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Capital Crime. Capital Punishment?

Murdered March 11, 2011: Udi (36), Ruth (35), Yoav (11), Elad (4), and Hadas (3 months) Fogel.

Since its founding, the only person ever to be executed by the state of Israel has been the notorious Nazi, Adolf Eichmann. But the brutal murders of Udi and Ruth Fogel and three of their young children this past March has the IDF weighing the possibility of seeking the death penalty for the Fogels' murderers, brothers Hakim and Amjad Awad. 

Relevant Links
The Death Penalty in Jewish Law  Dennis Rapps, Robert L. Weinberg, Nathan Lewin, Alyza D. Lewin, Jewish Law. Four jurists delineate the approach of the Jewish tradition to capital punishment.
Religion and the Death Penalty  Walter Berns, Weekly Standard. When duly or deliberately imposed, capital punishment strengthens the moral sentiments required by a self-governing community.

One wonders what punishment, aside from the most extreme one, can possibly be in order for the brutal slaughter of a mother, father, and three children. Still, such a sentence cannot be given, or even sought, without offering ample justification. If Israel were to sentence the Awad brothers to death, what would be the purpose: justice, vengeance, or deterrence? 

The history of capital punishment in the modern state of Israel begins with the British legal code inherited by the nascent state in 1948. Under that code, capital punishment was permitted for a variety of crimes, including some relatively minor offenses. The British law was abolished in 1954, under the influence, it is often claimed, of the Jewish legal tradition—specifically, the spirit embodied in one well-known talmudic passage:

The Sanhedrin (High Court) that executes one person in seven years is called murderous. Rabbi Elazar ben Azaria says this extends to one execution in seventy years. Rabbi Tarfon and Rabbi Akiva say, "If we had been among the Sanhedrin, no one would ever have been executed." (Makkot 7a)

Often, when this passage is evoked, people neglect to mention that Rabbi Simon ben Gamliel dissents, on grounds of deterrence: "such an attitude would increase bloodshed in Israel." 

But the mainstream argument endures to this day.  Accordingly, current Israeli law leans towards the talmudic scholars' abhorrence of the death penalty, but still allows for capital punishment in extreme cases: treason, incitement to war, aiding the enemy during wartime, crimes against the Jewish people, crimes against humanity, and war crimes. In addition, Israeli military courts have been given the freedom to demand the death penalty for particularly heinous acts of terrorism.  Until now, they've been extremely reluctant to do so—but that might soon change.

This prompts one to ask: why should the scales weigh differently for terrorist acts as opposed to "regular" crimes? The Israeli jurist and liberal thinker Amnon Rubinstein, an opponent of capital punishment under normal conditions, has argued that terrorists should be considered "racist murderers" who have reached such a level of brutality that their death constitutes a just response. One can easily argue that this is the case with the Awad brothers. But liberal politician and public intellectual Yossi Sarid argues against an investigation of motives, opposing the death penalty for terrorists on the grounds that, "every intentional act of murder, without exception, is incomparably cruel." 

As for the arguments that can be marshaled against capital punishment for terrorists, one claim is that the death penalty possesses little deterrent value but instead will create "martyrs" who will become heroes for Palestinian youth.  Likewise, calling for capital punishment is liable to invite international condemnation and pressure on Israel.

The calculus doesn't end there. It's possible that a death sentence for terrorists will be met by the murder of Israeli prisoners in enemy hands. What might happen to Gilad Shalit if the IDF openly presses for the death of the Awad brothers?  

But imprisoning the Awad brothers, even for a time, will likely create its own set of problems. Beginning with the "Jibril Deal" in 1985, the state of Israel has, again and again, released some of the vilest terrorists in prisoner exchanges. Practically, this means that there's little chance that a convicted terrorist sentenced to life in prison will actually serve his full term. This situation not only undermines the integrity of Israel's justice system, it also encourages terror organizations to kidnap more Israelis as bait for exchange. 

With all this at stake, why might capital punishment still be the appropriate response to the slaughter of the Fogel family? 

To answer that question, let's consider another abhorrent case, the murder of Dr. David Applebaum. Dr. Applebaum was the visionary founder of Terem, an organization of emergency care clinics that serve Jews and Arabs alike in the greater Jerusalem region. Thanks to Terem, countless lives have been saved and thousands of Israelis have received professional, convenient, and affordable emergency health care. In 2003, Dr. Applebaum and his daughter, who was to be married the next day, were murdered by a suicide bomber. The man who planned the attack, senior Hamas operative Maher Oudda, was finally arrested in 2010. In April of 2011, he was inexplicably exiled to Malaysia, where today he lives as a free man.

