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May a Ritually Impure Jew Ascend to Har Habayis? Rabbi Ari Zivotofsky Explains

Tzarich Iyun: The Har HaBayit

    

Misconception:Many religious Jews do not visit Har HaBayit (the Temple Mount) today. This is because we are all presumed to be in a state of tumat met (ritual impurity due to “contact” with the dead), and a tamei met is prohibited from ascending Har HaBayit. (Since the removal of tumat met requires the use of the ashes of a parah adumah, which are currently not available, every Jew is presumed to be in this state of impurity.)

Fact: Although individuals with certain forms of ritual impurities are barred from all of Har HaBayit, a tamei met may enter the peripheral areas of Har HaBayit surrounding the central holier region that included the Temple compound. Thus, although we currently lack the means to remove tumat met, this is not really a deterrent for ascending Har HaBayit. Those who refrain from ascending do so because of other halachic or political concerns or because of archeological uncertainties.[1]

Background: Halachah recognizes different levels of kedushah (holiness) that relate to both time and place. Thus, Shabbat has more kedushah than yom tov, which in turn has more kedushah than chol hamoed. This is reflected, for example, in various differences among the holy days with regard to Havdalah texts and the number of aliyot in the Torah reading, as well as in the range of prohibited activities and the punishments associated with their violation. A similar hierarchy is relevant to the sanctity pertaining to space. The Mishnah (Keilim 1:6-9), for example, delineates ten levels of spatial kedushah within the Land of Israel, which is holier than all other lands. The first three levels are the following: walled cities in Israel, which are holier than the rest of the Land; Jerusalem, which is holier than other walled cities; and the Temple Mount, which is holier than Jerusalem. The remaining seven levels are areas of increasing sanctity within the Temple precinct. The level of sanctity of an area is reflected in the kinds of mitzvot that may be performed there as well as in the laws regarding entry.

The sanctified areas in Jerusalem correspond to the Israelite desert encampment (Tosefta, Keilim 1:10; Sifri, Naso 11; Rambam, Beit Habechirah 7:11; see Aruch Hashulchan Ha’atid, Beit Hamikdash 14:17, 36:7). Three concentric levels of sanctity existed in the encampment: the innermost area called Machaneh Shechinah, the Divine Camp that contained the mishkan (Tabernacle); Machaneh Leviyah, the encampment of the Levites that surrounded Machaneh Shechinah, and Machaneh Yisrael, an area beyond Machaneh Leviyah where the rest of the Jews encamped. When the Jews settled the Land of Israel these “camps” were represented by the following sanctified areas: the Azarah (Temple Courtyard), which started at Sha’ar Nikanor (the Nikanor Gate) and included the Beit Hamikdash building and the altar (Machaneh Shechinah); Har HaBayit (Machaneh Leviyah) and the rest of Jerusalem (Machaneh Yisrael).

The verses in Bamidbar 5:2-4 that describe the laws pertaining to the desert encampment would seem to indicate that individuals with all types of tumah (ritual impurity) were removed from all three camps. However, Chazal explain (Sifri, Naso: 4; Pesachim 67a-68a; Rambam, Biat Mikdash 3:1-2) the specific rules:

At one extreme, a metzorah (one who is afflicted with tzara’at) is excluded from Machaneh Yisrael; thus, he is not permitted anywhere in Jerusalem. At the other extreme, a tamei met is barred from Machaneh Shechinah but is permitted within Machaneh Leviyah.[2] Chazal derive this (Tosefta, Keilim 1:7; Pesachim 67a; Sotah 20b) from the fact that a corpse itself was brought into Machaneh Leviyah when Moshe, a Levite, transported Joseph’s bones from Egypt for burial in the Land of Israel (see Shemot 13:19; Nazir 45a; Rambam, Beit Habechirah 7:15 and Biat Mikdash 3:4). Thus, according to Biblical law, a tamei met may ascend Har HaBayit and proceed all the way up to the Azarah, until Sha’ar Nikanor. However, the rabbis added additional restrictions, and decreed that a tamei met may not go all the way to the Azarah but must stop at the Cheil,[3] the same boundary that applied to a non-Jew.[4] The Biblical prohibition of entering the Azarah and the Temple building itself for a tamei met incurs the severe punishment of karet (Bamidbar 19:13, 20; Makkot 14b; Rambam, Biat Mikdash 3:12-13 and Sefer Hamitzvot, negative 77, positive 31).

