Police and soldiers are being punished for doing their jobs. The result is a win for criminals and terrorists.
A funny thing about terrorists is that I would guess that most of them stop at red lights and would treat a US $100 bill as being worth $100. However much they work to destroy the status quo, and however much they show contempt for their sworn enemies, they still play within certain rules. My lawyers once sued the state of Israel for periodically replacing worn-out Israeli currency in Gaza with brand-new bills. Yes, in Gaza, with 75% supporting Hamas and their killing of Jews, their economy is based on the New Israeli Shekel.
One of the greatest problems in fighting terrorism is the asymmetry of action. For terrorists, everything is kosher. Murder, rape, destruction—they have no limit to the depths of their evil, as evidenced by the documented behavior of Hamas “Nukhba” terrorists in Israel on 10/7 of last year. Even the Japanese scotched a plan to drop bubonic plague bacteria on California and Germany never turned to nerve gas on the battlefield. Today’s terrorists have no such moral brakes.
Today’s terrorists also know how to use and game the Western system to advance their nefarious interests. Whether it was Atta and Company learning how to fly from American flight schools or Yahya Sinwar getting brain cancer surgery in Israel prior to his release in the Schalit deal, terrorists—like viruses taking over a cellular host—use the local liberties and opportunities to advance their goals and then, when ready, attack their hosts. As has been shown previously, Gazans who worked in Israel and made good money participated in the pogrom and/or provided critical information for the attacking hordes.
When Western police or soldiers fight back, they are often criminalized. Terrorists rely on Western rules of engagement meant for regular armies, namely that one cannot kill a surrendering or captured combatant. Come out with your hands up and live to fight another day. But what happens when those rules of engagement are not followed? There is the famous story of Hemmingway waxing a German soldier when in need of critical information in World War II. Apparently, there are a number of cases of Israeli security officials getting information from Nukhba terrorists by non-standard means and executing some in the field. I am certain that those who were involved were in desperate need of information on the battle plan of the terrorists and every second could mean more dead and kidnapped civilians. The Israeli judiciary apparently is beginning to look into these cases and those who were involved in killing captured terrorists during the helter-skelter hours of the worst attack ever on Israeli territory.
In the US, a similar pattern has been applied to police. Since the beginning of Black Lives Matter and the intentional hands-off policing that followed, crime has increased significantly. Police officers are made to make calculations that they should never be forced to make: “If I kill the bad guy, I might lose my job and pension. I might even go to jail. If I let him go, someone else will probably suffer, but at least I’ll have a job and the likelihood of me being the victim is nil.” In Israel, if those involved in tracking down, extracting information and in some cases, killing terrorists are prosecuted, then we will again create the perverse incentive of it being better and smarter to do nothing. And as I said, the more asymmetric the warfare or policing, the more the bad guys win. We are trying to apply rules of engagement that do not work in many modern settings. The George W. Bush administration took hundreds of terrorists to Guantanamo Bay because the US justice system was not designed to deal with them. Even in our case, Sokolow v PLO, the case was thrown out in spite of a jury finding the PLO and Palestinian Authority guilty on 24 counts. There was no way to apply jurisdiction to the bad guys and the Second Circuit court of appeals threw out our $655.5 million judgment. Terrorist organizations rarely open branch offices in the US.
There is a world of difference between a bad cop and a cop put into a bad situation and responding as best he can under the pressure of the situation. Life-threatening situations or “ticking time bombs” as they are called here often require actions that traditional law enforcement would call illegal or criminal. There is a need for Western societies to even the playing field. One might be tempted to say, “That’s not who we are!” But unfortunately when your enemy is a group of murderous rapists and not the local Rotary Club, then you must adapt to speak in a language that they understand. Just as the Iranians got the message loud and clear when General Sulameini was turned into a 500 piece puzzle, so too Hamas understands when their terrorists come home with a unique hole in their heads. The ones who captured, interrogated and apparently killed terrorists in the field during a mass murder event should be given a huge parade in downtown Jerusalem and the keys to the city. Instead, they will be asked to answer questions as if they had had an hour to think about every move they made in the fields of southern Israel. It was like the pilot Sullenberger who was criticized for landing in the water when he was told that he could have landed at one of the local airports. The problem was that if he used 15 seconds to think about his situation, that landing option disappeared. It’s easy to sit in an ivory tower and judge others. It is far more difficult to make split-second decisions that could have an impact on the lives or deaths of others. Israeli security personnel were dealing with thousands of terrorists in 20 towns and needed as much information as quickly as possible to gain the upper hand against the murderers.
Human beings are not perfect and were never meant to be. A dirty cop or soldier is not the same as a cop or soldier making split-second decisions in a real-time emergency situation. The more we hold our security personnel to super-human standards of perfect reaction and control, the more the terrorists and criminals win. Training is to make the right decisions. When the time comes to use deadly force, if prosecutors have to err, err on the side of those who dedicate their lives to keeping us safe and free. Investigating and punishing policemen and soldiers for being human only means that those who come after them will not do their jobs. And in reality, why should we expect them to do so? Jail or pension—it's a no-brainer.