In asking for the death penalty for the Awad brothers, IDF prosecutors have an opportunity to let Israelis know that their confused system—the system that failed the Applebaums so grievously—stands unequivocally in the camp of the slaughtered innocent.

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David Alman on July 5, 2011 at 9:15 am (Reply)
Capital punishment ultimately legitimates murder. It is absurd to think that the taking of one kind of life constitutes a heinous crime punishable by execution and the taking of a "lesser" life, or committing murder in a "less" heinous way deserves a lesser punishment. In general, murder by our percieved enemies is always "heinous", while murder by us is always rational and tolerable. The life we take under "our" law inevitably leads to the taking of life under "their" law. The conceit that "we" are always the civilized partisans and that "they" are always the barbarian hordes is itself an incitement to murder.
It's a sad fact of life that the great majority of our emperors, kings and presidents felt they could not rule without executioners at their side. It's a sad commentary on us as citizens that we tolerate such rulers.

David Alman
Gilad Gevaryahu on July 5, 2011 at 9:20 am (Reply)
Aryeh Tepper wrote:

"Since its founding, the only person ever to be executed by the state of Israel has been the notorious Nazi, Adolf Eichmann."

This is an incorrect statement. On June 30, 1948 Captain Meir Tubiansky was executed by a military court of treason. It was a terrible mistake, and David Ben-Gurion and the government itself apologized to the family.
Benjamin Shieber on July 5, 2011 at 10:05 am (Reply)
The death penalty should be imposed on all terrorist murderers. Deterrence and respect for the victims requires it. Without it Israel is more subject to extortion to free killers by the use of kidnapping of Israelis, e.g. Shalit. Israel owes it to its citizens to impose the death penalty on terrorist killers.
Joseph Kaplan on July 5, 2011 at 1:52 pm (Reply)
This article omits (a) the argument that capital punishment should not be used because innocent people will end up being executed and (b) that in the one other case where a person was sentenced to capital punishment in Israel, it turned out that he was not guilty of the crime for which he was sentenced; fortunately, this as discovered before the punishment was carried out. (I am aware, of course, that Demjanjuk was an evil man who was guilty of other crimes during the Shoah.) And if you want to blame Applebaum's deaths on the decision to exchange terrorists for Israeli captives, go ahead and do so. As an American, I leave that complex and exceedingly difficult issue to Israelis to grapple with and decide. But if anything, it is that, and not failing to execute their murderer, that failed them.
nelsonsamuel on July 5, 2011 at 2:03 pm (Reply)
Look at the Ten Commandments! They are divided between sins against God and crimes against humanity. The penalty for most was death. Four methods of execution were established. Now, looking only at murder, the punishment was death. However, the avenger of the blood in a family had the duty to carry out "revenge" on the murderer. The article mentioned justice, vengeance or deterrence. First, there is no justice in this world. Secondly, vengeance is just as bad as the crime of murder. The only answer is deterrence. But, will deterrence stop one from committing the crime of murder, there is no way to prove that execution is a deterrence to the commission of the crime. However, if the murderer is executed, it is assured that the murderer will not commit another act of murder. As to executing these two, if convicted, I would not shed a tear for either one.
MADEL on July 5, 2011 at 2:51 pm (Reply)
The Torah prescribes the death penalty for ONLY two reasons (on the testimony of at least two witnesses or after a voluntary confession): 1) to teach the populace to refrain from the vile action in question, and 2) to guarantee the removal of the evil element from the populace. As usual, the Torah has it right!
Aryeh Tepper on July 6, 2011 at 1:57 am (Reply)

A clarification. Meir Tubiansky was killed by a kangaroo court, in the field, without any due process. The state of Israel didn't knowingly execute him - Isser Be'eri, the IDF's director of intelligence during the War of Independence, had Tubiansky killed.
Gilad Gevaryahu on July 6, 2011 at 9:59 am (Reply)
Two people were executed in Israel by a court verdict. I have acknowledged that while Eichmann deserved what he got, Tubiansky did not. It was, as Arye Tepper correctly stated, a kangaroo court. I for one, think that the person behind this awful process was General Binyamin Gibli, who was involved in other scandals.
Julian Tepper on July 8, 2011 at 12:45 pm (Reply)
Alman's unintended point, that punishment of evildoers by killing them, must be evenly meted out.

At the very least, the above persons who are so vehemently rightous in their opposition to punishing evildoers by killing them ought to join the issue by stating the alternative punishment they would deem as just and proportionate for the evildoers who killed the Fogel family. If they can sucessfully do that, instead of insulting the others with whom they disagree, they might be able to tilt the analysis in their direction.

