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Ask the Rabbis // Whistleblowing

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Ask the Rabbis // Whistleblowing

July 1, 2015 in 2015 July-August, Ask the Rabbis, Featured
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Is whistleblowing a Jewish obligation?

 

INDEPENDENT

Whistleblowing is a precarious issue in Jewish law. It is forbidden to report a fellow Jew to the secular or civil authorities when we know that the punishment will be far more stringent than that suggested by Torah standards. For example, if we know a Jewish person is embezzling a lot of money, by Torah law the sentence would be restitution to the victims in amounts double or more than what was stolen. By civil law, the culprit could languish in prison for decades. And prison for monetary crimes is by Torah standards “cruel and unusual punishment” (Iggrot Moshe, Orach Chayim, Vol. 5, 9:11). The only exception to this rule is in situations when the action of the perpetrator is threatening the well-being of the community (Shulchan Aruch, Cho’shen Mish’pat, 389:12) or in any situation in which attempts to resolve the issue by way of a rabbinic court have been exhausted and proven ineffective (Iggrot Moshe, Cho’shen Mish’pat, 1:8). Of course, with non-monetary crimes, such as crimes of physical harm or abuse, the danger posed by the perpetrator requires immediate remediation by whatever means, according to all sources.

Rabbi Gershon Winkler
Walking Stick Foundation
Thousand Oaks, CA










HUMANIST

Whistleblowing can be analyzed as a form of self-defense or defense of the community. The Talmud asks whether the residents of a city under siege can break the Shabbat to defend themselves (Eruvin 45a). The answer is that if the siege is launched with the intention of killing the city’s residents, then they must pick up arms to defend themselves, even on Shabbat. Moreover, says Maimonides (Laws of Shabbat 3:23), to delay bringing help until after Shabbat is forbidden. What if instead, in the modern era, an employee learns about a company’s illegal practices, particularly those that pollute the environment, which, in effect, have the consequence of “killing the city’s residents”? Then we might conclude that whistleblowing is mandated and should be done right away.

The Talmud (Sanhredrin 72a) also takes up a different matter of self-defense: If someone comes to kill you, you should rise up and preemptively kill the other person first. This ruling is grounded on two principles. First, we want to stop an evildoer, for his own sake, from perpetrating a sin or crime. Second, we should have self-preservation in mind.

Of course, potential whistleblowers may be reluctant to act lest they lose their jobs or face other consequences, which is why there are anonymous tip lines. Still, we ought to have the courage to act, and act speedily, before any more damage can be done.

Rabbi Peter H. Schweitzer
The City Congregation for Humanistic Judaism
New York, NY

RENEWAL

One can deepen Jewish ethics by applying principles originally developed for relationships between Jews to our relationships with the whole world. Few civil laws encourage what Judaism emphasizes: each person’s responsibility to stop sexual abuse and other forms of destruction of the rights, health and assets of individuals, companies and nations. The Brisker Rebbe asked, “Why was Job punished?” and answered that it was for “keeping silent about the iniquity being perpetrated.” Putting clergy, communal, governmental and business leaders on pedestals and believing them incapable of despicable acts is naïve and leads to complicity in allowing harm: “If you tell a wicked person that [s]he is a tzaddik—a righteous person—you deserve to be cursed” (Proverbs 24).

Some confuse the rules against mesira, opportunistic informers seeking personal gain, with whistleblowing for the collective good. To do only the latter, one can combine the steps recommended by the Chofetz Chaim and Ohr Yechezkel for addressing possible wrongdoers: 1) Ensure your information is accurate. 2) Confront the person one-to-one, gently. 3) Be careful not to exaggerate the nature of the offense. 4) Intend to harm no one; don’t risk your life and livelihood nor that of innocent others. 5) Avoid unnecessary publicity. 6) Review your motives. 7) Expose only what is essential. And finally, be sure of your facts, for, as Rabbi Israel Salanter says, “It is quite easy to write, but far more difficult to erase.”

Rabbi Goldie Milgram
ReclaimingJudaism.org
Sarasota, FL

RECONSTRUCTION

Our exceedingly ethical tradition exhorts us to “hate evil, and love what is good” (Amos 5:15) and not to defer to “the mighty, but judge your neighbor righteously” (Leviticus 19:15). We also celebrate the primacy of life itself (pikuach nefesh) over the interests of auto executives, pharmaceutical and oil companies and countless others who have famously put money above morality. Shofars (or whistles) must be blown by those in the know, with strong support from Jewish values.

Still, such decisions are challenging. Whistleblowing may violate confidences and trust, which are also important Jewish values. Adversity awaits whistleblowers and their families, and this, too is a factor. Humility, as always, is key, lest we merely be talebearers (forbidden in Leviticus 19:16). Plus, as with the commandment to avoid lashon hara (negative speech), intervention is mandated only when success seems likely: We may choose to tilt at windmills, but it’s not required.

Yet truth trumps all. Truth, emet, contains the first, middle and last letters of the alphabet, suggesting our responsibility to surface “the whole truth, and nothing but”—even when the truth implicates your friend, colleague, employer, army or nation. May whistleblowers, the risk-taking agents of emet, be heard and heeded.

