Drashot for Mattot/Masei - Enjoy!

Refugees seeking asylum in Australia

Friday, 20 July 2012

To Give Sanctuary or Not

Last week, I groused jokingly that Australian politics seem rather boring to provide much grist for my pulpit speaking.  Then, of course I conceded that the tameness is more likely a reflection of my not yet catching the subtleties of the various policy discussions here.  A lot about Australian life comes with layers of subtleties attached.  This is especially so, compared to the public discourse in the USA.  In America, there’s a raw edge to just about every public exchange.  Here, the language and tenor of the disagreements often seem more civil.  Probably, returning to my lack of grounding in the subtleties, the operative word should be ‘seems.’  But in this regard I’m sure you will all assist over time with the Education of Rabbi Don.

As I watch the evening news, it has become clear to me that there is a particular public policy issue, about which Australians disagree deeply.  And that is the issue of whether – and how – asylum seekers are welcomed on your shores.  The public debate comes along with considerable name-calling.  That informs me that the disagreement is driven by raw emotions that make it difficult to get to the essence of the issue.  In this same way emotions create difficulties in the Public Square in my own country.  So here’s one American’s take on this particular issue:

Australia likes to see herself as an enlightened nation with regard to the acceptance of those who are persecuted in their home countries.  Successive governments have upheld definitions and principles hammered out in the United Nations.  But detractors from within, call Australia a racist and xenophobic country.  She can easily agree to UN proclamations, this argument holds, because she is after all an island nation and unlikely to experience floods of refugees.  Except that now, a constant flood of refugees is trying to reach Australia by boat.  According to these detractors, this brings out the ‘truth.’  Australia likes to sound ‘enlightened’ on the issue when there is no danger of being overwhelmed by refugees.  But Australia is at her heart an insular country who is ambivalent at best about sharing the good luck she enjoys.

It’s a complex issue, and the emotional tone of the discourse makes it difficult to get to the facts.  That makes it almost impossible to have the kind of conversation that might lead to coherent public policy.  As a result, timid politicians find creative ways to avoid taking bold steps to solve the problem.

In this week’s Torah reading, from Parashat Masei, we shall read of the Cities of Refuge.  Our Wandering-in-the-Desert narrative is coming to an end; next week we begin the reading of the Book of Deuteronomy, the final of the ‘Five Books of Moses.’  Throughout the past many weeks, we’ve seen instructions intended to set up a just and civil society in the Land that the Israelites shall soon occupy.

Refugees are on my mind this week, because we read tomorrow about the Cities of Refuge.  G-d instructs the Israelites to establish six such cities.  They will provide a sanctuary for any man who kills another accidentally.  This acknowledges the raw feelings one experiences upon the untimely death of someone close.  The Torah teaches us to value human life.  It informs us that the spilling of blood is a terrible thing.  The ‘natural’ instinct therefore, is to try to avenge the killing.  The Cities of Refuge provide a safeguard from vengeance killing of one who is guilty of involuntary manslaughter.  They provide a defence against more needless killing.  They provide no sanctuary for one who kills with malice.  The murderer cannot use the Cities of Refuge to avoid his penalty.  But more about that tomorrow.

So the Cities of Refuge are not about providing a place for the one who is in danger in his own country and thus feels he must flee to someone else’s country to stay alive.  But the principle behind the cities, is the avoidance of unnecessary death.  Therefore, the Parashah of the cities is entirely relevant to the conversation about providing safe refuge to asylum seekers in our age.

Jews are instinctively, and distinctively, sympathetic to the plight of refugees.  To be otherwise, we would have to be heartless.  After all, we have been the beneficiaries of open borders.  And the victims of closed borders.

In the late nineteenth century, Jewish refugees fled en masse from persecution in Eastern Europe.  We were able to find safe havens in the Western World, but particularly in the English-speaking world:  North America, the United Kingdom, and the nations of the Commonwealth.  We were not only accepted for entry in these places.  We flourished, and continue to flourish in these lands we’ve been fortunate to reach.

In the 1930’s the opposite occurred as Nazi hegemony spread over mainland Europe bringing severe persecution to Jewish populations.  Of course, the Death Factories of the Final Solution could not even have been imagined by most people before the 1940’s.  Even so, the history of the 1930’s shows ever-increasing marginalization of Jews in lands where they had formerly felt secure.  And for those who saw the Handwriting on the Wall and wanted out, the borders were largely closed.  But even as Nazi persecution of Jews and others reached its logical conclusion, there was little chance of finding a place of refuge.