Julian Tepper
Placitas,NM/Bethesda, MD
Joseph Kaplan on July 8, 2011 at 3:38 pm (Reply)
"join the issue by stating the alternative punishment they would deem as just and proportionate for the evildoers who killed the Fogel family. "

There is nothing that humans can do that would be "proportional"; that we must leave to a power greater than we. As for "just": life sentence without the possibility of parole is no less just than execution. However, that way we know that we -- that is, society that is meting out such punishments -- will never kill an innocent person.
David Alman on July 8, 2011 at 4:26 pm (Reply)
There was no "unintended point" in my post in opposition to the death penalty. I nowhere suggested that "meting" it out to everyone convicted of murder would be fair. Murder is a heinous act, whether committed by a professional criminal, a soldier in uniform or in a murder-for-pay arrangement in which an executioner is paid by a representative of the state. Those who believe executions have a deterrent effect must square their beliefs with murder statistics, which lend such beliefs no support at all.

Life imprisonment for murderers provides us with an opportunity for increasing our knowledge of aberrant human behavior and possible preventative or even curative and anti-recurrent measures. Executing murderers deprives us of ever learning whether early-recognition steps may prevent future murders. This is especially important in a society in which scores of thousands of young men and women are taught the art and science of murder every year by the government, a teaching that requires the students to deny the sanctity of the lives of others, as well as their own.

David Alman
nelsonsamuel on July 8, 2011 at 9:57 pm (Reply)
The two arabs who allegedly killed the Fogel family confessed to the crime. What more is needed? Only an executioneer. I have no compulsion to execute a murderer who confesses to the crime. Those who were responsible for the Tubiansky execution and if proven that there was wrong doing, should have been executed for the murder. Given an erroneus verdict is one thing but if verdict was know to be erroneus and the person was subsequently executed, then it is murder and should be treated accordingly.
Aryeh Tepper on July 10, 2011 at 1:46 am (Reply)
But Joseph, that just takes us back to square one, because hard-core terrorists in Israeli prisons have repeatedly been freed in the context of of prisoner exchanges with terror organizations. And sometimes not even in the context of prisoner exchanges. See Maher Oudda, above.
Martin on July 10, 2011 at 3:54 am (Reply)

The person responsible for the execution of Tubiansky was Isser Beeri, who headed the "Shai" (Sherut HaYidiot) in the Hagganah and was head of Military Intelligence for the IDF during Israel's War of Independence. He was cashiered from the military when it became apparent that he rail roaded Tubiansky.
SW on July 10, 2011 at 10:55 am (Reply)
An amusing set of comments, in that they represent the streams of thought which have flowed mightily throughout the last century's arguments about the death penalty within the whole Western world.

Given that the phrase "never kill an innocent person" comes from J Kaplan, is not an abortion the killing of "an innocent person?"

Is not the deadly "collateral damage" as we are seeing even in Iraq, Afghanistan, Libya, Pakistan, Yemen and Somalia, all current US and NATO hostilities, involved in the killing of an "innocent person?"

Is not every crime in which "an innocent person" dies perpetrated by a participant in "society?"

To blame nameless society and yet not blame popular governments in order to justify some killing seems inconsistent.

To blame nameless society and yet not blame whole political movements under the guise of "rights" and "choice" for the killing of millions seems inconsistent.

To cry out against nameless society while being unwilling to judge those with murderous guilt being proven by overwhelming eyewitness and forsensic evidence seems inconsistent.

To invoke a notion of being "just" about capital punishment while holding to any of the above which must be unjust by the same standard seems inconsistent.

Leaving all to a "greater power" while expecting that greater power to make difficult decisions seems inconsistent. If killing an "innocent person" is the measure, then all of us as members of societies in every nation are unjust somewhere, sometime and consistently deathly. All while waiting for a "greater power" to sort things out? Doesn't sound very "just" to me?
Joseph Kaplan on July 11, 2011 at 10:35 am (Reply)
"But Joseph, that just takes us back to square one, because hard-core terrorists in Israeli prisons have repeatedly been freed in the context of of prisoner exchanges with terror organizations. And sometimes not even in the context of prisoner exchanges."

AISI, that means that the policy of exchanging terorists is the one that has to be carefully examined and, if found lacking changed, not the policy against capital punishment.