There is, however, another form of tumah to which additional restrictions apply, including the prohibition against entering any part of Har HaBayit. This applies to an individual in a state of tumah hayotzei megufo (an impurity that emanates from his body), and includes niddah (menstruation), yoledet (post-partum), zav, zavah[5] (Rambam, Beit Habechirah 7:15 and Biat Mikdash 3:3; Pesachim 67-68) and a ba’al keri (one who experienced a seminal emission). While a ba’al keri is usually included in this list, and is the most relevant form of tumah with regard to ascending Har HaBayit nowadays, the Mishnah (Keilim 1:8) and Tosefta (Keilim 1:7) both fail to mention the ba’al keri when listing those forbidden from ascending Har HaBayit.[6] The inclusion of the ba’al keri, however, is an explicit statement of Rabbi Yochanan (Pesachim 67b-68) and seems to be an explicit mishnah, as explained by the Gemara (Tamid 27b). Strangely, when listing those prohibited from ascending Har HaBayit, Rambam twice (Beit Habechirah 7:15 and Biat Mikdash 3:3) omits mention of the ba’al keri. Addressing this omission, the Mishnah Lemelech (Beit Habechirah 7:15; cf. Mishnah Lemelech, Biat Hamikdash 3:3) says Rambam maintains that the ba’al keri is, in fact, included and notes that the ba’al keri’s inclusion in the prohibition is implicit in the Rambam in two other places (Beit Habechirah 8:7 and his textual source in Biat Mikdash 3:8[7]). Alternatively, it is possible that Rambam maintains that the ba’al keri is indeed permitted on the peripheral areas of Har HaBayit (see Aruch Hashulchan Ha’atid; Biat Mikdash 36:10).[8]

A person experiencing one of these states of tumah who ascends Har HaBayit does not incur the penalty of karet but is guilty of violating a negative prohibition, for which he should receive lashes (Rambam, Biat Mikdash 3:8). In order to remove these types of tumah, one must wait a requisite period of time, immerse in a mikvah and wait for the sun to set.[9] During the period between immersion and sunset the individual has the status of a tvul yom, and is permitted on Har HaBayit but can go no further than the Ezrat Nashim (Women’s Courtyard) (Rambam, Biat Mikdash 3:5-6 and Beit Habechirah 7:17).[10]

In summary, the generally accepted halachot are as follows: a tamei met may ascend Har HaBayit, but may only proceed as far as the Cheil. Those in a state of tumah hayotzei megufo are barred from the entire Har HaBayit; once such a person becomes a tvul yom, he is permitted on most of Har HaBayit.

All of the above regulations were in effect during the time of the Temple. The question is, Are they applicable today? This depends on whether the area where the Temple stood retained its sanctity despite the destruction of the Beit Hamikdash,[11] which is a subject of debate among halachic authorities. Rambam (Beit Habechirah 6:14-15) and many other Rishonim[12] and Acharonim[13] maintain that the sanctity of the Temple persists, and thus just as one may theoretically offer sacrifices there today, were a tamei met to enter the area of the mikdash, he would still incur the punishment of karet. These sources assert that the initial sanctification of the area by King Solomon is in effect; he sanctified it for his time and forever after. Rambam states:

Even though the mikdash is today destroyed due to our sins, one is obligated in its reverence just as when it was standing. One should not enter except where he is permitted, and should not sit in the Azarah and not act with levity opposite the Eastern Gate. … Even though it is destroyed it still possesses its holiness (Beit Habechirah 7:7).

Opposing Rambam, Ra’avad (Beit Habechirah 6:14) opines that since the Beit Hamikdash was destroyed, the original sanctity of the area is no longer in effect and therefore the punishment of karet no longer applies. Some understand Ra’avad as disagreeing with Rambam only with respect to the actual punishment of karet; according to this reading, he concurs with Rambam in that the restrictions pertaining to Har HaBayit still stand—or at the very least, he is uncertain as to whether these restrictions still apply and therefore does not permit entry ab initio. Others are of the opinion that Ra’avad permits free entry to all of Har HaBayit.[14]

