By R’ Mordechai Burg
Viktor Bout is said to be one of the most dangerous men on the face of the earth. Known as the Merchant of Death, Bout exploded onto the scene in war-torn West Africa in the late 1980s. Formerly of the USSR intelligence services, Bout took advantage of his Russian military contacts after the collapse of the USSR and became a one-stop shop offering an unlimited supply of stockpiled cold war weapons. He is known in the business as a shadow facilitator, arming designated terrorist groups and powerful drug cartels around the globe. Elevating bloody conflicts from machetes and single-shot rifles to AK47S by the tens of thousands, he weaponized civil war in Africa, transforming young adolescent warriors into killing machines that operated assembly line efficiencies. He fueled the brutal war against civilians in Liberia waged by the warlord Charles Taylor, in which an estimated 300,000 people lost their lives. Bout’s selling point was his private fleet of cargo airplanes (more than 60 planes!), capable of transporting weapons and military equipment anytime and anywhere with pinpoint accuracy. He was convicted on four terror-related charges, including conspiracy to kill Americans.
Phoenix Mercury star center and two-time Olympic gold medalist Britney Griner was arrested on drug possession charges at Moscow’s Sheremetyevo Airport in February, where she was found with vape cartridges containing cannabis. Griner claims it was an honest mistake, and the US State Department maintains that she was wrongfully detained – a charge Russia strongly rejected. She was sentenced to nine years in a Russian penal colony. According to the US State Department, human rights violations are common in the Russian penal camps.“Conditions in prisons and detention centers varied but were often harsh and life threatening,” a 2021 State Department report on Russian human rights abuses said. “Overcrowding, abuse by guards and inmates, limited access to health care, food shortages, and inadequate sanitation were common in prisons, penal colonies, and other detention facilities.” The report also notes that there is systemic physical abuse of the prisoners by the correctional officers and that the torture of prisoners is so pervasive that it sometimes leads to death and suicide.
This past Thursday, President Joe Biden announced that the US had secured Griner’s release in exchange for Bout. Within hours of Griner’s release, many in the country expressed outrage over what they felt was an “unfair trade.” How could we exchange a cold-blooded killer for a professional athlete!? Further, many claimed that this exchange weakened America’s standing in the world. Representative Kevin McCarthy of California, who hopes to be the speaker in the Republican-controlled House next year, said that the exchange with Mr. Bout has “made us weaker” and added, “It’s made Putin stronger, and it’s made Americans more vulnerable.”
Timely issues ought to be seen through the lens of timeless Torah values. Especially because this is an issue that routinely comes up in modern times as Israeli hostages are traded for Palestinian terrorists. This article will examine what the Torah has to say about prisoner exchanges.
The Mitzvah of Pidyon Shevuyim
The Rambam (Mishneh Torah, Laws of Gifts to the Poor 8:10) explains to us the importance of performing the Mitzvah of pidyon shevuyim. “The redeeming of captives takes precedence over the feeding and clothing of the poor. Indeed there is no religious duty more worthy than the redeeming of captives, for not only is the captive included in the generality of the hungry, the thirsty, and the naked, but his very life is in jeopardy. To sum up, no religious duty is greater than the redeeming of captives.”
The Mishna (Gittin 45a) teaches us that captives should not be ransomed for more than their value for the sake of tikkun ha olam. The Gemara clarifies that tikkun haolam could mean one of two things.
- The community may be unable to handle the burden of an excessive ransom, leading to community poverty.
- Having received an excessive ransom, the captors would be incentivized to take more captives and demand a high ransom.
The practical halachic difference between these two rationales would be in a case where one individual in a community would have the capacity to pay an entire ransom. The community would be spared the possibility of becoming impoverished, but the fear of future abductions would not be alleviated. The Gemara tells a story of Levi ben Darga, who ransomed his daughter for thirteen thousand denari of gold. Abaye objected and said that perhaps he acted against the will of the chachamim.
Rav Yehoshua ben Chananya once happened to go to the great city of Rome, and he was told there that there was in prison a child with beautiful eyes, a handsome face, and curly hair arranged in locks. He stood at the prison’s doorway and quoted (from the prophet Yeshayahu 42:24), “Who subjected Yaakov to plunder and Israel to spoilers?” The child answered (with the conclusion of that verse in Yeshayahu), “Is it not Hashem, He against whom we have sinned and in whose ways they would not walk, neither were they obedient to his Torah.” Rav Yehoshua said: “I am sure this one will be a teacher in Israel. I swear that I will not budge from here before I ransom him, whatever price may be demanded.” He did not leave the spot before he had ransomed him at a high figure, nor did many days pass before he became a teacher in Israel. Who was he? None other than Rav Yishmael ben Elisha.
How could Rav Yehoshua have paid such an excessive amount of money given the above-quoted Mishna? There are several possible solutions to this problem. Tosaofs answers that an excessive amount of ransom may be paid if the captives life is at stake. The Ramban disagrees, maintaining that every captive’s life is at risk, yet the Mishna says that we don’t overpay to ransom them. The Rambam (cited above) clearly agrees with the Ramban as he says explicitly that the captive’s life is in jeopardy and, nevertheless he should not be ransomed for more than his value. In defense of Tosafos, the Meiri argues that there is a difference between captors that are not going to murder their prisoner and situations where it is not clear. In a case where the captors are motivated by financial interests, the Meiri reasons that they will ultimately release their prisoner and lower the ransom. In such cases, we should not overpay for the prisoner. In situations where the captors are likely to murder the captive, it would be permissible to overpay and save the prisoner’s life.
