Agunot of 9/11 - Rav Zalman Nechemiah Goldberg - Techumin volume 23

In this teshuva printed right after that of Rav Ovadiah Yosef, Rav Goldberg deals first with the case of Thierry Saada, and then considers several other unnamed victims of the 9/11 terrorist attacks. While Rav Yosef spends a large part of his teshuva considering issues of rov, Rav Goldberg discusses several other aspects of these cases, which I am summarizing below.

1) In discussing the use of the conversation between Mr. Saada and his wife at 8:52 (six minutes after the plane hit the tower), Rav Goldberg notes that we can accept the testimony of the wife on this account, since there is no reason to suspect that she is lying and since we have the independent evidence of phone company records that such a call happened at that time.

2) In terms of knowing for certain that the call was placed from Mr. Saada's office (which, since it was on a cellphone, is not clear from the phone records), Rav Goldberg relies on the chazaka that he went to his office as usual that morning, since there is no reason to believe that he did anything different. He rules that this chazaka outweighs the chazaka that he was last seen alive as well as the chazaka that his wife is a married woman.

At this point in the teshuva, Rav Goldberg notes that one year after the tragedy, Saada's remains were identified via DNA and thus his wife should certainly be permitted to remarry.

3) Rav Goldberg discusses various forms of identification of the body that can be used to confirm that an individual has died. He approves of using dental records, bone samples, and DNA, and is not concerned that there would be an attempt to provide counterfeits. In the case of dental records, he assumes that no dentist would risk his reputation by participating in an attempt to provide false records. In the case of bones, the only way to have one's bones be present at the site of the tragedy would be to have them removed in a hospital and then planted at the site. Of course, this would produce a record of the surgery at the hospital, which would undermine the ruse.

With regard to DNA, Rav Goldberg distinguishes between סימנים and טביעת עין. The former refers to general signs, such as a wound on the head, which the observer notices but cannot describe in precise detail. The latter refers to distinguishing features which are unmistakably belong to a specific individual. As there is a 1-in-10 billion chance that two people will have matching DNA, Rav Goldberg rules that DNA falls into the category of טבעת עין and thus can be used as conclusive evidence.

[Parenthetically, he rejects the objection that states that since we have done collected DNA from all people who ever lived we can therefore not rely on it. Rav Goldberg counters by claiming that this line of thinking would undermine the very concept of rov - how do we assert that most domesticated animals are kosher if we have not seen every single such animal? Obviously, we have to work with that which we know from our experience.]

Rav Goldberg also accepts as good identification personal items that one does not lend out, such as wallets and credit cards.

4) In one case, the man presumed dead was a passenger on one of the planes, and the question in this case is whether or not we should be concerned that he disembarked when the plane stopped in Newark (from Boston). However, since the airline had no record of him disembarking we can assume that he did not, especially since it would be in the best interest of the airline for him to disembark (since that would save them on insurance for the loss of his life). Furthermore, we assume that the airline keeps accurate records, since the damage to their reputation if they would lose a passenger would be substantial.

5) One man who was missing and presumed dead was reported to have been in the building by a woman who was not שומרת תורה ומצוות. Rav Goldberg rules that if we can determine that her report about that man was mentioned as part of her larger description of the events (מסיחה לפי תומה) and not as specific evidence about him, then we can accept her words in lieu of other testimony to place the man in the building at the time of the attack and collapse.

Agunot of 9/11 - Rav Ovadiah Yosef Techumin 23

Thierry Saada (see here for a tribute) worked for Cantor Fitzgerald on the 104th floor of the World Trade Center. On the morning of September 11, 2001, he called his wife from his office to wake her at 8:20. After the planes hit, she called his cellphone and received no answer, but several minutes later he called her back to tell her that the building was being evacuated. She received no further contact from him after that time. Email records show that he sent an email from his office at 8:21 that morning. Given the fact that his body was never found, can we presume that he is dead and his wife is permitted to remarry?

Rav Ovadiah Yosef's response to this painful question presumes almost from the get-go that his wife will be permitted to remarry. The Gemara in Yevamot 121b says that if a person falls into a fiery furnace we can testify that he is deceased - and certainly that standard should apply to this case, where someone was located above the raging fire, which experts have testified likely resulted in many deaths from smoke inhalation or burning before the buildings collapsed. Rav Yosef notes that we do not follow the view of the Yerushalmi brought by Tosafot that states that we can hope that a miracle happened similar to what happened to Chananiah, Mishael, and Azariah when they were saved from the furnace. Rather, if all factor point to the fact that the person has died, we can assume that to be the case and permit his wife to remarry.

The next section of the teshuva deals with issues of rov, and to what extent we can be strict or lenient in the presence of multiple majorities (such as the fact that a majority of people on those floors did not survive, and that a majority of survivors made contact with their relatives), and whether or not it matters if they occur simultaneously.

Rav Yosef then notes an interesting and logical view of the Chatam Sofer, who states that while during the time of the Gemara we were perhaps concerned that someone who was missing might resurface even after a long time, nowadays with the advent of sophisticated mail systems we would assume that we would hear from someone who had gone missing. Even more so in our days, says Rav Yosef, when we have telephones and newspapers and consulates and all sorts of ways for someone to make contact with his family. Furthermore, as Mr. Saada's wife was in her 9th month of pregnancy, and the child born two weeks later had both a brit mila and a pidyon ha-ben, it would stand to reason that if he were alive, Mr. Saada would have tried to get in touch with his family in some way. The fact that he did not serves as ample proof to his tragic demise. While there are those who reject the thesis of the Chatam Sofer (and indeed there are still cases today where people resurface after a long absence), Rav Yosef feels that it may certainly be accepted in this case, certainly when combined with the extreme likelihood that no one survived if they were on the floors above where the planes hit (and especially since emergency rescue squads combed the wreckage of the buildings for weeks and found no one).

Finally, Rav Yosef notes at the end of the teshuva that one many rely on the sound of a voice over the telephone as reliable proof that a person existed. He cites sources that permit a husband to order a get to be written via telephone and that accept testimony that a man died based on the witnesses recognizing his voice. As such, the fact that the husband spoke with his wife after the planes hit is sufficient for us to establish that he was, in fact, in the building (in other words, we trust that the wife knew that she was speaking with her husband and that he was truthful in claiming that he was in the building. I would note that since he called on a cellphone, it is harder to use cellphone records to pinpoint his location. Had he called from an office phone, which likely was not working at that point, the call could have been traced, thus providing a more reliable electronic record.).