Today, Israel’s Chief Rabbinate and many rabbis forbid Jews from ascending Har HaBayit, and thus no shul or other Jewish structure is found there. Some rabbis do permit entry (the number of religious Jews who visit is increasing, but is still quite small). But, seemingly, Jews did not always avoid the area.[15] It is reported that with the Muslim conquest in 638 CE, the Jews were permitted to build a shul and beit midrash on Har HaBayit. Ben-Zion Dinburg,[16] a former Israeli minister of education, marshals numerous obscure sources to demonstrate that a shul existed on Har HaBayit between the seventh and eleventh centuries. Rabbi Shlomo Goren (Sefer Har HaBayit [5752], chap. 26) finds evidence of a Jewish presence on Har HaBayit even before the Muslim conquest. Meiri (1249-1315; Shavuot 16a) wrote that he heard that in his time there was a widespread custom to ascend Har HaBayit. The Radvaz (1479-1573; 2:691) assumed that the rock in the Dome of the Rock is where the aron kodesh stood and he calculated how far one must be from that point; he then permitted entry to the rest of Har HaBayit. Rabbi Yechiel Michel Tuketchinsky (d. 1956), writing pre-Six-Day War (Ir Hakodesh Vehamikdash, sec. 5, pp. 80-81), observes that in the time of the Beit Hamikdash there were shuls on Har HaBayit. Furthermore, he says that in our pre-Messianic period, when we get permission to build (and the ability to do so), there is plenty of available space on Har HaBayit on which a shul can be built. Indeed, in the days of the Beit Hamikdash, it was probably not unusual for a tamei met to remove his other forms of tumah and to ascend Har HaBayit as a tvul yom. In other words, these individuals realized (as some do today) that while certain areas of Har HaBayitmay be off limits, simply being on Har HaBayit is valuable in and of itself. Indeed, the remains of numerous Second Temple period mikvaot have been found in close proximity to Har HaBayit. Although their precise purpose is unclear, it has been reasonably suggested[17] that they were used by the hordes of people who were in a state of tumat met and tumah hayotzei megufo but who nevertheless wanted to ascend to the areas of Har HaBayit accessible to one with the status of a tvul yom.

Those religious Jews who ascend Har HaBayit today abide by the ruling of Rambam, who states that entering the areas where the Azarah and the Beit Hamikdash itself stood still incurs the punishment of karet.[18] However, there is one important aspect of this discussion that has not yet been addressed: the exact location of the historical Har HaBayit (the area referred to as Har HaBayit during the time of the Beit Hamikdash). Where exactly was the historical Har HaBayit located?[19] The mishnah in Middot (2:1) states that Har HaBayit was 500 by 500 amot, an area of approximately 62,500 square meters. (An amah is roughly a half-meter.) Today the area referred to as Har HaBayit is a rectangle that is twice as long north-south as it is east-west, covering an area of about 145,500 square meters. Herod had built additions to Har HaBayit in the north and south, creating “spectator” sections for non-Jews. Thus, those who permit entry to the area suggest there are regions in the south (near the El-Aqsa mosque) and north that were clearly added by Herod. If this is correct, then anyone can enter those areas, even one who has not gone to a mikvah. Those who object to ascending Har HaBayit at all assert that there is no way to know with certainty—and archeological evidence can never definitively determine—the precise location of the Beit Hamikdash. Thus, even though a tamei met may technically ascend Har HaBayit, because of the severe punishment (karet) he would face were he to mistakenly enter the Azarah, one should avoid the entire area.[20] Therefore some authorities (such as Rabbi Ovadiah Yosef ) state that one should not ascend Har HaBayit because we are in a state of tumat met; these authorities agree that a tamei met is not barred from the peripheral areas of Har HaBayit, but they maintain that when one is in a state of tumat met, he should avoid all of Har HaBayit lest he stray into forbidden areas.

Those who rule permissively note that aside from the Herodian additions, there are many areas on Har HaBayit that a tvul yom may enter. The forbidden zone (where a tamei met is not permitted to enter) is a rectangle-shaped area of about 357 amot east-west by 165 amot north-south. Currently, Har HaBayit’s rectangular-shaped compound measures about 500 amot east-west and close to 1,000 amot north-south, thus providing a large margin of error when calculating where one may go.

