(2012/5772)

September 11, 2001, is a day remembered in infamy. The terrible loss of life in the vicious terrorist attacks upon the Twin Towers of the World Trade Center was an unforgettable tragedy; the attack upon the Pentagon exposed the vulnerability of the American defense. But it was the fourth, thwarted, attack that is remembered for the heroism of the victims and also raised a vey serious ethical concern. A passenger flight flying from Newark Airport to San Francisco, United Airlines Flight 93, was hijacked by terrorists some forty-five minutes into the flight. The hijackers breached the cockpit, overpowered the pilots and, taking control of the aircraft, directed it towards Washington, D.C. The hijackers’ intended target is thought to have been the White House or possibly the U.S. Capitol.

The terrorists’ plan apparently called for carrying out that attack simultaneously with the attacks upon the World Trade Center and the Pentagon. However, due to airport congestion, the airplane was delayed on the ground more than half an hour. During the course of the hijacking, flight attendants and passengers, using air phones and cell phones, succeeded in making numerous calls to family and friends as a result of which they learned of the other terrorist attacks. The passengers, apparently on the basis of a vote, determined to seize the controls of the plane from the hijackers. Of the ensuing events little is known with certainty. It is unclear whether the hijackers ultimately did crash the plane deliberately or whether they simply lost control. There is no reason to question the Halachic propriety of the actions taken by the passengers.

Far more complex is the issue of choosing to shooting down the plane and thereby causing the death of innocent passengers. Air Force and Air National Guard fighter jets were unable to intercept the planes headed to the World Trade Center and the Pentagon but indications are that they would have reached the fourth plane in time to prevent it from reaching Washington. The option of shooting down the commercial jet was given serious consideration and a decision to do so may actually have been reached. The question arises whether Halacha would sanction such action. Rav J. David Bleich (Tradition, Spring 2010, pages 78-86) argues that it would have been absolutely forbidden to do so. However, based on an essay written by Rav Itamar Warhaftig (Techumin 4:144-152), one could question this conclusion based on five sources.

Sacrificing one Life to Save Another

Normally Halacha forbids sacrificing one life to save another. This principle is articulated by the Mishnah (Oholot Chapter 7 Mishnah 6):

A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated. However, once the head of the baby has emerged, one cannot touch it as we are forbidden to kill one individual to save another (Ein Dochin Nefesh MiPenei Nefesh).

This principle is reinforced by the Talmud Yerushalmi (Terumot chapter eight) which states:

A group of individuals on a journey and are encountered by evildoers who said to them ‘Give us one member of your group or we shall kill the rest of you’ – let them all be killed and we must not release even one Jewish soul (Yemsaru Kulam VeAl Yemasru Lahem Nefesh Achat BeYisrael).

Accordingly, not only can we not kill an individual in order to save the life of another individual but we cannot even kill an individual in order to save the lives of numerous people.

A Possible Exception to the Rule

The Yerushalmi poses a serious question on this principle from the episode that is related in Shmuel II Chapter 20. The Navi records the story of a “wise woman of the town of Avel Beit Ma’achah” who hands over the rebel Sheva ben Bichri to King’s David’s general Yoav ben Tzeruyah. She did so in order to spare the entire town from being destroyed by Yoav ben Tzeruyah for harboring Sheva ben Bichri. The Navi apparently condones the actions of this woman as it refers to her with the complimentary title “wise woman”. Accordingly, the Yerushalmi is puzzled why she is complimented when she sacrificed the life of one in order to save the life of others.

The Yerushalmi cites two explanations for why the case of Sheva ben Bichri differs. Rav Yochanan explains that Sheva ben Bichri differs because he was designated for death by Yoav ben Tzeruyah. Reish Lakish explains that the situation of Sheva is different because according to Halacha, Sheva deserved the death penalty. He was deserving of such punishment due to his rebellion, as one who rebels against the king may be put to death (Rambam Hilchot Melachim 3:8).