Given this history, it is no surprise that the plight of refugees finds resonance among Jews.  The UPJ’s Jewish Religious Action and Advocacy Centre, the JRAAC, recently published a statement on the plight of Refugees and Asylum Seekers in Australia, Israel and around the world.  It invokes the well-known dictum found in Exodus 23.9: “You shall not oppress a stranger, for you know the feelings of the stranger, having yourselves been strangers in the land of Egypt.”

These words of Divine commandment have influenced Jews for thousands of years to identify with the World’s oppressed.  We sympathise not only with their physical condition but also their feelings as being homeless among the world’s nations.  At the same time, we recognise that not all refugees are valid seekers of political asylum.  At any given moment in history, there are myriads of individuals on the move not because of fears for their safety.  People flee their own countries for various reasons.  Perhaps they have committed serious crimes at home.  Or perhaps, they are simply in search of a better material life.

Here in Australia, as in other wealthy countries that are magnets for refugees of all kinds, there is a process in place to sort out the true political refugees from those looking for an easier life.  The former receive refugee status, while the latter are only accepted subject to specific limitations and quotas established by law and with input from the Public Square.  These quotas are the ammunition of those who claim Australia is racist.  But the JRAAC statement does not criticise the existence of these limitations and quotas.  It only asks that applicants for refugee status be accorded safe haven and every hospitality whilst their cases are investigated, in compliance with the UN position.  The JRAAC statement urges the Australian Government to operate within this parameter, and to work to make such determinations as quickly as possible.

As I said, a complex issue.  Does Australia have a humanitarian challenge on her hands?  She does for sure.  While boatloads of would-be refugees flounder in the Indian Ocean while trying to reach Australian soil, the country has a reasonable responsibility to deploy her navy to provide safety for these souls in danger.  Humanitarian concern – and pragmatism – also counsel for taking steps to avoid the departure of these boats, to find ways to process asylum seekers before they set sail.  These needs may logically lead to devoting more resources to the refugee problem.  That is, of course a hard sell in these economic times.

As a relative stranger to these shores myself, I’m not the one to say how this should be done.  But I do wish to say is that in this, as in all complex issues, it is not helpful to let emotions determine how we respond to one another.

Is Australia a ‘racist’ country?  I suspect not.  Okay, I’m pretty sure not.  And the application of the label ‘racist’ by those who believe Australia is not doing enough to address the plight of refugees, is not helpful.  In support of this assertion I can point to the public forum in the USA.

As you know, America made history almost four years ago by electing a president who has, in his own words, “a funny name . . . (and) who doesn’t look like all those other presidents on the dollar bills.”  President Obama said this jokingly, but the truth is that America voted for him, and put him in my nation’s highest office, despite – maybe even because of – how his name sounds and what he looks like.  And yet, every time someone in America criticises the President, for whatever reason, he’s in danger of being called ‘racist’ by someone within hearing.

This name-calling discounts that there are competing worldviews extant, and that President Obama represents but one such worldview.  Most of the President’s most vocal critics voice similar criticism of other politicians of the Left.  They probably didn’t have much positive to say about President Clinton in his day.  They are likely to have similarly negative reactions to those who represent this worldview in our House and Senate.  Labels such as ‘racist’ are thrown about liberally by participants in the public discourse as a way of shutting down the conversation by discrediting their detractors.

I don’t know the best response to the challenge of refugees and would-be refugees in Australia.  I haven’t been here long enough to absorb all the intricacies of the issue.  But I do know that it is not helpful to label those with whom you disagree with pejoratives such as ‘racist.’  It is hurtful, and unhelpful in sorting through complex issues, to dismiss your opponents and their concerns.  It also immunizes us to real racism when we see it; not good.

It is good that we Jews, given our history as a people and given the Torah’s wisdom, instinctively sympathise with the plight of those who are less fortunate than us.  How helpful it would be if we also applied the wisdom that the Talmud propounded in characterizing the dispute between the schools of Hillel and Shammai.    The two schools opposed one another bitterly in the competition to influence the emerging body of Jewish religious law.  Most decisions came down on the side of the students of Hillel.  But at the same time the Talmud proclaims in Eruvin 13b: Eilu ve’eilu divrei Elokim Chayim hen.  Both of these – the opinions of both opposing schools – are the words of the Living G-d.

