JustASC

Washington attorney Nathan Lewin responds to Rabbi Shmuel Herzfeld, the DC rabbi whose New York Times oped called on the Orthodox establishment to appoint an ”independent team that would make sure the [Agriprocessors kosher] plant upholds basic standards of kashrut and worker and animal treatment – and that it is in full compliance with the laws of the United States.”

Lewin is almost exclusively concerned that Herzfeld would challenge the kashrut of the plant under ethical grounds — and if Lewin has even a shmidgen of unease about the human toll of the mounting allegations against the plant, it is not to be found in his rebuttal.

Instead, a lawyer to the core, he tries to discredit the historicity of Herzfeld’s reference to Rabbi Israel Salanter, who according to Herzfeld “refused to certify a matzo factory as kosher on the grounds that the workers were being treated unfairly.” Lewin can’t find a solid scholarly reference to the Salanter story — implying that if the principle of judging a factory’s kashrut by the treatment of its workers was not established by a 19th-century sage, it can’t possibly be an operable criterion.

“No Salantar — no justice.” Try that on a bumper sticker.

It’s an odd gambit on Lewin’s part, because if the plant has been “pilloried” by the press and if Herzfeld is one among many “vigilantes,” as he asserts, what difference would it make what Salanter did or didn’t say about ethics? If the allegations are untrue, and Agriprocessors is a legal and ethical paragon, why argue over what constitutes the “ritual acceptability” of kosher meat? It would have made more sense to have written, “Even if we accept R. Salanter’s opinion as genuine, it does not apply in a case in which a factory has not been proven to have abused its workers.” But then, Lewin would have lost his opportunity for a “gotcha.” 

The other two points in his rebuttal — emailed around by Lubicom, one of Agriprocessors’ pr firms – are similarly narrow and pilpulistic. Basically, he absolves Agriprocessors of any responsibility for those it employs.

Missing is any sense of a larger picture — like the one captured in a devastating editorial in the Forward that recounts the past two years of journalistic and government investigations, and the sordid history of the Rubashkin family that runs the plant.  What remains stunning is the degree to which the kashrut and legal authorities closest to Agriprocessors continue to deflect the ethical and legal implications of the allegations. When it comes to whether kashrut should have an ethical component that rises above what happens on the slaughterhouse floor, their stance is essentially, “we answer to a lower authority.”

Lewin’s rebuttal after the jump:

REPLY TO RABBI SHMUEL HERZFELD

by Nathan Lewin
In a front-page article asserting that minors had been hired to work in an Iowa kosher meat-packing plant and in an editorial calling the plant the modern equivalent of Upton Sinclair’s “The Jungle,” the New York Times joined the media frenzy that has, over the past two months, with very little basis in fact, pilloried AgriProcessors, the country’s leading kosher slaughterer and packer of beef, and driven federal and local law-enforcement personnel to threaten dire consequences to its owner and employees. Insult was heaped on injury when an Orthodox rabbi in Washington, D.C., joined the vigilantes and published an Op-Ed piece in the Times of August 6, claiming that the news accounts “call into question whether the food processed in the plant qualifies as kosher.”
This nationally published challenge to the kashruth of the AgriProcessor product contradicts the unanimous opinion of highly respected and universally recognized kashruth-certifying agencies that have repeatedly endorsed – even while the media attack was ongoing — the ritual acceptability of AgriProcessors’ product. Nonetheless, Rabbi Shmuel Herzfeld of Ohev Sholom Synagogue in Washington (where the author of this response has been a member for the past 40 years) – a young rabbi who has achieved great success in reviving, for Jewish residents, a neighborhood that had been abandoned by its Jewish population and has electrified the entire Washington Jewish community with innovative programs – raised “questions” about AgriProcessors’ kashruth in this widely read forum.
Rabbi Herzfeld’s column cites the following three grounds for questioning the religious suitability of AgriProcessors’ meat: First, he says that “there is precedent for declaring something nonkosher on the basis of how employees are treated.” The precedent he cites is that Rabbi Yisroel Salanter, the highly respected 19th century founder of the “Mussar” movement, is, according to Rabbi Herzfeld, “famously believed to have refused to certify a matzo factory as kosher on the grounds that the workers were being treated unfairly.” Rabbi Yisroel Salanter is as gold-plated an authority as one can imagine. If he actually said that unfair treatment of workers renders a product non-kosher, one would have to give that ruling great weight.
Second, Rabbi Herzfeld cites allegations in an affidavit filed by the immigration authorities who raided the AgriProcessor plant in Iowa on May 12 to arrest illegal aliens employed there. He says that the affidavit alleges “that an employee was physically abused by a rabbi on the floor of the plant.” Rabbi Herzfeld says that “this calls into question the reliability and judgment of the rabbi in charge of making sure the food was kosher.” If, in fact, the “rabbi in charge of making sure the food was kosher” did assault an AgriProcessors employee, I would share Rabbi Herzfeld’s doubts regarding that rabbi’s “reliability and judgment” on issues relating to kashruth.
Third, Rabbi Herzfeld points to the arrest of “two workers who oversaw the poultry and beef division” for “helping illegal immigrants falsify documents.” He says that if these supervisors “were willing to break immigration laws, one could reasonably ask whether they would be likely to show the same lack of concern for Jewish dietary laws.” This is a reasonable question if, as one might assume from Rabbi Herzfeld’s description of the arrests, the arrested supervisors had any responsibility whatever for AgriProcessors’ compliance with “Jewish dietary laws.”
But it takes a little digging beneath the surface of Rabbi Herzfeld’s assertions to demonstrate how fallacious they are.
First, the Reb Yisroel Salanter story that he describes as “famous” does not appear in any biography of Rabbi Salanter that I have been able to find. Rabbi Hillel Goldberg’s marvelous history of the Mussar Movement titled “The Fire Within,” which has a comprehensive section on Rabbi Salanter, tells only of his having advised his students that, when they were preparing matzos for Passover, they should not overwork or make excessive demands of the female workers who were kneading the dough and otherwise preparing for the matzo baking. That same account appears in a Hebrew volume titled “Bikkurei Shai,” written by the Chief Rabbi of Givatayim, Israel.
I e-mailed Rabbi Hillel Goldberg to ask him whether he had ever heard that Rabbi Salanter had refused to certify the kashruth of a matzo factory because it was unfair to its workers. He replied that the only story on this subject that he knew of was the one that had appeared in his book. He added that it was not likely that Rabbi Salanter would ever have given a certification (“hashgacha”) on matzo because he “famously” avoided acting as a community rabbi. And I myself wonder whether it is not an anachronism for Rabbi Herzfeld to ascribe to the mid-19th century the community practices of today. At a time when all matzos were being hand-baked (and the rabbinic controversy over the kashruth of machine-made matzos was still several decades in the future), what “matzo factory” was seeking the “certification” of Rabbi Salanter?
Second, a closer look is warranted at Rabbi Herzfeld’s assertion regarding the case of the abusive “rabbi.” Nowhere in the government’s affidavit is any accusation reported against any rabbi whose job was “making sure the food was kosher.” The term “rabbi” is used interchangeably throughout the affidavit with the term “Hasidic Jew.” Obviously, any employee on the floor of the AgriProcessors plant who had a beard and wore a yarmulke was described by the government’s Guatemalan informant as a “rabbi” or “Hasidic Jew.” If one such Jewish employee – with no responsibility for kashruth – abused an employee, it does not “call into question the reliability and judgment of the rabbi in charge of making sure the food was kosher.”
Third is Rabbi Herzfeld’s reliance on the arrest of two supervisors. Would the arrested supervisors – who, one assumes from Rabbi Herzfeld’s question, are either certifying rabbis or, at least, Hasidic Jews responsible in some manner for kashruth –show the same disdain for Jewish dietary laws as for American immigration law? Rabbi Herzfeld does not tell us that the two arrested supervisors were named Juan Carlos Guerrero-Espinoza and Martin De La Rosa-Loera – supervisors at AgriProcessors whose concern or lack of concern for Jewish dietary laws is as irrelevant as one can imagine.
At a time of the year when we recall that vicious reports to authorities led to the destruction of the Temple, Rabbi Herzfeld might take a more careful look at the grounds for his public allegations.

Nathan Lewin is a Washington attorney who has represented AgriProcessors in the past and is currently participating as counsel in the defense of the company and its owner..