The debate between Rav Yochanan and Reish Lakish remains unresolved as Rishonim debate as to whose opinion should be followed and the Rama (Yoreh De’ah chapter 147) cites both Rav Yochanan and Reish Lakish without deciding between the two opinions.

Rav Bleich’s Conclusion

Rav Bleich concludes from this passage in the Yerushalmi:

“It is evident that the discussion in the Palestinian Talmud is predicated upon the premise that it is forbidden to cause the loss of even hayyei sha’ah, i.e., a brief or limited period of longevity anticipation, of a particular individual in order to preserve the normal longevity anticipation of a multitude of individuals”.

In other words, absent unique considerations we are not permitted to kill the few in order to save the many, even though the few were destined to all die in a very short amount of time, like the passengers on the ill-fated United Flight 93 of 9/11/01.

Rav Bleich also cites evidence from a well-known passage (Bava Metzia 62a) as evidence that one cannot sacrifice the Chayei Sha’ah of the few in order to save the many. The Gemara presents a case in which two people are walking in a desert and one of them holds a container of water in which there is sufficient water for only one of the two individuals to survive. Ben Petura rules “better that the two of them die and one should not see the death of his fellow.” Rabi Akiva, though, argues that the one holding the water should drink since “one’s own life enjoys priority over his friend’s life.” The Gemara notes that while Ben Petura’s position was originally the accepted one, Rabi Akiva’s ruling was later accepted as normative.

Rav Bleich argues that even according to Rabi Akiva, it is only self-preservation that can excuse ignoring the Chayei Sha’ah of another. He explains that it would then follow that, if the container of water belongs to a third party who is not in danger of death as a result of dehydration, that person, even according to Rabi Akiva, must divide the water equally between the two persons at risk.

Rav Bleich writes:

“The principle that emerges is that a person dare not ignore the hayyei sha’ah of one putative victim even to carry out the complete rescue of another victim or even of many such victims. A fortiori (Kal VaChomer), an overt act having the effect of extinguishing even an ephemeral period of life-anticipation of even a single individual cannot be countenanced in order to save the lives of many”.

Possible Argument against Rav Bleich’s Conclusions – The Chazon Ish

We should note, however, that the Chazon Ish (Choshen Mishpat: Likkutim, no. 20, Bava Metzi’a 62a) disagrees with Rav Bleich and writes that only according to Ben Petura should the bystander split the water between the two persons at risk. However, the Chazon Ish rules that according to Rabi Akiva, the bystander should give the water to one of the individuals at risk in order to preserve the normal life expectancy of one of the parties, even at the expense of the Chayei Sha’ah of the other individual. Kal Vachomer, according to the Chazon Ish, one may ignore the Chayei Sha’ah of an individual in order to save the lives of many people at risk.

Moreover, the Chazon Ish (C.M. Sanhedrin, no. 25, s.v. VeZeh LeAyein) describes a situation in which a bystander witnesses the release of an arrow aimed at a large group of people. The bystander has the ability to rescue the intended victims by deflecting the arrow; however, if he does so, the arrow will claim a single victim who heretofore was endangered in no way whatsoever. The Chazon Ish raises the possibility that the bystander should deflect the arrow and cause the death of the one individual in order to save the lives of the many. He writes “perhaps we should make every effort to reduce the loss of Yisrael life as much as possible”. The Chazon Ish explains that one might consider the act of the bystander as fundamentally an act of rescue and not an act of murder. Thus, according to the Chazon Ish it is possible that it would have been permitted for the United States Air Force to shoot down United Flight 93 in order to preserve the lives of thousands of potential victims.

On the other hand, the Chazon Ish notes that this is worse than handing over a designated victim to bandits threatening a group as described in the aforementioned Yerushalmi. In the Chazon Ish’s hypothetical one directly kills an individual while in the scenario described by the Yerushalmi one only indirectly causes the death of the designated individual, by handing him to the bandits.

Conclusion

Next week, IY”H and B”N, we will present four more arguments that lead us to question Rav Bleich’s conclusion.