom in the 1980s and subsequently banned in Israel after 1997, and included waterboarding and the use of dogs. By the next year, two "prisoners" had already died while being tortured at Bagram Air Base. Further, the evidence to bring the suspects to trial even before a military commission were simply paraphrases of what the suspects had admitted under torture. No decent court of law would have permitted them to be used as evidence. Further, the very conservative Supreme Court of the United States in June 2006 also ruled that the President lacked any legal authority to set up these military commissions to act as quasi-legal courts.

Two days after Obama took office, torture was banned.

[Tags: torture, Israel, law, detainees, prisoners,
terrorists, suspects, rule of law]

Deuteronomy 25:17-19.Dignity versus Humiliation.22.02.13

Deuteronomy 25:17-19 Dignity versus Humiliation 22.02.13

Parashah Ki Teitzei


Howard Adelman

This week Rabbi Dow Marmur wrote a blog on two meta-narratives of Jews. One is remembering Amalek, the arch-enemy of Jews and the epitome of enemies of Jews in all ages. For Netenyahu, Iran is a contemporary Amalek. In the second meta-narrative, Jews are commanded not to forget they were strangers in the land of Israel. Jews are obligated to treat strangers in their midst – Palestinian Israelis — with respect and dignity. Rabbi Marmur was hopeful that the new government of Israel, whenever it is formed, will both remember Amalek when dealing with Iran and not forget we were once strangers in Israel in fulfilling our obligations to Arab Israelis. (The blog is included at the end of my blog.)

Leaving aside the implications for the Israeli government, I accept Rabbi Marmur’s interpretation and want to go on and show how the two processes are interconnected.

The relevant passages are as follows:

17 Remember what Amelek did to you on your journey, after you left Egypt —

18 how, undeterred by fear of God, he surprised you on the march, when you were famished and weary, and cut down all the stragglers in your rear.

19 Therefore, when the LORD your God grants you safety from all your enemies around you, in the land that the LORD your God is giving you as a hereditary portion, you shall blot out the memory of Amalek from under heaven. Do not forget! (Deut. 25:17-19)

Before the paradoxical command both to remember Amalek and to blot out his memory, before these verses 17-19 in chapter 25 of Deuteronomy, we read instructions about how to remember Amalek and blot out his memory. The lessons are taught in the way we should respond to four different iconic types of situations.

If we go backwards from the verses referring to Amalek, the fourth instruction is not to cheat when using weights and measures (25: 13-15). If one employs perfect and just weights, then your days in Israel will be long. This is a section Rabbi Marmur could also have cited with respect to the obligations to treat Palestinian Israelis fairly.

13 Do not have two differing weights in your bag—one heavy, one light. 14 Do not have two differing measures in your house—one large, one small. 15 You must have accurate and honest weights and measures, so that you may live long in the land the Lord your God is giving you. 16 For the Lord your God detests anyone who does these things, anyone who deals dishonestly.

What has this to do with Amalek? As I read the four ways to respond, we have to begin with ourselves. If we remember that it is we who make Amalek possible, then we must start with our own behaviour and ensure that we are honest, transparent and fair. This will mean that in the external world, under the heavens, Amalek’s memory will be blotted out and we will not have to deal with him.

The third section is a tale about two men engaged in combat. A wife of one of the combatants, to help her husband in battle, seizes his opponent `by the secrets`.

11 If two men get into a fight with each other, and the wife of one comes up to save her husband from his antagonist and puts out her hand and seizes him by his genitals, 12 you shall cut off her hand; show no pity.

As a consequence, the community is instructed to have no pity and cut off her hand. Why cut off her hand? She was just helping her husband out. There are three reasons. She upset the fairness of the battle. Second, she did so by grabbing the opponent and presumably temporarily disabling him. Third, and most important, she did so in a way that brought shame on him and humiliated him in public by grabbing his genitals.

The second and longest section deals with the obligation of one brother to marry his brother`s wife if his brother dies and leaves his wife without a child in what is called a “levirate marriage”; the brother is obligated to co-habit with her so that she can bear a child and so that his brother`s name can be preserved in Israel. If the surviving brother refuses, the sister-in-law, in the presence of the elders, removes his shoe, spits in his face and humiliates him so that his house is thereafter remembered as “the house of him that had his shoe loosed” (v. 10). The loss of shoes denotes a loss of dignity, hence ‘The House of Loose Shoes.’

While in the fourth and third cases discussed above (examples 1 & 2), one is to guard against being humiliated and to be punished if you unfairly humiliate another, in this case, you are instructed to humiliate another in public because that other failed in his sacred duties to his brother. If you use unfair weights, the future of your family will be marked by humiliation. If you do not fulfill the duties owed to your barren widowed sister-in-law, your family also will bear the mark of shame when they are known as the "House of Loose Shoes".

The first section deals with the punishment to be meted out to the wicked in proportion to the degree of wickedness by beating him on the back, but no more than 40 stripes “lest being flogged further, to excess, your brother be degraded before your eyes” (v. 2).