SW: I'm not going to discuss abortion which is a completely different issue in my view. As to your other examples, there are differences between the intentional killing of a specific person and the unintentional, though unavoidable, killing resulting from collateral damage. Whether there are problems with collateral damage is a separate issue, but its anlysis, IMO, is different from capital punishment. And crimes where innocent people are killed are perpetrated by criminals, not by "society" or government. Criminals are evil and kill and must be punished. Governments are, hopefully, not evil and thus have different standards. And I'm perfectly "willing to judge those with murderous guilt," and punish them severely. What we're disagreeing about forms of punishment, not "judging." And as I made clear, I was not leaving all punishment to a greater power, I was leaving proportional punishment to that power because there's nothing we can do -- not even capital punishment -- that is truly proportional. I agree that we humans have to participate in judgoing and punishment without waiting for the greater power and I proposed that we do just that, with a maximum punishment of life without parole. Again, my point was narrowly focused on capital punishment where I think an alternative punishment accomplishes society's goal without the possibiulity of government intentionally killibg a person who is innocent.

"The two arabs who allegedly killed the Fogel family confessed to the crime. What more is needed?"

There have been many cases in the US where it has been conclusively established that innocent people have confessed to murder. Please note that I am NOT implying, in any way, that I think that the suspects who have been arrested for the Fogel murders are innocent or that there is any problem with or question about their confession. But as a matter of practical jurisprudence, confessions are far from the end of the story.

Gilad Gevaryahu on July 11, 2011 at 1:36 pm (Reply)
Binyamin Gibli (1919 – 2008) was the head of Israeli Military Intelligence from June 1950 to March 1955

In March 1948 he was appointed head of SHAI in Jerusalem. On 20 June 1948 he took part in the field court-martial of Meir Tubiansky at Beit Jiz.[5] Three other SHAI officers were present including SHAI chief Isser Be'eri. Gibli acted as presiding judge, prosecutor, witness and record-keeper. Tubiansky, 45 years old, was found guilty of transmitting information to the enemy and a few hours later executed by a Palmach firing squad. On 3 July 1949 David Ben Gurion issued a public exoneration of Tubiansky and restitution of his rank and rights. Four days later his body was re-buried on Mount Herzl. In November 1949, after a trial at which Gibli appeared as a witness for the prosecution, Be'eri was found guilty of manslaughter. [From Wikipedia]
Four people were involved in the case of Cap. Meir Tubiansky, the two main characters were indeed Isser Beeri and Binyamin Gibli. (Two other judges were David Keron and Avraham Kadron) An investigation committee on an unrelated case of an execution of a double agent by Isser was expanded to include the case of court case of Meir Tubiansky. Isser was convicted and pardoned on the very same case!. So even the process to clean the mess created by the Tubiansky fiasco was flawed and probably premeditated. DR. Avraham Gorali, the IDF chief legal officer maintained that the process of Tubiansky court process was legal. The AG charged him with defamation and Gorali won the case. It means that as the case stand it is far from clear that the process was flawed, although every one agrees that the wrong men was convicted. A key reason why Gibli walked off clean was that he was the lead witness against Isser, and at the end got his job.
Viiit on August 5, 2011 at 10:45 am (Reply)
Not only should the murderers be executed, their families should also be killed.
This is the most effective deterrent. The boys enjoyed full support of their community.
Killing the boys will not deter future terrorists, but killing their parents may.
David Alman on August 5, 2011 at 2:58 pm (Reply)
Viiit writes that not only should murderers be executed, but their parents as well. This, Viiit believes, may deter "terrorists". There are two issues here: capital punishment and "terrorists".

A government's labeling of some persons as "terrorists" is not an infallible judgment. The 18th century British government labelled Washington, Hamilton, Jefferson, Paine and many other colonists "terrorists" and those it caught were hanged. If the British had also hanged the parents of these "terrorists", would that have deterred the remaining "terrorists"? Thankfully, it didn't. But, of course, Viiit is not talking about "our" terrorists but about "their" "terrorists". In Berlin in the 1930's, the government declared that Jews were the equivalent of terrorists and had to be wiped out. In millions of cases, they even executed the parents of these "terrorists". Did this deter these Jewish "terrorists"? There are certainly terrorists in this world, but only the smallest percentage of those labelled "terrorists" by governments are actual "terrorists". Viiit's lack of skepticism about the branding of people as "terrorists" by our or any other government is astonishing.

Many of the comments make religious/Biblical references to support their advocacy of capital punishment. They appear to believe that God gave license to human beings to exercise the right to take life. The heretical belief that God is ignorant of the fallibility of humans, of their desperate and corrupting ambitions, their aptitude at falsification, their clever rationalizations to attach glory to the organized activity known as war, their monumental presumpitiveness and insolence in claiming God's allegiance to the flag of this or that country or nation, is the ultimate blasphemy. The claim that capital punishment is meted out by divine right is as hollow as the claim of past kings, including the one that we defied in the 18th century, that they ruled, and executed humans, by divine right.

