(2011/5771)

This year marks the tenth anniversary of the tragic events of the September 11, 2001, the vicious terrorist attacks on the Twin Towers of the World Trade Center, which resulted in the murder of over two thousand people. As a result of this tragedy, fifteen cases of Agunot were presented to Batei Din in the New York metropolitan area. Ten of these cases were presented to and handled by the Beth Din of America, the Beit Din of the Rabbinical Council of America and the Orthodox Union. In this series, we outline the Halachic sources and background that enabled the Beth Din of America to permit these women to remarry by determining that their respective husbands had indeed died. I thank Menachem Butler for stylistic enhancements of this series which he includes in the recently issued “Contending with Catastrophe” (Beth Din of America Press, K’hal Publishing).

When a Wife Disappears

A woman whose husband disappears may not remarry without proof of his death. We are more lenient, however, for men whose wives disappear, as the prohibition for a married man to marry a second wife is only Rabbinic in nature, whereas the prohibition for a married woman to marry another man involves a capital Biblical offense (see Pitchei Teshuva Even HaEzer 1:14). Rav Yona Reiss, formerly the director of the Beth Din of America, reported (during a Shiur at TABC), that a number of husbands called the Beth Din of America after their wives disappeared in the World Trade Center attacks. Rav Reiss said that the Beth Din of America followed the view of the Gesher HaChaim (1:19, note 4), who rules that a husband may remarry if adequate evidence exists that his wife was present where a tragedy occurred, and that most people who were in her location and situation perished.

General Background

Before discussing the World Trade Center Agunot, we will present a basic overview of the process of determining the death of a husband when no body is found. Rabbis throughout the generations devoted extraordinary efforts to resolve cases of Agunot. In fact, the Otzar HaPoskim (in its 1982 edition) devotes no fewer than eight volumes, spanning approximately 1,500 pages, to this topic alone. Fifteen hundred pages merely summarize the responsa literature on the subject of Agunot! An example of some Rabbis’ extraordinary efforts is Rav Yitzchak Herzog’s Teshuvot Heichal Yitzchak, E. H. 2:9, in which he writes that, despite his doctors’ strict orders for him not to read anything (for the sake of his eyes’ health), he violated their command in order to research and issue a ruling regarding an Agunah, due to his compassion for her. Some Rabbis, such as Rav Yitzchak Elchanan Spektor, were famous specifically for their special attention, sensitivity, and creativity in this area of Halacha.

Since Talmudic times, Poskim have tried to be as lenient and creative as possible regarding Agunot while maintaining the integrity of the Halachic process. The Sam Chayei (17) describes the attitude of a Rabbi grappling with an Agunah situation:

“It is comparable to one who is running away from a lion and has encountered a bear, as the battle has caught him from the front and be hind; just as he fears being lenient, so too does he fear being strict.”

This process continued in the twentieth-century, as Poskim responded to the enormous challenges that arose in that war-torn century. For example, Rav Moshe Feinstein (Iggerot Moshe, E.H. 1:41-51, and 4:56, 58), and Rav Tzvi Pesach Frank (Har Tzvi, E.H. 1:64-70) deal extensively with Agunot from the Holocaust. Rav Herzog (Teshuvot Heichal Yitzchak, E.H. 2:1) writes at great length about the rulings he issued regarding Agunot from Israel’s War of Independence. Rav Ovadiah Yosef (Yabia Omer, E. H. 6:3) records his rulings regarding the Agunot from the Yom Kippur War of 1973. Regrettably, Poskim once again were summoned to deal with many Agunot from the World Trade Center terrorist attacks.

Methodology

The Otzar HaPoskim (8:203-211) outlines the basic methodology of Poskim regarding cases of Agunot. Poskim emphasize that not just any Rabbi may resolve questions in this area. Rather, only a Rabbi of great stature should rule upon a matter of such great urgency (see the many sources cited in the Otzar HaPoskim 8:206-207). Moreover, when possible, it is customary for three eminent Rabbis to consult one another and agree upon a conclusion before issuing a lenient ruling. The Aruch HaShulchan (E. H. 17:255) documents this practice:

“It is a major principle (Klal Gadol) regarding permitting Agunot to remarry that in any case where a lenient ruling is not straight-forward and a Rabbinical ruling is necessary, even the greatest of Rabbis should not issue a permissive ruling until two other great Rabbis concur with this ruling. This has always been the practice of all eminent Rabbis, as is evident from all of the responsa literature . . . and one should not deviate from this practice.”

In our case, the Beth Din of America’s leading Dayanim—Rav Gedalia Dov Schwartz and Rav Mordechai Willig—deliberated concerning the World Trade Center Agunot. In addition, before it permitted these women to remarry, the Beth Din of America consulted with Rav Ovadiah Yosef and Rav Zalman Nechemiah Goldberg, who issued permissive rulings. The Gemara (Yevamot 121a) might provide a source for the practice of consulting numerous authorities before ruling on the status of Agunot. In the context of a discussion about Agunot, the Gemara cites a verse from Proverbs (11:14) to teach that salvation comes when one seeks much advice.

