A Not So Grand Jury

I just completed* Grand Jury service here in DC – 8 weeks of Wednesday through Friday all day.  I knew it was going to be unpleasant, but I had no idea how much it would affect my opinion of the nature of the legal system in this country.  Sol Wachtler was famously quoted by Tom Wolfe as saying that a good prosecutor could indict a ham sandwich.  He was not, and is not, wrong.

My GJ was the one designated to handle the so-called “RIP” cases – that’s “rapid indictment program”, where relatively straightforward cases are brought forward to get an indictment.  What they mean by “relatively straightforward” is well summed up by the assistant US attorney (AUSA) as “guns, drugs, and cars”.  Probably two thirds of our cases involved some combination of these three elements.  We didn’t have a “bingo” with guns, drugs, AND cars, but we had all of the combinations of the two. Drugs were certainly the plurality if not the majority of the cases.

We did have a smaller number of assaults, robberies, sex crimes, and homicides.  My experience was bad – but then I reminded myself that there was another jury across the hall that focused on the sex crime cases.

The GJ was comprised of 23 people – about half black and half white, six men, 17 women, with a variety of age ranges (skewed a little older than average due to young people not becoming DC residents).  16 people were required to have a quorum, and for all counts, there had to be 12 votes to indict on each count.

A note on how this works: the Fifth Amendment says, among other things, that “no person shall be held to answer for a capital or other infamous crime, except upon presentment to a grand jury…”  In practice, this means that Federal felonies (infamous crimes) require an grand jury to indict, while a Federal misdemeanor does not.  DC, by virtue of not being a state, has to strictly follow that rule (and the city is effectively treated as yet another federal district, while the states have a lot more leeway in defining “infamous” more narrowly.

Our statistics (with the caveat that because I had to leave early on Fridays, I missed a few cases):

We had 119 cases as of the time I left.

We had 139 targets of investigation (people who in an actual trial would be called “defendants.”)  This is because some of the cases involved multiple defendants (like a drug dealer and the “go between” who facilitates the deal).

Of those, 12 targets were women.

Those 139 people were charged with 337 counts, and all of them had at least one felony (which is why they were going before a GJ), along with occasional misdemeanors.

Of the 337 counts people were charged with, 5 counts were removed by the AUSA before we voted on them.  A typical reason was that we were told to vote on a “large capacity ammunition feeding device” charge, but when a cop testified, he said that the capacity of that magazine was 10 (the statutory limit in DC).  In addition, we declined to indict on exactly one count out of those 337.  Thus, lots of ham sandwiches.

I have a couple of random thoughts, and then a few proposals:

  • The criminals arrested for carrying a pistol without a license (CPWL) have never heard of holsters.  The sheer number of people who were identified by police via clutching something while running, etc, is really striking.
  • Criminals are also really stupid.  The big takeaway I’ve gotten here is “never give any information whatsoever to police if you’re in trouble”.  Don’t try to explain yourself (“it’s my girlfriends’ PCP”, “I don’t know how the gun got in my purse” etc), because it absolutely IS held against you.
  • Our laws are extremely poorly written.  Example: Possession of an open container of alcohol (POCA).  You may notice that (a)(2) indicates “in a vehicle”.  As far as the AUSAs are concerned, this includes the trunk.  The implication is that there is in fact no legal way to transport a non-factory-sealed bottle of whiskey from one location to another.  The AUSAs were challenged on that specific law several times, and were “strict constructionists” about it – and argued that we had to just “follow the law”.
  • Another example: there are synthetic cannabinoids which are listed on the controlled schedule (all of them have horrible chemical names) – an example of a controlled substance is “AB-Fubinaca”.  However, drug producers are not idiots, and have made some similar drugs (e.g. “AB-Chminaca”) which is not technically on the schedule list.  The AUSAs will charge “attempted distribution of synthetic cannabinoids” if they bust someone and it turns out to be non-controlled.  The justification of “attempted distribution” is that the street names used are the same (Scooby, Bizarro, etc).
  • The resources used in drug busts are unreal – a few undercover cops (UC) – both buying and watching, an arrest team, jailers, the grand jury, and the court system.  The typical drug bust was a buy which was under $40, and most often under $20.
  • Another example of a screwy law: Possession of a Firearm During a Crime of Violence (PCOV).  This sounds reasonable, right?  If you fight with someone and have a gun, it would make sense for there to be a harsher punishment.  Except the “or dangerous crime” portion – when you go to the definitions there, it is specifically defined as “possession of a controlled substance with intent to distribute (PWID)”.  Every one of the PCOV charges we saw was someone charged with PWID, and the AUSAs take an extreme latitude about chaining interpretations together – hypothetical example: a person is busted with 5 ziplock bags of crack.  At his home, there’s more crack, and an unloaded gun.  He would be charged with PWID and PCOV, even though he wasn’t carrying the gun outside.
  • All of those drug busts were in black areas, and the overwhelming number of people had names which (when correlated with arrest locations) processed as “black”.
  • Many of the cops and AUSAs had a surprising ignorance about firearms terminology and function.  There were a surprising number of “large clip” comments, and several people didn’t know how to determine the capacity of a magazine.