1.When people have a dispute, they are to take it to court and the judges will decide the case, acquitting the innocent and condemning the guilty. 2 If the guilty person deserves to be beaten, the judge shall make them lie down and have them flogged in his presence with the number of lashes the crime deserves, 3 but the judge must not impose more than forty lashes. If the guilty party is flogged more than that, your fellow Israelite will be degraded in your eyes.

Then verse four follows which seems to have nothing to do with the verses that precede or follow. Verse 4 reads: "For our sakes, no doubt, this is written, that he who plows should plow in hope, and he who threshes in hope should be partaker of his hope." He who reaps is entitled to the rewards of his work, including a salary, rest days and vacation pay. And that includes those who witness to the faith.

That seems to have nothing to do with dignity and humiliation. What could an instruction about not muzzling an ox while it is threshing have to do with a brother avoiding his duty to his barren widowed sister-in-law and suffering the humiliation for that failure? What does it have to do with avoiding humiliating a person being punished by ensuring that the punishment is proportionate to the crime and not excessive? All the other example cases are about rights, duties and distributive justice.

I think the explanation is the following. The instruction can be about treating oxen fairly or about respecting the owner of the ox which you have borrowed or not working the ox to death, but it is unlikely to be about the duty to pay your church or synagogue ministers or missionaries. The plain reading of the text essentially says that you should not put a muzzle on a hardworking animal pulling the thresher. The ox is doing the work and should be entitled to eat. This may certainly be a humane gesture and/or a contractual one. But it is mainly a message that even a yoked animal needs to be respected and, as such, is a postscript to the first section.

The four examples offered can be summarized as follows:

Crime or Duty Punishment Rationale 1. -ve Wickedness Up to 39 lashes Proportionality Limits 2. +ve Impregnate brother`s widow If failure, loosen shoe, spit in face & diachronic penalty = House of Loose Shoes Humiliation in perpetuity No limit 3. -ve Wife humiliating her husband’s opponent Cut off the hand No pity Limit 4. +ve Fair weights and measure Long life in the land of promise Rewards No Limit

All four examples have to do with “brothers”, sometimes fraternal at other times "brother used in a metaphorical sense to express loyalty. There are limits to punishing the wicked lest you forget to treat him as your brother, i.e. lest you humiliate him and treat him as even less than an animal for even an animal needs to be treated with respect. The second tale has to do with two brothers who live together and are very close and, therefore, a surviving brother assumes obligations to the other brother`s widow if the latter dies without progeny. In the third case, two men are fighting; they may be the iconic Cain and Abel. However, under no circumstances is the wife entitled to interfere to try to disable the opponent of her husband and certainly not by grabbing her husband’s opponents by his balls. That would not just be an improper practice but a humiliating one as well. The fourth is a commandment of fairness and to regard all others as brothers.

The four cases can be represented as follows:

Brothers vs Enemies 1. Wicked are brothers – limits to punishment 3. Sworn enemies cannot be treated as brothers by the wife of one. Particular and Universal Brotherhood 2. Blood Brothers 4. All men brothers

The respective punishment and reward with respect to humiliation can be represented as follows:

1. Physical punishment of wicked (lashes) but no humiliation.

2. Obligation not to humiliate widowed sister-in-law, and if you do, she can humiliate you and your progeny and brand your family as The House of Loose Shoes.

3. Obligation not to humiliate oneself (and one`s family name) by interfering in a battle between your husband and an opponent by humiliating the opponent.

4. Obligation to maintain honour for one`s family name in perpetuity.

We have two positive duties: impregnating your childless widowed sister-in-law and using fair weights and measures. We have two prohibitions: not engaging in wickedness and, directed at women, not humiliating your husband’s opponent.

What is the relationship between this quadratic structured first part of the chapter and the duty not to forget Amalek? Recollect the three verses 17-19. You are first obligated to remember Amalek`s deeds. He killed three groups of fleeing Israelites who were in the rear: those who were slow; those who were enfeebled or handicapped, and those who were weary and faint. He killed the straggler, the frightened, and the weak and weary. You cannot allow Amalek to humiliate the weakest of your tribe and attack Israel at its soft spot. The message is clear; face your enemies with pride and strength and don`t forget Amalek so that Amalek will not earn favour with heaven.

The text is ambiguous whether Amalek was not God-fearing or whether the Israelites were lo yarei elohim, not God-fearing but I believe the whole text suggests the latter. First, if Amalek was not God-fearing, why would he attack Israel at its weakest point and in so cowardly a way. Second, the whole chapter is primarily about the Israelites disciplining themselves without engaging in disreputable practices and thereby incorporating Amalek within themselves. The latter is the real danger.

The injunction not to humiliate the other is not done just for the respect one must show the other. It is necessary for the respect one owes oneself. Douglas Cubbison in an abridged version of his book, The American Northern Theater Army in 1776: The Ruin and Reconstruction of the Continental Force, described how General Gates transformed a demoralized and undisciplined force, by applying the rule of 39 stripes to laggards, disobedient and undisciplined soldiers, literally whipping them into shape as a fighting force. The lesson to remember Amalek is to remember to engage in certain practices so one would not have to face Amalek and fear defeat. A healthy society does not humiliate its own by leaving the weak behind. A healthy and strong society is disciplined and respectful.