Humans who feel we must execute other human beings for crimes or for vengeance or for land or for oil, should say so honestly, and not claim God's approval or license. If they cannot be honest about their motives in taking a license not given to them by God,
let them take measures short of capital punishment. But let them not bear false witness against God, that they acted by God's license or approval.

I'm not a Biblical scholar, but it seems to me that Commandment VI tells we may not kill, and lists no exceptions. True, the Torah appears to accept, under certain narrow circumstances, capital punishment. But we must remember that the Commandments were brought to us by Moses as written by God, whereas the Torah was handed down orally, at first by Moses and then by other authorities, and subsequently put into written form by another set of authorities. In short, one may say that the Commandments are the direct work of God, and the Torah is an elaboration of the Commandments by human beings. We can be certain of what the 6th Commandment says but we cannot have the same certainty about the relevant incidents of life-taking in the Torah. What humans write or transcribe is not always an unblemished truth.

David Alman
Julian Tepper on August 5, 2011 at 4:16 pm (Reply)
Dear David Altman:

Please publish an authoritative cite for "The 18th century British government labelled Washington, Hamilton, Jefferson, Paine and many other colonists "terrorists." Thank you.

Please also publish a vernacular of the day definition of terrorist, as used in the late 18th century. Thanks again.

Also, do you equate Berlin's use of "terrorist" with America's?

Do you acknowledge that Jews in Germany were trying to avoid being rounde up and murdered whereas Islamic terrorists in the U.S. or in Israel are not being rounded up and murdered?

Why did you feel it necessary to recite that you are not a Biblical [Bible?] scholar?

Are you a terrorism scholar? [Not that there is anything wrong, with not being one, at least not according to Jerry and Elaine.]

So, and all of that aside, what is your take on how terrorists should be punished when caught?

Julian Tepper
Placitas, NM/Bethesda, MD

David Alman on August 5, 2011 at 10:50 pm (Reply)
Dear Dr. Tepper,

I'll try to answer your questions as best as I can First, however, let me call your attention to the correct spelling of my surname: it is not spelled with a 't'.

1. You asked for a cite for the description by British authorities of George Washington et al as "terrorists". I've chosen Our Country, a history of America by an early American historian, Benson J. Lossing, LL.D. (1813-1891), published in 1877 by Johnson & MIles, New York. I chose him partly because he had access to many participants in our Revolution, and partly because he is obviously not a partisan of the current right or left or center at this time, and partly because he answers your next question about the "vernacular" of the day. On p. 707, following his description of the Boston Tea Party in 1774, he cites the House of Commons in London calling the Bostonians "mobocrats", "vile incendiaries" who "ought to be destroyed." Earlier, p. 606, he quotes King George as accusing the colonists of taking "measures subversive", and promised Parliament to defeat "those turbulent and seditious persons." He quotes a high religious official as describing the American colonists as "infidels and barbarians." (p. 647). Elsewhere, "insurrection" was used to describe American resistance to unfair taxation (p. 645) I believe the book is available at the NY General Library. You'll also find similar material in A People's History of the United States by a multi-award winning historian Howard Zinn. I also want to remind you that Benjamin Franklin said, "We must all hang together, or assuredly or we shall all hang separately." (at the signing of the Declaration of Independence)

Do I equate Berlin's use of "terrorist" with America's? Let me start my answer with a question: Do you consider the destruction of the native Indians as genocide? I do. I could also ask this question about the millions of black slaves who died on our soil, though not of old age. Yes, when I believe that my government uses the word "terrorist" to conceal a thirst for oil or land or whatever, I say so. I adhere to an old slogan: My country right or wrong, but when it's wrong I'll do everything in my power to make it right.

When you ask whether I acknowledge the horrors the Jews experienced in Germany, I hear a perversity in you. When I was growing up in the Lower East Side ghetto, a perverse question like that was usually settled under the Williamsburg Bridge, not far from the chicken slaughterhouse. Alas, I've become civilized. You ought to try becoming civilized too.

But I will answer the second part of your question. I suggest you go to the Website pages of the ACLU, where you'll find, if you exercise due diligence, many examples of American Muslims being rounded up, kept detained for years without trial because the government has no evidence against them. Are there American Muslims who are guilty of aiding terrorism? I'm sure there are and a few have been tried and punished. But because I'm an American full-time, which means not only when it suits me, I'm disturbed at a large number of American Muslims being detained without trial, or tried in secret courts. I don't believe any religion is specifically anti-American. I leave that belief to the anti-Semites.

I wrote that I wasn't a Biblical scholar because that's the truth. I wish I were.

I'm not a terrorism scholar either. I'm an American scholar.

Finally, terrorists, after they have been found guilty by a court that observes the Constitution, I think they should be imprisoned in accordance with the seriousness of what they were found guilty of. I don't believe in blanket sentences, in which one size fits all. I don't believe in the infallibility of judges or juries. Or of any human beings.