Some authorities suggest totally avoiding the entire Har HaBayit so as not to potentially violate a different commandment—that of mora mikdash, showing proper awe and reverence for the Beit Hamikdash (Vayikra 19:30; Rambam, Beit Habechirah 7:1-7). This includes (Berachot 54a, 62b; Yevamot 6a-b) not entering Har HaBayit while wearing leather shoes or with a walking stick or purse. Also, one may not spit, have dust on one’s feet, use Har HaBayit as a shortcut or engage in idle chatter while there (Aruch Hashulchan Ha’atid, Hilchot Beit Hamikdash 14: 1-14). Rambam also adds that mora mikdash bars even a ritually pure person from entering the area for no purpose.

In recent years, the question regarding the advisability of ascending Har HaBayit under present circumstances has been addressed in great detail by many leading rabbis. Those who forbid entering the area do so because of the fear of violating the laws pertaining to its sanctity. Advocates insist on extreme caution and intense reverence, but see a value in establishing a connection between the Jewish people and the awesome holiness of Judaism’s most sanctified site. May we be zocheh to the day when there will be a rebuilt Beit Hamikdash on Har HaBayit and all our questions will be answered by those who sit in the Lishkat Hagazit (the Office of Hewn Stone, where the Sanhedrin sat).

————————–
Notes

1. This article is not taking a position on the propriety of ascending Har HaBayit nowadays. If, however, one chooses to ascend, he must be careful to restrict himself to certain areas and to immerse properly in a mikvah prior to going. Furthermore, one must adhere to the laws relating to mora mikdash, showing awe and reverence for the Beit Hamikdash, and should ascend under the guidance of an expert in the topic.

2. The Aruch Hashulchan Ha’atid (Biat Mikdash 36:8-9) attempts to explain the fact that tumat met—which in many ways is the most stringent type of tumah, as evidenced by its duration, means of purification and methods of transmittal—is not the most restrictive with regard to entering holy places.

3. The Cheil, which surrounded the entire perimeter of the Beit Hamikdash, was either an open space ten amot wide or a wall ten amot high (Aruch Hashulchan Ha’atid, Beit Hamikdash 11:5; Rabbi Shlomo Goren, Sefer Har HaBayit [5752], chap. 24).

4. Non-Jews could not proceed any further than a tamei met (Mishnah Keilim 1:8; Rambam, Biat Hamikdash 3:5). Note that this is not because of tumah, as a non-Jew cannot become tamei (Rambam, Hilchot Tumat Hamet 1:13). Josephus wrote (Antiquities 15:417; Wars 5:193, 6:124; cf. Antiquities 12:145) that there were warning signs posted at regular intervals along the soreg (the stone balustrade surrounding the sacred precinct), some in Greek and some in Latin, warning non-Jews to keep away. A partial inscription from such a sign discovered by archeologists can be seen in the Rockefeller Museum in Jerusalem. A more complete sign is in the Istanbul Archeological Museum. It reads: “No foreigner may enter within the railing and enclosure that surround the Temple. Anyone apprehended shall have himself to blame for his consequent death.”

Based on this halachah the Chief Rabbinate should probably be more strict about keeping non-Jews off Har HaBayit than about keeping out ritually impure Jews. In light of this, Rabbi Shlomo Goren, during his tenure as chief rabbi of Israel, proposed closing the central part of Har HaBayit to all. See Yoel Cohen, “The Political Role of the Israeli Chief Rabbinate in the Temple Mount Question,” Jewish Political Studies Review 11, 1-2 (1999): n. 61. See the article by Rabbi Eliyahu Bakshi-Doron (Techumin 14 [1994]: 11-19) on Jews discouraging non-Jews from entering the area and TzitzEliezer 10:1:10 for more on the subject.

5. Due to the complexity and the sensitivity of the laws of niddah, zavah and post-coital women, even those contemporary authorities who advocate going on Har HaBayit are hesitant about encouraging women to make the pilgrimage.

6. The implication of Deuteronomy 23:11 would seem to be that a ba’al keri is barred from Machaneh Leviyah. See Ha’emek Davar.

7. It seems likewise from his phrasing in Sefer Hamitzvot, negative 78.

8. See Radak to Yechezkel 42:16, who also omits mentioning the ba’al keri.

9. For some of these ritual impurities—zav, zavah and yoledet—a sacrificial requirement may be necessary as well in order to achieve complete purification.