Let’s each of us let our disagreements lead us to honest conversation about how to solve the Big Issues.  And let’s learn to see our opponents in the resulting debate as having the same good intentions that we have.  Let’s learn to step back from the emotions stirred up by the debate and say, “I disagree with you.” Rather than: “You’re racist.”  When we learn to do that, when we learn to see the good in the one who might be our opponent in any given issue, then we contribute to the solving of problems and to Tikkun Olam.  May we be agents for only good in the world around us.  Shabbat shalom. 

Saturday, 21 July 2012

Sanctuary for Murderers?

My country, the USA is often maligned in the international forum.  A certain amount of criticism is expected when one is a large and wealthy country whose policies have such a strong effect on the entire world.  Let’s be honest.  Australia is a wealthy country, but her population is comparatively small.  She is a country of 22 million people.  Any decision made in Australia, for Australians is not likely to echo around the world.  At least, not with the same impact of decisions made in my country of over 311 million, with the world’s largest economy.  So America is always in the sights of the world, and everything we do with which one disagrees, is examined and criticised.  Often bitterly.  Because America’s actions so impact the rest of the world, this criticism only goes with the territory.

A criticism one often hears about America, is that she is alone among the Western Nations in having capital punishment.  It is often stated, that this puts America in league with the likes of Iran, Russia, and China.  Meanwhile, ‘enlightened’ nations gave up executing criminals, no matter what their crimes, a long time ago.  None of the EU countries has Capital Punishment.  Nor does Canada, nor Australia.  Israel has it, but only for the crime of genocide.  And in Israel’s 64 years as a state, only one man – Adolph Eichmann – has ever been executed.

Even Mexico, the USA’s neighbour to the south which is often criticised as a backward and lawless country, does not execute criminals civilly.

Several arguments are frequently offered against execution of criminals.  The first argument is that people of colour are disproportionately represented among those sentenced to death.  The death penalty is therefore, inherently racist. 

The second argument says that criminals are sometimes exonerated years after being sentenced.  Sometimes new evidence, or new witnesses surface to shed light on old cases.  Sometimes it comes out long after the fact, that investigators and prosecutors either botched their cases or were even guilty of falsifying evidence.  The danger of the Death Penalty is clear.  If the sentence in such cases was life imprisonment, the wrongly-convicted can then at least have some of his life back.  But if the wrongly-convicted has been executed, that is obviously not possible. 

The final argument against capital punishment says that the very instinct to put murderers, and perhaps other violent offenders to death is wrong.  It represents at its heart, not an instinct for justice, but one for vengeance.  The instinct to execute criminals then is patently flawed from the get-go.

This morning’s Torah reading is about the very real instinct for vengeance.  It doesn’t repudiate this instinct.  Rather it counsels an amelioration of the instinct for vengeance in cases of accidental death.  It does so for one reason only; the shedding of innocent blood, even the blood of one who has killed, is a crime in and of itself.

G-d instructs the Israelites to establish six Cities of Refuge in the Land they are about to occupy and in which they will establish their state.  When it happens that one man accidentally kills another, he may flee to one of these cities.  Once the killer is within their sanctuary, the avenger is forbidden to pursue him.  He may live out his natural life within the City of Refuge without fear for his life.

There is a juxtaposition of this instruction to provide sanctuary for the accidental killing.  And that is that those found guilty of wilful, violent killing must be put to death.  The Cities of Refuge should not be seen as an argument against capital punishment.  They are not a ‘Get Out of Jail Free’ card for killers.  Rather, they should be seen as a limitation to the application of vengeance.

The provision of the Cities of Refuge acknowledges the very human instinct to avenge a killing.  The Torah does not repudiate this instinct.  What it does, is limit the capability for an avenger to strike.