David Alman
SW on August 5, 2011 at 11:07 pm (Reply)
The moral absolutism of those who would delete capital punishment from the vocabulary of man is strange, given that this moral absolutism does not extend to other forms of killing of humans, from in utero to through euthanasia, and through the compassionate medium of rationing in socialized health care.

How odd that reverence for life in the case of heinous, vicious murderers is defended with such passion, while the proverbial blind eye glances away from other of man's killing -- to include that of those confessed mass murderers.

Those who decry moral absolutism in any other area of discource seem so blithe to trot it out as regards defending the worst and most violent in society. Schande, say I.
Joseph Kaplan on August 7, 2011 at 9:53 am (Reply)
Is it not a schande, or worse, when innocent people are executed by the state?

I have raised this question many times with those who support capital punishment. Most wiggle and waggle with one notable exception who said that's the price we have to pay for a system of justice. I've always admired this person's intellectual honesty although, in this area I still disagree with him. Although an imperfect justice system (we're only human) is a price we have to pay, we don't have to pay it by executing people; there are other options. I have no moral qualms about executing certain criminals. I do have moral qualms about executing innocent people and I don't know how we can do the first without doing the second.
Julian Tepper on August 7, 2011 at 10:06 am (Reply)
Dear David Alman,

Sorry for the typos in my post, including the "t" to which you refer. I won't mention that your response begins with a number 1, but lacks any subsequent numbering because, to do so, would take away from the substance of what I'd like to say.

I wondered how long it would take you to include in your response a personal denigration of me, that being the typical approach of today's liberals. I suppose I should congratulate you for making it to the fourth paragraph.

Further to your response. First, you said that the British government called certain of the founders of America (Washington, Hamilton, Jefferson, Paine) "terrorists." You put that word in quotes. I asked you for an authoritative cite. Your answer, which appears to have condensed a large amount of words into a small amount of thought, provided nothing of the sort. It made no mention of any of those four persons and, aside from King George (presumably the 3rd King George), you identify no "government" person. Furthermore, "mobocrats", "vile incendiaries" "subversive", "turbulent," "seditious," "infidels" "barbarians" and "insurrection[ists]" are words whose meanings do not accord with that of the word, "terrorist." Just whom, from among the non-combatant citizenry did those founders terrorize? Most anyone can tell you whom the jihadists have terrorized, even those who do not label themselves American scholars.

You said that "[i]n Berlin in the 1930's, the government declared that Jews were the equivalent of terrorists," and I asked you if you equated Berlin's use of "terrorist" with America's. You avoided answering that question.

I asked you if you acknowledge that Jews in Germany were trying to avoid being rounded up and murdered whereas Islamic terrorists in the U.S. or in Israel are not being rounded up and murdered? You ignored that question. In fact, you changed it to a different question, called me "perverse" for asking it (even though I didn't) and said that I was uncivilized, after complimenting yourself for not wanting to fight me under the Williamsburg bridge. That's not so scholarly, Mr. Alman, is it?

I asked you why did you feel it necessary to recite that you are not a Biblical [Bible?] scholar. While I admit that the question was patently sarcastic (because your comment to which it was in response demonstrated that you are no scholar of the Bible), the fact is that you missed that. So, I suppose, given your admission, we can all agree that you are no biblical scholar, and also not a scholar on terrorism.

Yet, you say that you are an American scholar. That is more than somewhat ambiguous, is it not? Does it mean a scholar who is an American; or a scholar of America. I would guess that the former is what you have in mind, which, of course, begs yet another question, to wit: what is the nature (i.e., subject) of your alleged scholarship?

I don't see the scholarship in your closing comment on infallibility. Would not application of that same fallibility reasoning (such as it is) also prevent a government from imposing a prison sentence, or any kind of punishment?

Of course we are fallible, Mr. Alman. All of us, everywhere. We make mistakes. But, lack of perfection is not the enemy of trying to protect and defend ourselves as best we know how.

Shredded of all of its misguided trappings, it appears that your only point is that you oppose capital punishment, while others do not. Both approaches to dealing with terrorists and murderers have their arguable validity. And all of those arguments have been made. No one, so far as I can tell has offered anything new in quite a long time. To pose something original on that subject would, indeed, comprise scholarship.

Julian Tepper
Placitas, NM/Bethesda, MD
Julian Tepper on August 7, 2011 at 12:59 pm (Reply)
Dear Mr. Alman,

I'd also like to comment on your July 8 posting.

You said that "[m]urder is a heinous act, whether committed by a professional criminal, a soldier in uniform or in a murder-for-pay arrangement in which an executioner is paid by a representative of the state."