10. The Talmud (Yevamot 7b) observes that there was a rabbinic enactment barring a tvul yom from Machaneh Leviyah, which seems to include the entire Har HaBayit. Tosafot (Zevachim 32a, s.v. u’vatemaim and Pesachim 92a, s.v. tvul yom) explain that the gemara means that a tvul yom is barred from the Ezrat Nashim, the part of Macheneh Leviyah closest to the Machaneh Shechinah, and not from the entire Har HaBayit. Rambam (Biat Hamikdash 3:6 and Beit Habechirah 7:17) simply says that a tvul yom may not enter the Ezrat Nashim and that by rabbinic fiat he is barred from Machaneh Leviyah. From this statement, it would seem that Rambam, at least with regard to this halachah, does not consider the entire Har HaBayit as constituting Machaneh Leviyah. See also the Aruch Hashulchan Ha’atid (Beit Hamikdash 14:26).

11. See discussion in Shavuot 16a; Gra, YD 331:205.

12. See Rabbi Ovadiah Yosef, Yechave Da’at 1:25, for a list that includes Tosafot, Sefer Yeri’im, Smag, Rosh, Ritvah, Sefer Hachinuch and others.

13. See ibid. for a list that includes the Avnei Nezer, Binyan Tzion, Ridvaz, Rabbi Avraham Yitzchak HaCohen Kook, as well as MA 561:2 and MB 561:5.

14. For a discussion of Ra’avad’s position, see Binyan Tzion 2; Mishpat Kohen no. 96 and Rabbi Shlomo Goren, chap. 8 in Sefer Har HaBayit.

15. There are those who assert that Rambam davened on Har HaBayit. This is based on an autobiographical letter attributed to Rambam about his travels in the Land of Israel (see Yitzchak Shilat, ed., Iggerot HaRambam, vol. 1 [Jerusalem, 5747], 224-226). However, the letter’s authenticity is questionable. Even if Rambam wrote it, his reference to Har HaBayit is somewhat vague. Some recent posekim—primarily those opposed to ascending Har HaBayit—suggest that Rambam davened in a synagogue located near, not on, Har HaBayit (Minchat Yitzchak 5:1; Tzitz Eliezer 10:1:54-55, 11:15:6). See Rabbi Goren, Sefer Har HaBayit, 350-351.

16. Ben-Zion Dinburg, “Beit Tefillah uMidrash LeYehudim al Har HaBayit,” Zion, vol. 3 (5689): 54-87; cf. Yehudah Yitzchak Yechezkel, “HaKotel HaMa’aravi,” ibid., 95-163

17. Yonatan Adler, “The Ritual Baths Near the Temple Mount and Extra-Purification Before Entering the Temple Courts: A Reply to Eyal Regev,” Israel Exploration Journal 56, no. 2 (2006): 209-215

18. Unlike that which is implied by Meiri, who states that people used to ascend Har HaBayit in his day because of the position of Ra’avad (who states the punishment of karet no longer applied). So, too, Radvaz permitted people to ascend, partially relying on the position of Ra’avad. Today Ra’avad’s position is no longer given weight even by those who ascend Har HaBayit.

19. Some authorities assume the Kotel was a wall of the Azarah. This would mean that the Kotel Plaza is a part of Har HaBayit. See Yabia Omer 5, YD: 27, for a discussion and refutation of this position.

20. In addition to the “technical” questions with regard to ascending Har HaBayit, others see spiritual issues. Rabbi Avraham Yitzchak HaCohen Kook wrote (Iggerot Hareiyah 2:285) that one small trespass on the holiness of our eternal Beit Hamikdash negates the merit of the establishment of millions of settlements in the Land of Israel.

Reprinted from JEWISH ACTION Magazine, Summer 5769/2009 issue

From OU.org, here.

Yes, Well Some Guns Are Lazy!

Is the media wrong?

Dear Editor,

Today I placed my pistol on the table right next to my front door. I left the clip beside it, then left it alone and went about my business. While I was gone, the mailman delivered my mail, the neighbor’s son across the street mowed the yard, a girl walked her dog down the street, and quite a few cars stopped at the stop sign near my house.

After about an hour, I checked on the gun. It was quietly sitting there where I had left it. It had not moved itself outside. It had not killed anyone, even with the numerous opportunities it had to do that. In fact, it had not even loaded itself. Well, you can imagine my surprise, with all the hype about how dangerous guns are and how “they” kill people.

Either the media is wrong, or I’m in possession of the laziest gun in the world!

Well, I’m off to check on my spoons. I hear they’re making people fat!