Rabbi Fred Scherlinder Dobb
Adat Shalom Reconstructionist Congregation
Bethesda, MD

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REFORM

We have an obligation to refrain from lashon hara, gossip and improper speech, and from rechilut, slander. A potential whistleblower must be sure to have accurate information and certainty of the wrongdoing. To proceed otherwise could cause undue harm to oneself and to others.

Leviticus 19:16-17 charges us with the responsibility to offer tochachah, rebuke, when we see a neighbor doing wrong. Yet Jewish law considers that if the rebuke will likely fall on deaf ears because the person is of higher station or beyond our sphere of influence, or if there is potentially substantial personal cost to such rebuke, one is not obligated to offer it.

Jewish law also requires us to consider whether lives are at stake. If there is a risk of loss of life, then we are obligated to report wrongdoing to the appropriate authorities, even at our own personal risk of livelihood or reputation. The complexity of whistleblowing requires us to consider these sometimes competing Jewish values to find the ethical course of action.

Rabbi Laura Novak Winer
Fresno, CA

CONSERVATIVE

The most general answer to this question is found in Deuteronomy 6:18: “Do what is right and good in the sight of the Lord…” While in some places this verse is associated with obeying the commandments, it may also be interpreted more generally. The rabbis in the Talmud insisted that this verse requires us to go beyond the letter of the law, even speaking out when one witnesses a wrong.

Leviticus 5:1 is more specific. This verse urges all who have information about a certain wrongdoing to step forward and share what they know. It teaches that if a person has witnessed something wrong but withholds testimony, that person has compounded the wrong by failing to assist the judicial process. The sages of the Talmud say the individual who has knowledge about a crime or legal dispute and does not come forward to divulge it is “innocent before a human court but liable in the sight of God” (Baba Kamma 56a). The rabbis further interpret this verse to mean that we are responsible not only for the wrongs we commit but for the things we should do but fail to do. During the Holocaust, bystanders who did not act to oppose evil caused enormous, irreparable harm.

Rabbi Amy Wallk Katz
Temple Beth El
Springfield, MA

MODERN ORTHODOX

Before asking if one is Jewishly obligated to become a whistleblower, we must ask if it is permitted. After all, in almost every case of whistleblowing, the whistleblower is publicly speaking lashon hara. The answer, at least according to the Chofetz Chaim, is that one is allowed to speak negatively about others to prevent harm to a third party (Sefer Chofetz Chaim, Chapter 10, paragraph 2).

But is one obligated to whistleblow if this will potentially cause a job loss or jail time? I would argue that if lives are at risk, then one would be so obligated, for the Torah says, “Do not stand idly by the blood of your friend.” There is a halachic discussion about whether or not one must risk his or her own life in order to save another, but in most whistleblowing cases the whistleblower’s life is not in danger—unless one is whistleblowing against a tyrannical government. If the harm to third parties is financial, then there is more flexibility, since the whistleblower, too, may suffer financial loss. We can compare this to a case of “returning a lost object,” where there is a conflict between looking for one’s own object or a friend’s: In this case, the Shulchan Aruch rules that one may take care of oneself first, so as not to become a pauper. In each case, one must weigh the pain and harm that will be inflicted on third parties against the pain and harm inflicted on the whistleblower and his or her family.

Rabbi Nissan Antine
Beth Sholom Congregation and Talmud Torah
Potomac, MD

ORTHODOX

In theory, Jewish law recognizes an absolute obligation to intervene to help people who might sustain a loss—of life, limb, even of property. The Gemara says that if you see floodwaters about to ruin somebody else’s field, you have an obligation to divert them, just as you are obligated to return property that has been stolen or lost. To Maimonides, the obligation to save even property is part of the commandment “Do not sit back idly over the blood of your fellow,” though some other authorities think this is what our Supreme Court justices would call an argument residing in the penumbra.

In practice, if your intervention is going to harm another party, you have to do some very tough weighing. As with all Jewish law situations, “It’s complicated.” Edward Snowden, because he endangered others, should in my opinion be considered a major evildoer. Another factor is the cost to the individual. If intervention is an absolute obligation, what does that mean to an attorney who finds that a client is planning mischief against a third party? In the United States we have a presumption of confidentiality, which is good public policy but sometimes puts secular law at cross purposes with Jewish law. On the other hand, not everything that can be brought to public attention needs to be. Though we like to think in the United States that there’s a public right to know about everything, the law doesn’t support lashon hara except when there is a clear and present danger.

Rabbi Yitzchok Adlerstein
Loyola Law School
Los Angeles, CA

CHABAD

Jewish tradition posits that by not protesting wrongdoing we are a partner in that wrongdoing (Avoda Zara, 18a). The core Judaic doctrine of specific, necessary Providence tells us that anything we come to know necessitates action on our part, for otherwise why would G-d allow this knowledge into our psyche? Each of us has a personal obligation to prevent physical, emotional or financial harm to another. This is included in the obligation not to “idly stand by the blood of your fellow” and the obligation to return lost objects, which includes preventing monetary loss. The prohibition against lashon hara, speaking ill even if true, does not apply when the goal of the speech is any of the above.

Jewish law defines theft from the public as far more serious than theft from an individual. As Jews, we have an obligation to ensure that society follows the universal human values articulated in the Seven Noahide laws. The seventh law is justice: All humanity should be governed by the rule of law in an equitable society protected by a just and effective legal system.

Rabbi Shlomo Yaffe
Institute of American and Talmudic Law
Watertown, MA

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