Actually, murder is not an act. It is a legislated description of a crime that, in this country, we apply to an act after it occurs and after there is a courtroom finding of guilt of having committed that act. It is more than unscholarly, it is in fact anti-scholarly to apply that legislated description to traditional warfare killings and to a killing performed by an executioner. Once you do that, you give away any credence that your utterances may otherwise have presumptively enjoyed.

You make reference to an unnamed "society in which scores of thousands of young men and women are taught the art and science of murder every year by the government, a teaching that requires the students to deny the sanctity of the lives of others, as well as their own." I wish you had identified the society and the government that you had in mind.

But, in the likely event that you were referring to your own country, that is, the U.S.A., I have two observations:

First, it is not true that its young students, including those in our armed forces, "are taught the art and science of murder every year by the government, a teaching that requires the students to deny the sanctity of the lives of others, as well as their own." (I suppose you could have had in mind societies with Madrases in which youngsters are taught that it is good to kill Jews, Israelis and other infidels, and even to die in the process, to be followed by an ascension to a heaven where sexual delights will reward them, in connection with which they are taught how to don the close to the chest apparatus that will facilitate their efforts. I suppose, but, Mr. Alman, I also doubt.)

And second, please help me to understand your idea of the sanctity that should not be denied regarding the lives of persons such as bin Ladin, Hitler, Pol Pot and Stalin. What was the sanctity of their lives?

Stated somewhat differently: if in, say, 1941,as a Jewish anti-Nazi noncombatant and with your present-day David Alman capital punishment mind set, you had been alone in a room with Hitler with a gun in your hand, its muzzle resting against his cranium, would you have pulled the trigger?

Julian Tepper
Placitas, NM/Bethesda, MD
David Alman on August 7, 2011 at 1:24 pm (Reply)
I'll take just one of Julian Tepper's questions that he felt went unanswered: "Do you acknowledge that Jews in Germany were trying to avoid being rounded up and murdered whereas Islamic terrorists in the U.S. or in Israel are not being rounded up and murdered?"

I called this a "perverse" question. Maybe "snide" would have been a better adjective. Like, "Do you still beat your wife?" Asking me to acknowledge the plight of the Jews of Germany implies that I may be
a "denier", It's difficult to give a polite answer to this question. In fact, I can't because to do so gives respectability the implied slur.

So I'll go on to the second part of his question, in which Tepper writes ..."whereas Islamic terrorists in the U.S. or in Israel are not being rounded up and murdered." I suggested that Tepper get on the ACLU Website where he'll find cases in which our Department of Justice tried terrorists, got guilty verdicts and sentenced them to significant prison terms. I thank God that our Justice official did not simply "round up and murder" American Muslims on suspicion they were terrorists, as Tepper would like.
The greatest danger to Jews has always come from regimes that rounded up persons of minority faiths and murdered them, as they did in the old Polish shtetls. It happened here too, in the notorious Leo Frank case in 1913. Frank, a Jewish factory foreman in Atlanta, GA, was accused of a ritual murder of a non-Jewish girl. The evidence against him was that Jews needed ritually acquired blood for Passover. He was found guilty and sentenced to death. The Governor commuted his sentence to life imprisonment. 5000 Georgia citizens demonstrated against the commutation at the Governor's home. Two months later Frank was kidnapped from his prison cell by a mob of 25 citizens who wanted "justice" and hung Frank after giving him a beating.

That's what happens when blind anger targets groups of people of one or another religious faith: roundups and murder. When you deny the legal and human rights of any religious group, you deny the legal and human rights of all people, including Jews.

If Tepper would write something that persuaded me that he was seriously interested the legal and human rights of all people, Jews, Muslims, Catholics, Protestants, atheists and others, I would continue answering his questions. I don't ask him to agree with my opposition to capital punishment. But if he doesn't believe that every human being is entitled to the same legal and human rights, I have no wish to answer him.

David Alman
Julian Tepper on August 7, 2011 at 5:23 pm (Reply)
I won't comment on the intellectual dishonesty now embedded in your utterances and your utterly wrong allusions to snideness and perversity.

I'll just stick with this. You say that "[i]f Tepper would write something that persuaded me that he was seriously interested the legal and human rights of all people, Jews, Muslims, Catholics, Protestants, atheists and others, I would continue answering his questions. I don't ask him to agree with my opposition to capital punishment. But if he doesn't believe that every human being is entitled to the same legal and human rights, I have no wish to answer him."

Tell you what. Notwithstanding my belief that every human being similarly situation is entitled to the same legal and human rights, I'll still list my performance in those areas that you mention. Then, you list yours, and we'll let the reading public decide how to regard what we ask and what we write. Remember, you created this test, not me.