Richard Gross

Lehighton

[Found online.]

How to Get Rich Slowly

My Advice for a High School Student One Year Before Graduation

Gary North

Dec. 29, 2011

Here are some guidelines from a man who has made a lot of money, written a lot of books, and who is more productive today than at any time in his life at age 69.

1. Make a business plan for your life. Your entire career is a business plan. You should make one early. This must cover the following:

What do you want to accomplish?
How soon do you want to accomplish it?
How much are you willing to pay?
2. Stay out of consumer debt. Minimal debt is all right for a business, but only if you have a detailed business plan.

3. Never pay retail for anything with a price tag in triple digits. This especially includes college. //www.garynorth.com/public/372.cfm

4. Get into the job market immediately after graduation. If required, get a fast-food job, but if you do, learn everything about how to run it. Keep your eyes open. Do this with whatever job you get. If you can be mentored by someone who owns a business that makes $1,000,000+ a year, take that job.

5. Do not move into the first house you buy. Buy it as an investment. Use John Schaub’s approach. This will teach you how to buy. It will serve as your first step to a comfortable retirement. As Schaub’s former partner Jack Miller always said: “The best way to become a millionaire is to borrow a million dollars and have your renters pay it off.” He did this many times.

6. You can beat the competition if you do three things.

Do exactly what you promised.
Complete the project ahead of time.
Do it for the price you agreed to.
You may notice that there are applications of the three tasks in any business plan.

7. Compound growth is the key to success.

Conclusion. These 7 seemingly simple steps are not intuitive. Your peers do not understand more than two, and they will probably violate all of them. This will give you a lifetime competitive advantage. This advantage will increase over time, due to compound growth.

The lifetime plan is crucial. It gives you a set of goals. It motivates you to stick with the program, to “stay the course,” as President Reagan used to say. It lets you know how well you are doing. You should refer back to it on a regular schedule. Write down how well you are doing. Identify weak areas. Work on these areas. Put these notes in a file or folder. Refer back to it on a fixed schedule.

From GaryNorth.com, here.

Risk Killing Syrians with Chemicals in Retaliation for Assad Allegedly Killing Syrians with Chemicals? Sounds like Trump!

Trump’s Disastrous Syria Attack

By 

Ron Paul Institute

April 17, 2018

Over the weekend, President Trump celebrated firing more than 100 missiles into Syria by Tweeting, “Mission Accomplished!” They say if you cannot learn from history you are condemned to repeat it. So I guess we are repeating it.

We all remember that “Mission Accomplished” was the banner behind then-President Bush as he gloated aboard a US navy ship that the war in Iraq had been won. After his “victory,” however, some 4,000 US military personnel were killed, perhaps a million Iraqis were killed, and the country’s infrastructure and social fabric were so badly destroyed that they probably can never be repaired.

Actually, there is much about the US attack on Syria that reminds us of Iraq.

With Iraq, the US moved in to start bombing before international inspectors had completed their mission to verify whether or not Saddam Hussein had weapons of mass destruction. Had they been allowed to complete their mission and verify that he did not, imagine the suffering, death, and destruction that could have been avoided. In Syria, the US decided to start bombing before the international inspectors were even allowed to start checking claims that Assad gassed his own people in Douma. Why? What was the rush? Was Washington afraid they might not find Assad guilty?

Who really benefits from US attacks on the Syrian government? There were reports that ISIS began making moves immediately after the air strikes. Do we really want to be al-Qaeda and ISIS’s airforce? Is that going to keep us safer? I remember when al-Qaeda was actually considered our enemy, not an ally in overthrowing the last secular government in the Middle East.

Will Syria’s Christians be better off after the recent US attack? Just over a week ago Christians celebrated Easter in Aleppo for the first time in years. What changed? The Syrian army kicked out al-Qaeda, which had been occupying the eastern part of the city. So no, Christians will be much worse off if our “moderate terrorists” take control of Syria.

If Syria really had sarin and other chemical weapons factories, does it make sense for the US to bomb the buildings and risk killing thousands by widely disbursing the poisons? Does it make sense to risk killing Syrian civilians with chemical weapons in retaliation for allegations that the Syrian government killed civilians with chemical weapons? No, it seems more like the phony “mobile WMD labs” we were told that Saddam Hussein had constructed.