Others suggest that since this story took place immediately after the destruction of the Beis HaMikdash and Klal Yisrael was entirely subjugated by the Romans, the situation could not have been made any worse.
Ultimately the Shulchan Aruch (Yoreh Deah 252:4) rules that “We do not redeem captives for more than their worth, for the benefit of the world at large—meaning, so that enemies will not pursue people to hold them captive. However, to redeem one’s own self, one may pay as much as he so wishes.” Notice that the Shulchan Aruch makes no mention of the distinction of Tosafos. Furthermore, the Shulchan Aruch is only concerned with incentivizing our enemies to take more captives and does not mention the financial burden on the community.
Another interesting point that the Shulchan Aruch makes is that if one is redeeming themselves from captivity, they may pay as much as they wish. This seems strange, considering that the Shulchan Aruch paskens that the rationale for not overpaying is the incentivization of further terror. Had the explanation been the burden on the community, it would be understandable that if the prisoner is paying the ransom, it presents no obligation on the community. If, however, the reason is because of the fear of future kidnappings, it should not make a difference if the community or the individual is paying the ransom. How can the Shulchan Aruch cite the rationale of incentivizing terror and say that the individual can overpay to free themselves? Tosafos answers that while it is true that overpaying for someone in captivity is prohibited, we cannot enact a decree that goes against human nature. We will always tend towards self-preservation (including saving one’s wife). Therefore, when they made the gezeira not to overpay, Chazal did not include a situation where one is redeeming themselves.
In 1286, at the age of seventy, the Maharam of Rothenburg (the gadol hador of his time – one of the Baalei Tosafos and the Rebbi of the Rosh), was taken prisoner by King Rudolph of Germany. Because of the Maharam’s stature, King Rudolph felt he could extort the Jewish community, and the ransom was set at the exorbitant sum of 20,000 marks. The talmidim of the Maharam and the community came together and raised the necessary monies to free the Maharam. Though the sum was astronomical, they justified their decision by reasoning that the Maharam’s life was in danger and because he was a Talmid Chacham of exceptional caliber and a community leader, this was a unique case. However, the Maharam himself rejected their rationale (see Maharshal, Yam Shel Shlomo, Gittin 4:66) and reasoned that paying the ransom would lead to further Talmidei Chachamim being taken captive. Ultimately the Jewish community would not have the necessary money to pay the ransom, leaving Klal Yisrael bereft of leadership. Tragically, the Maharam passed away after seven years of imprisonment in the fortress of Ensisheim. Fourteen years later, his body was ransomed and he was finally given a proper burial.
Redeeming Captured Israeli Soldiers
The modern State of Israel presents new halachic challenges in relation to the mitzvah of pidyon shevuyim. In the case of Gilad Shalit, the Israeli government exchanged 20 female Palestinian prisoners just for video evidence that Shalit was still alive. Ultimately, the Israeli government traded over 1,000 Palestinian prisoners for the return of Shalit.
On the one hand, it has been argued that if the government does not extend all of its resources to redeem a captive Israeli soldier, it can have a deleterious impact on the psyche of the Israeli army. For a soldier to feel comfortable going into battle, he must know that if he is taken captive, he will ultimately be returned to his family. We must also consider the impact on the country when captured Israeli soldiers or citizens are not brought home. Thus, in redeeming a prisoner for significantly more than their value, the Israeli government is operating like a person who is redeeming themselves. As we mentioned above, Chazal’s takana did not extend to a person saving themselves because one cannot go against their very nature of self-preservation.
On the other hand, it also argued that releasing terrorists back into the Palestinian population further threatens Israeli lives. Negotiating with terrorists legitimizes the terrorist position and sets a weak precedent for the future. In a private conversation with an adam gadol of world repute (whose name I am withholding only because I did not ask permission to publicize this psak), I was told in no uncertain terms that these terrorists continue to have the din of a rodef even after they have served their time in jail as they will surely commit acts of terror again. Not only does their release adversely impact the morale of the country, it also represents a threat to the country’s security. Surely one cannot in good conscience save a life by threatening the lives of others. After the return of Gilad Shalit, hundreds of Palestinians in the West Bank waved Hamas flags and chanted, “We want a new Gilad Shalit.” Those that defend the position of returning the terrorists for captive Israeli soldiers maintain that the threat to the captive soldier is an imminent certainty, while the potential danger is only in the future.
To the American public, if you found yourself conflicted over the return of Brittney Griner, simultaneously celebrating her safe return and yet frustrated by the steep price that was paid, know that Israeli citizens know your feelings all too well. We have watched thousands of terrorists being released back into the population, knowing they will likely strike again. There is no doubt that Viktor Bout’s release will result in a further loss of life. It is naive to believe that he will simply fade into retirement. And yet, a country must do everything in its power (within reason) to ensure the safe return of its citizens. A failure to do so is not simply a moral failure; it is a fundamental failure. To be a citizen means to be protected by your government. Thousands of years ago, a Roman citizen could go anywhere in the world without fear of being harmed, armed only with the words, civis Romanus – I am a Roman citizen. Should any Roman citizen be attacked, Rome’s retribution was so massive that it would strike fear into the hearts of any future attackers. In this way, they assured the safety of Rome’s citizens around the globe. Every time we trade prisoners for terrorists, we send a message that we are weak. Every time we trade prisoners for terrorists we send a message that every citizen is infinitely important. It is a complex question with no easy answers. At the very least, there is value in appreciating the challenge of the situation.