I was graduated from law school (Columbia) in 1965. During a preceding summer, I performed work on behalf of black farmers against whom the Department of Agriculture regularly practiced discrimination.

Following law school and admission to the New York Bar, I first worked in the Appellate and Trial Divisions of the New York Legal Aid Society, one of the best criminal law public defender groups in the nation. My clients were black, Jewish, Muslim, female, Puerto Rican, Hispanic, Catholic, Protestant and atheist, not to mention others. Because of my sideburns and my acquittal rate (including victorious suppression motions) I was well-known throughout that client population as "Burns," and was in much demand.

Then, I received a Ford Foundation Fellowship to study and perform research at Cambridge University, in England, from which I received a Dip. Crim. My area of interest was prisons, and my research took me to prisons in Poland (Pawiak) and Russia, not to mention throughout England.

When I returned to the U.S.A., I worked as a Trial Attorney in the U.S. Department of Justice's Civil Rights Division. Cases I worked on ended employment discrimination in the trucking industry, racial discrimination in certain building trade unions and school segregation statewide in Florida and Texas and in Indianapolis, Indiana. The people being discriminated against were black and Hispanic.

Then I became the first Director of the NLADA National Law Office, and was given a free rein to determine the areas of interest in which that office would operate. I selected prison reform, prisoners' rights and rights of persons mentally retarded and otherwise handicapped. I was a negotiator at the Attica takeover in 1971 (unsuccessfully) and at the D.C. Jail takeover in 1972 (successfully). I was a consultant to the Federal Bureau of prisons. During my tenure, the NLO brought or assisted in prison and jail cases throughout the continental United States. I wrote and collaborated on several prison reform articles. In the NLO's other area of practice, we brought the first contested Constitutional case demanding a right to an education suited to the needs of retarded and otherwise handicapped children (Mills v. Bd. of Education in the District of Columbia), followed shortly thereafter by MARC v. Maryland, both successfully. Those cases led to the massive federal special education funding now current in the U.S.A. under IDEA and other programs. We also brought famous and successful practices and conditions case against Willowbrook, the largest U.S. state-run school (read: institution) for persons mentally retarded, and also the famous Wyatt v. Stickney case regarding state-run mental illness and mental retardation institutions in Alabama.

After that, I ran, as Executive Director, the District of Columbia Neighborhood Legal Services Program, which provided legal services to indigent D.C. residents, most of whom were black or brown, all of whom were poor.

Then, and this brings me to 1974, I went into private practice. Over my many years in private practice I handled all sorts of discrimination and deprivation cases on behalf of blacks, browns, women, children, mentally deficient and other minorities, including white males, and persons of all groups and religions, including Jews, Muslims Protestants, Catholics, Buddhists, Gujarat, liberal, conservatives, independents and others too numerous to mention.

Okay. There. A somewhat brief synopsis that, I am sure to all other readers, if not to you as well, is persuasive of my long-term (I am now 70 years of age) serious interest in the legal and human rights of all people, Jews, Muslims, Catholics, Protestants, atheists and others.

Oh, but I left out that during this time I helped to raise five children, imbuing in them all a keen interest in ending wrongs perpetrated by evil-doers, regardless of which groups of people are on either side of the equation.

So, now, Mr. Alman, to use your own criterion, it is your turn to write something that persuades the rest of us that you are seriously interested the legal and human rights of all people, Jews, Muslims, Catholics, Protestants, atheists and others. Of course, what is required here is an accounting of your actions, your deeds, not only your thoughts, perusals or feelings. Let's see how your actions and deeds match up against mine in your arena of choice.

And then, Mr. Alman, as you suggested (if not promised), be a stand-up person and, as you intimated you might, answer my questions. All of them. Answer them as they were asked, not as you might re-phrase them. I’m especially interested to know if you would have squeezed that trigger.

Julian Tepper
Placitas, NM/Bethesda, MD
PS - you have no idea, and no basis for any idea of where I come out on the subject of capital punishment. That is because my interest is in the issue, not in the use facile arguments or rhetoric to try to win an argument, scholarly or otherwise.
David Marker on November 25, 2011 at 11:31 pm (Reply)
I have been familiar with Julian Tepper since reading Tom Wicker's book on the Attica uprising. Having lost Mr. Wicker to death today, I decided to Google Mr. Tepper to get caught up with someone whose moral compass is sturdy and whose ethics are beyond reproach. I am not surprised to see Mr. Tepper bringing clarity to the failed rationale of Mr. Alman. Thank you for your courage, Mr. Tepper. I am sorry I lost touch for so long.

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