If the US knew Syria was manufacturing chemical weapons in the buildings they bombed, why not notify the Organization for the Prevention of Chemical Weapons (OPCW)? The OPCW had certified the very building the US bombed as chemical weapons free not that long ago. Why not just call them up and ask them to check it out? After all, they were just arriving in the country as the US started bombing.

There are many more questions about President Trump’s terrible decision to again make war on Syria. For example, where is Congress? It was disgraceful to see Speaker Paul Ryan telling the President he needs no Congressional authorization to attack Syria. All Members of Congress take an oath to uphold and defend the Constitution and the Constitution says that only Congress can declare war. Does that oath mean nothing these days?

President Trump will come to regret the day he let the neocons take over his foreign policy. Their track record is abysmal. His attack on Syria was clearly illegal and should his party lose the House in November he may find his new fair-weather friends in the Democratic Party quickly turning foul.

From LRC, here.

Why Our Ruling Class Gets Away with Anything and Everything

With Liberty and Justice for Some: Six Questions for Glenn Greenwald

By 

In the wake of September 11, Glenn Greenwald emerged as the nation’s premier chronicler of the war that U.S. officials waged on the nation’s civil liberties under the pretext of battling terrorists. Persistent and technically skilled, he played a key role in unmasking shameless betrayals by government attorneys of their oath to uphold the law—exposing those who enabled the torture of prisoners, the introduction of a massive warrantless surveillance system, and the merciless war against loyal Americans who attempted to blow the whistle on such abuses. I put six questions to Greenwald about his new book, With Liberty and Justice for Some, which examines the emerging doctrine of impunity for politically powerful elites in the United States:

1. You start your account of the doctrine of elite immunity in the United States with Gerald Ford’s decision to pardon Richard Nixon. How did this one decision, among the numerous incidents you describe, provide a point of rupture in the nation’s rule-of-law tradition?

American history is suffused with violations of equality before the law. The country was steeped in such violations at its founding. But even when this principle was being violated, its supremacy was also being affirmed: resoundingly and unanimously in the case of the founders. That the rule of law—not the rule of men—would reign supreme was one of the few real points of agreement among all the founders. Arguably it was the primary one.

There’s an obvious element of hypocrisy in this fact; espousing a principle that one simultaneously breaches in action is hypocrisy’s defining attribute. But there’s also a more positive side: the country’s vigorous embrace of the principle of equality before law enshrined it as aspiration. It became the guiding precept for how “progress” was understood, for how the union would be perfected.

And the most significant episodes of progress over the next two centuries—the emancipation of slaves, the ending of Jim Crow, the enfranchisement and liberation of women, vastly improved treatment for Native Americans and gay Americans—were animated by this ideal. That happened because “blind justice”—equality before law—was orthodoxy in American political culture. The principle was sacrosanct even when it was imperfectly applied.

The Ford pardon of Nixon changed that, radically and permanently. When President Ford went on national television to explain to an angry, skeptical citizenry why the most powerful political actor would be fully immunized for the felonies he got caught committing, Ford expressly rejected the rule of law. He paid lip service to its core principle—the “law is no respecter of persons”—but then tacked on a newly concocted amendment designed to gut that principle: “but the law is a respecter of reality.”

In other words, if—in the judgment of political leaders—it’s sufficiently disruptive, divisive, or distracting to hold powerful political officials accountable under the law on equal terms with ordinary Americans, then they should be exempt and the rule of law suspended, all in the name of political harmony, of “moving on.” But of course, it will always be divisive and distracting, by definition, to prosecute the most powerful political leaders, so Ford’s rationale, predictably, created a template for elite immunity.

The rationale for Ford’s pardon of Nixon was subsequently legitimized, and it created a precedent for shielding the most powerful elites from the consequences of their lawbreaking. The arguments Ford offered are the same ones now hauled out over and over whenever it is time to argue why the most powerful among us should not be held accountable: It’s not just for the good of the immunized criminal, but in the common good, to Look Forward, Not Backward. This direct assault on the rule of law was pioneered by the pardon of Richard Nixon.

2. ProPublica released, just last week, a study of the pardons process showing that a wealthy, politically connected white person may very well get a presidential pardon, but that blacks don’t get pardons, period. Is this more fodder for your thesis?

It’s almost impossible to write a book and not have something like this happen: one of the best pieces of evidence imaginable for your thesis emerges only after the book’s publication. That’s how I see the superb ProPublica study: as indescribably compelling support for the central argument of the book.

