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Parshat Behar            15 Iyar 5763              May 17, 2003              Vol.12 No.29

 

The Beth Din of America’s Handling of the World Trade Center Agunot – Part Two:
The Rulings of the Beth Din of America

by Rabbi Chaim Jachter
Last week, we outlined the methodology of Poskim concerning cases of Agunot.  This week, we shall present the logic of the rulings of the Beth Din of America (the Beth Din of the Orthodox Union and Rabbinical Council of America) regarding the Agunot from the vicious terrorist attack on the World Trade Center.  We shall divide our discussion of the rulings to three basic categories.  The first category is when the remains of the missing husband have been found and the question is if the remains can be properly identified as that of the missing husband.  The second category is when a body was not found but there is sufficient evidence that the husband was at the World Trade Center at the time of the attack, in part of the building where all or most people were unable to escape.  The third category is when no remains are found and there is no obvious evidence that the husband was in the section of the WTC where all or most people were unable to escape but if the husband followed his usual routine he would have been at the part of the twin towers where most people where unable to escape.
We must also present some of the basic facts regarding the attacks on the World Trade Center that Rav Mordechai Willig records in Kol Zvi.  The first plane hit the north tower of the World Trade Center at 8:46 A.M. between floors 93-98.  The Beth Din of America determined (through extensive consultation with experts) that this immediately destroyed the elevators and all stairways from the ninety-second floor and above.  Thus anyone who was located in this building at the time the plane hit the building was unable to escape.  Indeed, there are no known survivors from the ninety-second floor or above.  The building collapsed at 10:29 A.M.
The second plane hit the Southern Tower at 9:02 A.M. between floors 84 and 87 and this building collapsed at 9:59 A.M.  Only ten survivors are known of those who were at floor 78 and above at the time of impact.  The ten who survived were standing by stairwell “A.”  The elevators and stairwell “B” were destroyed by the impact of the plane upon the Southern Tower.  It seems that stairwell “A” remained intact only for a very brief time after the impact, and that only people who were standing immediately next to this stairway were able to survive.  The ten survivors sustained very serious injuries and would not have survived without immediate hospitalization.

