By Rabbi Yair Hoffman for the Five Towns Jewish Times

On Thursday, President Barack Obama dismissed all suggestions that a $400 million payment to Iran amounted to a ransom paid in return for the release of four American hostages.

According to US Code 18:1202:

a) Whoever receives, possesses, or disposes of any money or other property, or any portion thereof, which has at any time been delivered as ransom or reward in connection with a violation of section 1201 of this title, knowing the same to be money or property which has been at any time delivered as such ransom or reward, shall be fined under this title or imprisoned not more than ten years, or both.

(b) A person who transports, transmits, or transfers in interstate or foreign commerce any proceeds of a kidnapping punishable under State law by imprisonment for more than 1 year, or receives, possesses, conceals, or disposes of any such proceeds after they have crossed a State or United States boundary, knowing the proceeds to have been unlawfully obtained, shall be imprisoned not more than 10 years, fined under this title, or both.

Confirming the US offered the payment in cash, Obama nevertheless downplayed the delivery’s significance, saying it was not a “nefarious” deal.

The Obama administration has repeatedly rejected accusations that the cash — part of a $1.7 billion agreement to settle a decades-old arms deal dispute — was meant to grease the release of four US prisoners. These prisoners were freed in January when Tehran implemented a landmark nuclear deal. A fifth US prisoner was released separately.

Secretary of State John Kerry also insisted on Thursday that the United States never pays ransoms for hostages, rejecting accusations that a $400 million payment to Iran was a quid pro quo for the release of American prisoners.

“First of all, the United States of America does not pay ransom and does not negotiate ransoms with any country,” Kerry said at a news conference in Argentina. “We never have and we’re not doing that now. It is not our policy.”

The president is refusing to call it a ransom. John Kerry is refusing to call it a ranson.

But everyone knows that it was.

THE HALACHIC SOURCES

Of course the government of the United States is not obligated to follow halacha, but let’s look at the halachic sources and also delve a bit into the underlying issues with this ransom that wasn’t a ransom.
The Mishna in Gittin 45b tells us that we do not redeem captives for more than their value. The meaning of course is to their value on the market as slaves. The Mishna tells us that it is “mipnei tikkun olam” – which means as public policy.

The general implication of this term is that it is a public policy enactment. In other words, in order to stop a situation where evil people kidnap people for a ransom, a special enactment was made that prohibited paying substantially more for our fellow people who are now captives.

Had this enactment not been promulgated, life would have been endangered. The enactment served to remove the incentive to kidnap our fellow man specifically. We will be halachically constrained from having to pay a premium to redeem others. By the same token, the US government created a law to discourage kidnappings with the passage of 18:1202.

The enactment of Chazal, of course, would not prevent kidnappings. It would merely prevent a situation where our fellow brethren would be specifically targeted.
But the essential point is that there was a specific time and circumstance when this enactment was promulgated. Prior to the enactment, from a historical perspective, it would seem that halacha would have dictated that the ransom be paid. The Rabbis took it upon themselves to create legislation forbidding it in order to better benefit the public. It was an enactment that created a new rubric – without negative consequence.

Should an enactment be made like that of Gittin 45b? It seems that it would save lives.

Should congress have passed this legislation limiting the government’s ability to facilitate such exchanges? Does it apply to foreign governments as well as criminals? Should Obama circumvent the law?
Another interesting issue is that there are a number of Rishonim and Achronim who rule that the entire enactment is only when there is no danger to life. These opinions are cited in Pishchei Teshuvah YD (252:4). He states that if there is a danger to life the enactment does not apply. Among those who rule thus are the Meiri. Even though the majority of Achronim disagree with this point, this is a significant point of halachic debate.

Perhaps the president felt that he should circumvent the law, or re-interpret it not to apply to governments, or just dissemble about it in order to save the four American lives.

SAVING LIFE NOW BY PAYING OR SAVE MORE LIFE LATER BY NOT PAYING

The issue comes down to a definite saving of life now versus possibly saving many more lives in the future. Although one can perhaps argue that it is not a “possible” but a “definite”, as experience has shown – even still the exchange may be halachically necessary. Why? We are not sure which one’s they may be and it has not been directly established who it will be – the saving of life now may outweigh the future saving of even more life. This exact rationale is presented by Rav Vosner in Shaivet HaLevi Vol. V #137.

There are two additional issues that are pertinent as well. The first issue is that Islamist Iranians are, and have always been motivated to kidnap. One could perhaps argue that they are “maxed out” in this regard.

This ransom payment may in fact create more terrorism into what can be called a “Safaik Rodef.” Rav Chaim Ozer Grodzinsky (Achiezer Vol. III 72:3) address the issue of a safaik rodaif and concludes that one does not kill certain life because of the possibility of a safaik rodaif. Although the situation is not completely analogous, the difference between a certain rodaif and a possible rodaif is clearly made.

Rav Feinstein zatzal also shares a similar view (see Igros Moshe CM II 69:4).

The conclusion? It is certainly not an easy decision. May G-d Al-mighty safeguard all of us and all those who seek and love peace.

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