It would be one thing if the lawbreaking license I just described were available to everyone regardless of power or position. If ordinary Americans could avail themselves of this same line of reasoning when they get caught committing crimes—Officer, isn’t it better that we concentrate on the future rather than wallowing in recriminations over the past?—one could have debates about the virtues of leniency as a criminal-justice policy, but at least it wouldn’t implicate rule-of-law concerns. Everyone would be subjected to the same set of rules.

But that’s not what happens. The exact opposite takes place. The flip side of elite immunity is that ordinary Americans are subjected to the world’s largest and among its most merciless penal states. The U.S. imprisons more of its citizens by far than any other country on the planet, and for longer periods, for more trivial transgressions, and with less forgiveness than any country in the Western world. Many of these oppressive penal policies are racist in effect if not in design: particularly the drug war, which results in vastly disproportionate imprisonment rates for African-Americans and Latinos.

Pardons were designed to be a last resort for correcting grave injustices produced by the justice system. Instead, as the ProPublica study documents, they mirror and exacerbate those injustices. Even at that stage, how one is treated depends far more on who one is rather than what one has done. That is the precise antithesis of what the rule of law was designed to ensure.

3. Whistleblowers in the era of Bush and Obama have been fired, harassed, and prosecuted under statutes like the Espionage Act with a hitherto-unknown vigor, especially when their disclosures suggested that government officials committed serious crimes. Is this prosecutorial zeal driven by the same factors that have created elite immunity?

Unquestionably. Take the case of the NSA eavesdropping scandal, the clearest-cut case of criminality during the Bush years. So egregious was the wrongdoing that James Risen and Eric Lichtblau won the Pulitzer Prize for exposing it in the New York Times. Bush officials were caught behaving in the exact way the law criminalized: eavesdropping on Americans’ communications without warrants. And the statute imposed a penalty of five years in prison and/or a $10,000 fine for each offense.

Yet not a single Bush official responsible for those crimes was ever investigated, let alone prosecuted. The nation’s telecom giants, which independently broke laws written specifically to bar telecom–government cooperation in illegal spying, were retroactively immunized for their crimes by an act of Congress.

Nobody paid a price for the NSA scandal, except one person: Thomas Tamm, the mid-level DOJ lawyer who learned of the illegal program and, in an act of conscience, picked up the phone, called Lichtblau, and told him what he had learned. Unlike the criminals themselves, Tamm was investigated, harassed, rendered unemployed, forced to hire a lawyer, and ultimately driven into bankruptcy and serious psychological distress. The only person to suffer from the NSA scandal was the person who blew the whistle on it.

We see this over and over, and it’s what the Obama war on whistleblowers is all about. The only real, cognizable crime—the only one the Obama DOJ displays any real interest in punishing—is committed by those who expose elite criminality, not those who commit it. The attempt to prosecute WikiLeaks is driven by this same mindset.

4. In a speech he delivered recently in Osawatomie, Kansas, President Obama used Theodore Roosevelt’s concept of New Nationalism as a rhetorical foil. Do you agree that Roosevelt’s vision of a nation dedicated to “real democracy” sets the right tone for an age suffering from elitist triumphalism? And do you think Obama is likely, in a second term, to take any meaningful steps against the problems you describe in your book—particularly relating to accountability?

Many of the themes sounded in Obama’s Kansas speech were valid and appropriate, but that matters little. Obama is in campaign mode, and what he has convincingly demonstrated is that the inspiring, passionate speeches he delivers have little relationship to his actions.

There is zero basis for believing that Obama will change course on any of these matters in his second term. There is always another election ahead that apologists can cite to justify bad acts (You have to understand: it’s vital that Democrats win the 2014 midterms). And Obama has displayed no interest whatsoever in holding elites accountable for criminality: not just political actors, but financial elites as well.

If anything, it’s even more unlikely that he would hold elites accountable in his second term. In November, 2008, the New York Times explained why presidents have an incentive to shield their predecessors from prosecution: “Because every president eventually leaves office, incoming chief executives have an incentive to quash investigations into their predecessor’s tenure.” In other words, by shielding those who came before him, Obama ensures that he can commit crimes with impunity as well. That’s why all elites—political, financial, media—are motivated to defend and preserve this lawbreaking license for their class.

Continue reading…

From Harper’s Magazine, here.