Identifying the Missing Husband's Remains
A simple case to adjudicate would be when the husband’s body was found intact within three days of his presumed death.  The Shulchan Aruch (E.H. 17:24-26) codifies the Mishna (Yevamot 120a) that states that one may identify a husband only within three days of death and only if the face including the nose is intact.  However, in the absence of such evidence Simanim (identifying marks) in the body of the deceased are necessary for identification.  Simple identifying marks such as a ruddy complexion or being tall or short do not satisfy the requirement of Simanim in such a case.  Rather, especially unique Simanim (Siman Muvhak Biyoter) are necessary to identify the husband (Shulchan Aruch E.H. 17:24).  Beit Shmuel (17:72) and Aruch HaShulchan (E.H. 17:172) cite Teshuvot Maseit Binyamin (number 63) as asserting that if fewer than one in a thousand people share this feature then the feature is classified as a Siman Muvhak Biyoter.
A middle category is features that are neither very common nor very rare.  Such a Siman is not automatically discounted or accepted.  Rather, it has become accepted that two such Simanim may be combined to constitute a Siman Muvhak Biyoter.  In addition, one such average Siman (Siman Beinoni) may be combined with other relatively convincing evidence that indicate that the body is that of the missing husband (see Pitchei Teshuva E.H. 17:106 and Aruch HaShulchan 17:172).  Rav Yitzchak Elchanan Spektor (Teshuvot Ein Yitzchak 1:E.H. 20) rules that two inadequate Simanim may be combined to constitute a Siman Beinoni.  The Aruch HaShulchan (ibid) cites this opinion and modifies it by stating that “numerous” inadequate Simanim may be combined to constitute a Siman Beinoni and that each case much be judged independently by the leading Halachic decisors of the time.
There is an enormous volume of responsa concerning the classification of various features.  This literature is summarized in the Otzar HaPoskim (5:288-324), regarding no less than one hundred and sixty-five bodily features.  In addition, the Otzar HaPoskim (5:206-280) summarizes the writings of the Poskim regarding what combinations of Simanim are adequate to identify a husband.
Two of the most relevant issues in this regard for the WTC Agunot are the admissibility of dental records and of DNA evidence.  The Beit Shmuel (17:72) rules that a hole that goes through an entire tooth constitutes a Siman Muvhak.  The Aruch HaShulchan (E.H. 17:173), writing in the late nineteenth century, asserts that holes in teeth do not constitute a Siman Muvhak as they are very common.  However, Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:57, writing in 1959) and Rav Ovadia Yosef (Teshuvot Yabia Omer 6: E.H. 3:4, writing in 1974) rule that dental records are acceptable as a component to an identification of a missing husband.  Rav Ovadia explains that the dental records are much more specific than the identifying marks that the Aruch HaShulchan addressed.  Rav Zalman Nechemia Goldberg notes in Kol Zvi that the practice among Batei Din in Israel is to accept dental records as a Siman Muvhak Biyoter.  The Beth Din of America partially relied upon dental records for identifying some of the missing husbands.
Poskim have most recently been asked to address the Halachic status of DNA testing.  Poskim do not accept or require a DNA test to determine an individual’s status  as a Mamzer (see Rav Yosef Shalom Eliashiv, Kovetz Teshuvot 135; Rav Shmuel Wosner and Rav Nissim Karelitz, Techumin 21:123; and Rav Shlomo Dichovsky’s responsum published in Teshuvot Bikkurei Asher, the responsa of contemporary Jerusalem rabbinical court judge Rav Masood Elchadad, number six).  However, Rav Shmuel Wosner and Rav Nissim Karelitz (Techumin ad. loc.) rule that DNA is admissible as partial evidence together with other corroboratory evidence to determine the identity of a missing husband.  They believe that DNA evidence constitutes a Siman Beinoni.  In fact, Rav Yonah Reiss, the director of the Beth Din of America, reports that Rav Eliashiv also ruled in the context of the WTC Agunot that one may partially rely upon DNA evidence for identification purposes.  Rav Wosner and Rav Karelitz, much prefer a DNA test using a sample from the missing person’s personal effects (such as hair from his hairbrush or saliva froma toothbrush) than a DNA test that uses the DNA of immediate family to make an identification.
Rav Zalman Nechemia Goldberg wrote at some length on this issue and concludes that DNA evidence constitutes a Siman Muvhak Biyoter.  He notes that since the chance of error regarding DNA evidence ranges from a billion to one to a quintillion to one, it far exceeds the requirement that a Siman be shared by less than one thousand people in order to constitute a Siman Muvhak.  Rav Goldberg draws an analogy between DNA evidence and Rav Yitzchak Elchanan’s ruling (Teshuvot Ein Yitzchak 31) that a photograph of a missing husband showing that he is dead is sufficient evidence of his death (the Netziv, Teshuvot Meishiv Davar 4:23 and Rav Ovadia Yosef , Teshuvot Yabia Omer 6:E.H. 3:3 also regard photographs as a Siman Muvhak Biyoter) .  It is important to note that Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham E.H. 1:37) seems to regard DNA evidence as conclusive evidence regarding all areas of Halacha.  Rav Eliezer Waldenburg is also cited (ibid) as ruling that DNA evidence constitutes partial evidence for Halachic purposes.  The Beth Din of America partially relied upon DNA testing in the identification of some of the missing husbands.