The common theme is humiliation as well as discipline and maintaining your physical strength and fighting capability. You must always respect the dignity of the other and maintain respect for your own dignity. In the Mishna (Avot 3:11) we are told that if you embarrass another person publicly, you lose your share in the world-to-come.The Talmud (Babylonian Talmud, Bava Metzia 58b) notes: “Whoever shames his fellow-man in public is considered as if he shed blood.” At another point, the Babylonian Talmud advises, “It is better for a person to throw himself into a fiery furnace than to embarrass a fellow human being in public.” (Babylonian Talmud, Kethubot 67b). (Jerusalem Talmud Berachot 3:1) (Cf. Hershey Friedman `Human Dignity in Jewish Law`…/HumanDignityJewish.htm) This entails not torturing your captives though they must be punished in proportion to each crime with a maximum penalty. Do not appease your enemy either. Treat the strangers who are not your co-nationals with respect and fairness.

Remembering Amalek is not obsessing with the evil other but preparing yourself through these general precepts so that Amalek can be forgotten. In Plato`s Laws, the Athenian stranger says that enemy combatants are not protected by the law. If that enemy insults your god and robs your temples, engrave his deeds on his face and hands so that he can bear these as a permanent mark of shame. And beat the enemy without limits. The treatment is the very opposite of the injunction against torture in the Torah or ensuring that punishments are proportionate to the crime committed. Always remember he is a brother. The punishment must not only be proportionate to the crime but proportionate to the person. The person must know always that you do own him and that your respect him as another human being. Never punish in anger. And never humiliate him.

Rabbi Dow Marmur`s blog follows.


In addition to the weekly portion, a second text will be read in synagogues this Shabbat. It’s about remembering Amalek, the arch-enemy of our Israelite ancestors and the epitome of all our enemies through the ages. The implication is that though the Biblical Amalekites lived a long time ago, their heirs are still here to harm us.

The message is particularly poignant in Israel today. It’s often articulated by the prime minister when he insists that the Iranian regime is today’s Amalek and that unless Israel deals with it resolutely, it and its Jewish citizens will be in mortal danger. The Holocaust is often invoked in this context, more for effect than accuracy.

But several potential coalition partners in the government Netanyahu is now trying to form don’t seem to want to deal only with the Iranian threat. They also pay attention to the social issues and seem to suggest that right values are as essential for Israel’s survival as military prowess. These include the reduction of the growing inequality in Israeli society and peace with the Palestinians. Their primary proof text wouldn’t be “Remember Amalek” but, rather, “Remember that you were strangers in the land of Egypt,” which obligates us to treat all human beings as God’s creatures.

The Amalek reference sees Israel as being in a state of crisis; the reference to remembering the stranger points to what theologians call covenant, the eternal bond between God and God’s people with the obligations this entails and a life style to match.

Yossi Klein Halevi, the gifted journalist and speaker, drew attention to these opposing texts and their implications at a conference last Tuesday at the Shalom Hartman Institute in Jerusalem of which he’s a Fellow. The conference was aptly called, “From Crisis to Covenant: Rethinking a Narrative for Israel.” Whereas the political Right is prone to cite the Amalek passage of crisis and the Left the covenantal references to having been strangers, Halevi believes that both are equally essential for Israel’s future.

Those who live by one text instead of both are under suspicion. Thus though nobody is in a position to challenge the analysis that Iran constitutes an existential threat to Israel, the almost exclusive stress on it may also be a convenient way of ignoring the many serious internal problems the country is facing. Similarly, to speak primarily about the price of cottage cheese and the non-payment of taxes by the rich, important though it is, may be a way of closing one’s eyes to even more urgent issues.

There’re indications that, despite his own apparent fixation with Iran, Netanyahu would like to form a government that reflects both texts. That’s probably why the first coalition agreement to be signed is with Tzipi Livni, who has put the so-called two-state solution in the centre of her platform. Netanyahu’s apparent wish to include Sheli Yachimovitch and her Labour Party’s social agenda may be of the same ilk.

That’s a positive development. It’s tempting to be cynical and say that as it’s much easier to point to a crisis than to seek to work out what it means to live up to our covenant with God by heeding Jewish teachings about the dignity of all humans and the primacy of peace and coexistence. However, cynicism, though often unavoidable, can easily become a self-fulfilling prophecy. Hence the need for balance and proportion.

It makes for hope that, even at times of crisis, those elected to govern the Jewish state won’t abandon Jewish values by making Amalek the only defining text.

Jerusalem 20.2.13 Dow Marmur

[Tag Deuteronomy 25, torture, humiliation, Amalek, dignity]

Parashat T`tzavveh.Deuteronomy.Torture.Humiliation 25.17.19 (RA’s comments).doc