Michael Dukakis, then governor of Massachusetts, ran for the US Presidency against George Herbert Walker Bush in 1988.  Governor Dukakis was widely criticised for a response he gave to a question from the moderator in one televised debate between the candidates.  Journalist Sam Donaldson asked Dukakis, who was a consistent critic of the Death Penalty, if he would think differently if evil struck his own household.  What would he think if his own wife were brutally attacked and raped?  It was a shocking question, but Dukakis’ response was perhaps more shocking to the nation.  Instead of acknowledging what an outrage such an attack would represent, Dukakis gave a measured and rational argument as to why the Death Penalty does not solve the problem of evil in our midst.

For his measured response to the perhaps-unfair question, Dukakis was criticised for being an unfeeling bureaucrat, rather than a man with the passions and instincts that other men share.

The Parashah of the Cities of Refuge acknowledges the instinct to vengeance.  It acknowledges this passion.  It does not repudiate it.  It does not deny human nature.  It simply places limits on one’s ability to avenge an accidental killing.  If the killer manages to reach one of the Cities, he may live unmolested therein.  Inside, he is protected from an avenger.  But this protection does not extend to the wilful killer, one guilty of aggravated murder.  The murderer, according to Jewish Law, is liable for the Death Penalty. Some would argue that the requirements set by Jewish Law made it virtually impossible for a court to carry out an execution, and there is probably truth in this argument.  If so, the point is that G-d in the Torah upheld the concept of a life for a life, while the Rabbis created further safeguards against the killing of the innocent.  No proponent of the Death Penalty thinks it should be applied automatically for certain classes of crimes.  In my own country, every conviction in a case where the prosecution is seeking the Death Penalty must be followed by what amounts to an additional trial.  This is the trial to determine if the Death Penalty should be applied in the particular case.

When one really thinks about the Cities of Refuge, one realizes that they really represent a prison.  If the accidental killer leaves their sanctuary, the avenger may kill him.  His sanctuary therefore represents a life sentence without parole, a permanent exile from one’s home and family, to a place full of unfortunate people running for their lives.  It’s not a killer’s paradise.  It does not free the accidental killer to an enviable life.  It is easy to see the essential unfairness of it.  But it is not about fairness at all.  The Cities of Refuge are about stopping the additional shedding of innocent blood.  Period.

The Parashah of the Cities sends the message that innocent blood shall not be shed.  Many people kill accidentally.  It is an unfortunate fact the one person may unintentionally cause the death of another through carelessness or negligence.  In contemporary civil law we have statutes that provide for penalties, sometimes severe, for those found guilty of unintentionally killing another.  Fines, community service, and incarceration serve to tell the killer and society that causing another’s death, even unintentionally, brings consequences.  The consequences are particularly severe in cases where the guilty party’s behaviour could have been predicted to cause death.  For example, when one drives intoxicated and kills someone in an accident.  A person convicted of vehicular manslaughter after driving drunk can get a particularly sever sentence.

But after the unintentional killer’s sentencing, the aggrieved family members of the one killed are not allowed to exact further vengeance.  This, even if they justifiably think the court’s sentence was too light.

In case you haven’t yet figured it out, this is not a sermon for Capital Punishment.  Nor is it a sermon against it.  As I pointed out earlier, many good arguments can be made against – and for – the Death Penalty.

I don’t agree that the Death Penalty is inherently racist, although to be sure racism of those involved in the justice system can unfairly influence when the Death Penalty is applied.  Likewise, I agree that there is the possibility that tainted evidence or testimony, or botched investigations, can unfairly influence a verdict in a capital trail.  That’s why there is, at least in America, a system of automatic appeals.  This causes the typical person sentenced to death, to be in prison at least 10 years – and in some case up to 20 years!

So my point is not whether the Death Penalty is a good idea or not.  My point is only that G-d, through the Torah acknowledges very real human instincts.  And the Torah’s legislation attempts to ameliorate the consequences of human instincts when they would lead to additional injustices.  The message of this Parashah, of the instruction to set up the Cities of Refuge, is quite simple.  The shedding of innocent blood is not just a stain on the perpetrator.  It is, rather a stain on the very land and its inhabitants.  The very ground cries out for the injustice of innocent blood spilled.  Therefore, life must be preserved.  This, even when very real and understandable emotions would lead one to seek to end another’s life.  And even if the means of preserving life, a life sentence to a City of Refuge is, in and of itself, unfair.  Because the shedding of blood – even innocently – carries consequences.  Let us understand the G-d’s intent through this teaching.  Let us always err, if we must, in favour of the preservation of life.  Shabbat shalom.