A major question, though, arises whether one may rely upon the civil authorities reports of their identification by dental records or DNA testing.  The Shulchan Aruch (E.H. 17:14) codifies a ruling of the Gemara (Gittin 28b) that one may not rely upon the report of a non-Jewish court that they have executed a Jew.  Rishonim explain that we are concerned that the authorities are falsely reporting that they executed the individual in order to glorify the effectiveness of their judicial system or simply to instill fear upon the residents of the land.  Acharonim debate whether we may rely upon a government issued report that someone has died when it is clear to us that the reasons offered by the Rishonim are not relevant.  In the early nineteenth century this issue was debated by two of the premier authorities of the time, Rav Mordechai Banet (Parashat Mordechai E.H. 27) and the Chatam Sofer (E.H. 43).  Later nineteenth century authorities such as Rav Yitzchak Elchanan Spektor (Teshuvot Be’er Yitzchak E.H. 27) and Rav Shlomo Kluger (Teshuvot HaElef Lecha Shlomo E.H. 97) accepted the lenient view.  In fact, the Aruch HaShulchan (E.H. 17:80, writing in the late nineteenth century) records that the lenient view has become the more accepted view (though he adds that the most thorough investigation possible should be conducted in order to corroborate the report).
Rav Yitzchak Elchanan’s reasoning on this matter is quite cogent.  He notes that unlike other areas of Halacha a non-Jew’s testimony is valid regarding Agunot if he speaks about the matter in passing (Meisiach L’fi Tumo).  On the other hand, a non-Jew has credibility in other areas of Halacha if he testifies about a matter in his professional capacity (Uman Lo Mar’ei Anafshei), such as a chef testifying that a certain food item does not have the taste of a non-kosher ingredient that mistakenly fell in to the food item (see Shulchan Aruch Yoreh Deah 98:1, Shach Y.D. 98:2, and Biur HaGra Y.D. 98:2).  Accordingly, reasons Rav Yitzchak Elchanan, a non-Jew testifying in his professional capacity is certainly believed in the context of Agunot where the Halacha is extraordinarily lenient about the type of testimony that is accessible.
Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 1:48) admits the testimony of the United States War Department that the plane of a missing husband plunged into the English Channel during World War II and (Teshuvot Igrot Moshe E.H. 4:58:7) the testimony of the Belgian government that the Nazis transported a missing husband to Auschwitz.  Rav Ovadia Yosef (Teshuvot Yabia Omer 7:14) admits the testimony of the Russian government that a missing husband died in a battle with the Nazis during World War II.
Accordingly, the Beth Din of America partially relied upon the New York City Medical Examiner’s testimony regarding DNA tests administered under his auspices.  Rav Willig notes that he and members of the Beth Din of America were permitted to visit and evaluate the procedures of the New York City medical examiner’s laboratory.  Rav Willig was duly impressed by the professionalism of this office and concluded that the chance of error in the operation of this office is virtually nil.  In fact, Rav Yonah Reiss reports that the Medical Examiner’s office told him that dental records are examined no less than five times to insure an accurate identification.
In addition, Rav Zalman Nechemia ruled that we may rely upon American Airlines assertion that a missing husband was on board one of the planes that crashed into the WTC.  He asserts that they also have a professional reputation to uphold and thus may be trusted according to Halacha.  He adds that there is no apparent reason for American Airlines to lie about such a matter as it only serves to increase their exposure to liability for the passenger’s death.
We should add that the reluctance of some Poskim to recognize the results of dental record and DNA tests as a Siman Muvhak Biyoter appears to stem from the dispute regarding the admissibility of the reporting of the civil authorities.  Poskim might be concerned that not all DNA laboratories pay scrupulous attention to detail to avoid errors.
Another very important issue whether the discovery of personal items of the missing husband near at the scene of the assumed death constitutes sufficient evidence of the husband’s death.  In fact, one of the missing husbands remains were not found, but a pair of pants (that had pieces of skin and bones) containing his wallet that held his driver’s license and credit cards were found in the WTC wreckage.
The Shulchan Aruch (E.H. 17:24) rules that even highly unique items that are found on a body, cannot serve to identify the body.  The Shulchan Aruch explains that we are concerned that the missing husband lent these items to someone else.  The Shulchan Aruch makes no exceptions to this matter and apparently is strict even with items that one normally does not lend.  The Chelkat Mechokeik (17:42) notes that other Poskim disagree and accept the discovery of highly unique and personal items such as one’s wallet or ring that one does not normally lend to others, to identify the body.  In fact, the Beit Shmuel (17:69) rules leniently regarding such items that people do not normally lend to others.  The Pitchei Teshuva (E.H. 17:95) presents a very lengthy summary of this issue, which he introduces by writing, “there exists a great dispute among the Poskim regarding this matter.”  In fact, the Otzar HaPoskim (5:173-204) summarizes rabbinic rulings regarding ninety-five personal items found on or very near bodies whether they constitute things that people would not normally lend.
Rav Moshe Feinstein (Teshuvot Igrot Moshe E.H. 4:57) and Rav Ovadia Yosef (Teshuvot Yabia Omer 6: E.H. 3:2) rule leniently and partially rely upon the discovery of such items to identify a missing husband.  Thus, Rav Gedalia Schwartz reports that the Beth Din of America partially relied upon the discovery of the pants of a missing husband that contained his wallet that included his driver’s license and credit cards.  One might add that although one might lend clothing to others, one does not normally share his business attire with others.  Today, most businesspeople are very meticulous about their appearance and dress and would normally only wear items that are professionally tailored to fit them perfectly.  Thus, it would be highly unlikely for someone to lend his pants to someone to go to his business office on a workday.  Rav Zalman Nechemia presents a similar approach as he writes that in today’s affluent society, there is not a great concern for lending of pants.

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