 Teshuvot Chavatzelet HaSharon (E.H. 28) records his practice (as he learned from one of his teachers) in resolving Agunah situations. First, he would thoroughly research the facts of the situation. He would employ his own common sense to consider whether it appeared logical to conclude that the husband had died, and only subsequently would he explore whether his initial assessment was consistent with Halacha. Rav Yosef Eliyahu Henkin writes (Lev Ivra, printed in Kitvei ha-Gria Henkin, p. 164) that this is the accepted practice. In the World Trade Center situation, Rav Yona Reiss and his assistants at the Beth Din of America devoted months of meticulous research, in coordination with many public and private agencies and firms, to compile the “raw material” from which the Dayanim of the Beth Din of America could reach conclusions. His research included obtaining telephone, cell phone, subway, and elevator records, as well as the results of DNA testing and dental records. In fact, the leniencies of the Gemara and all subsequent authorities are predicated on the assumption that exhaustive research has been undertaken.

Meticulous proceedings in the Beit Din are a hallmark of properly resolving Agunah situations. The Beit Din must know the appropriate questions to ask witnesses and how to collect information from the witnesses properly. Indeed, collecting evidence improperly has in the past impeded a lenient resolution of Agunah situations. (See for example, Beit Shlomo, Even HaEzer 43.)

Hearing the Testimony

The Otzar HaPoskim (8:204) notes that the authorities always emphasize in their Agunah responsa that they issued very stern warnings to the witnesses about the importance of testifying truthfully. Although a warning against perjury is a standard feature at all Beit Din proceedings (see Shulchan Aruch, Choshen Mishpat 28:7), in the context of Agunot, the Beit Din administers sterner warnings than usual. This practice balances the fact that many rules regarding the validity of witnesses and evidence are relaxed for the purposes of permitting an Agunah to remarry. For example, women (even including the Agunah herself), relatives, and those who are inadmissible witnesses merely on a Rabbinic level are all acceptable witnesses in this context (Yevamot 121-122, and Shulchan Aruch, E.H 17:3). Hearsay evidence (Eid MiPi Eid) and the testimony of one witness are also valid specifically regarding Agunot (ibid.). The stern warnings counterbalance these leniencies.

Moreover, some well-meaning people might be tempted to lie in order to help free the Agunah. If they believe that the husband has died based on questionable evidence, they might present their conclusion to Beit Din as absolute knowledge. The severe warnings serve to counter such attitudes. Indeed, the Rambam (Hilchot Geirushin 13:29) explains that Chazal relaxed the laws of testifying in the context of Agunah because people are severely disinclined to testify falsely when the lie can be discovered, thereby ruining their reputations. The severe warning reinforces this attitude, as it instills fear in the witnesses that they will face harsh consequences if they are caught lying.

Interestingly, Rav Ovadiah Yosef (Yabia Omer, Even HaEzer 8:18) accepts the testimony of most contemporary non-observant Jews in the context of Agunot. This ruling is quite noteworthy because he repeatedly rules (in numerous Teshuvot in the same volume of Yabia Omer) that a non-observant Jew is not a valid witness in any other area of Halachah.

Issuing a Ruling

The Otzar HaPoskim (8:210) notes that Poskim try to collect many reasons to support a lenient ruling about an Agunah, reflecting the enormous responsibility that weighs on the shoulders of Poskim who issue rulings on this matter. Thus, even if one particular reason convinces a Rabbi to rule leniently, he will still seek additional reasons to strengthen his ruling. Finally, Poskim must act prudently when issuing lenient rulings regarding Agunot. The Otzar HaPoskim (ibid.) notes that many rabbis wait until the end of a year from the time the husband disappeared to issue a lenient ruling. Indeed, Rav Gedalia Dov Schwartz reported that when he consulted with Rav Ovadiah Yosef regarding one of the World Trade Center Agunot, Rav Yosef agreed with the ruling, but advised that the Beth Din of America wait until a year had elapsed since September 11, before issuing a lenient ruling.

The Otzar HaPoskim (8:211) concludes by citing from the Devar Emet (108) that once a duly recognized and competent Beit Din has issued a lenient ruling to permit an Agunah to remarry, another Beit Din or Rabbi should not attempt to revisit the case and review the cogency of the Beit Din’s ruling. Otherwise, the Agunah’s plight would never be truly resolved until she received the approval of every Halachic authority in the world, which is obviously unnecessary.

The Range of Possible Scenarios

We shall divide our discussion of actual cases into three basic categories. In the first category, human remains have been found and the Beit Din must determine that the remains are those of the missing husband. In a more complicated type of case, no body has been discovered but evidence proves that the husband was, at the time of the attacks, in a part of the World Trade Center where all or nearly all people perished. The final category is when no empirical evidence proves that the husband was in the disaster’s location, but following his usual routine would have led him to be there.

The Sequence of Events on September 11, 2001

Rav Mordechai Willig records the key events of the attacks on the World Trade Center in his essay in Yeshiva University’s Kol Zvi. The first plane hit the North Tower of the World Trade Center at 8:46 a.m. between floors 93 and 98. The Beth Din of America determined (after 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 part of the building at the time of the plane’s impact could not escape. Indeed, there are no known survivors from the ninety-second floor or above.

The second plane hit the South Tower at 9:02 a.m. between floors 84 and 87. Of those who were at floor 78 and above at the time of impact, only ten are known to have survived. The ten who survived were standing by “Stairwell A.” The elevators and “Stairwell B” were destroyed by the impact of the plane. 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 it were able to survive. The ten survivors sustained very serious injuries and would not have survived without immediate hospitalization.

We will continue, IY”H and B”N, in the next two weeks to describe how Batei Din permitted all of the World Trade Center Agunot to remarry.