So here’s my thought:

First, we should legalize all drugs.  Yep, all of them.  Quit spending all of the time and resources hounding black men for doing this.  Take all of the money we aren’t spending on this, and put 10% of it into PSAs of “don’t do this it’ll kill you”, and another 10% into low-cost drug treatment programs.  Pocket the other 80%.  We can’t effectively stop people from killing themselves if they’re determined to do so, and what we’re doing just ruins their lives in the meantime.  (Example: a drug felony means that a DC resident can *never* vote or own a gun).  The net effect of these drug laws has been to disenfranchise a tremendous number of black men for their entire lives, without making the streets noticeably safer or reducing the overall drug trade.

Second, we need to make our gun laws make more sense.  It’s extremely hard to get a concealed carry permit in DC, and that should be fixed – there’s currently a subjective element to it, and that’s not how permitting laws should be written.  The charge of unlawful possession of ammunition (UA) is goofy – the AUSAs interpret ammunition as being per firearm – so if you have two loaded, unregistered guns, you’d get two UA charges.  However, the law doesn’t say that – if you have a valid registration, you are allowed to possess ammunition, full stop.

I saw a lot of overcharging targets, and I was a relatively lonely voice in my opinions about this – I look at “probable cause” as being a standard which is higher than “plausible”, and I was not in the majority there.  I’ve been called to jury duty eight times since moving to DC, and have been empaneled on five juries (including one GJ).  The next time I go in for voir dire, when they ask “can you be impartial”, I’m going to have a real problem answering yes.  This system is currently rigged, and needs to be changed before more injustice is done.
* there are two more “recall” days, for us to finish up any leftover work, such as Gaitherizing any outstanding indictments.

Check, Please

I’ve had several doses of talk about “privilege” thrown at me recently.  I’ve spent a little time thinking about this, and I’ve come to the conclusion that the folks who toss this stuff about and treat it with great importance are as clever, and as wrong, as the phlogiston chemists.  Now, what do I mean by that?

“Privilege” as described in the relevant circles, is effectively an unearned advantage due to one’s nature – there can be white privilege, Jewish privilege, etc etc etc, and that intersectionality (sic) is effectively the idea that various portions of one’s identity as they interact with other portions create something wholly different which is qualitatively greater than the sum of the parts.


A lot of words are spent slicing and dicing groups using particular jargon, to no practical effect whatsoever.  Why is this?  Because at the root of the issue is the fact that we are not members of a group first and individuals second – rather, we are individuals first, who have some characteristics we share in groups.  The whole privilege conversation completely falls apart when considering that the variation between individuals who share certain characteristics will necessarily be greater than the differences between the average of the characteristics.

That is, all cats are NOT gray after midnight.  So in our real world, the one with the messiness in it, what does it mean to say “you have privilege” about someone’s membership in a particular group?

Absolutely nothing.

In the original sense of pragmatism, there is no information which is gained as a result of these descriptions, and actions don’t change as a result, and therefore these are at best distinctions without a difference.  Yep, that’s the real problem here – the actual predictive power of this language is right up there with blaming weather on water sprites, and all the jargon serves to do is alienate the person being “othered” in that context.  That is, it changes the person being described from “thou” to “it”.  It serves as a way to immediately discredit the opinion of the person described as “privileged,” and find a discrete place for them in a postmodern hierarchy of victims, where to be oppressed is necessarily equivalent to being virtuous.

I’ve had this sort of language tossed at me by several people, who range from the saintly to the less-so.  I’ll speak to the saint: this language has the opposite effect of your intention, and the line of reasoning is sterile, not fertile.

How about this for a suggestion: treat people as individuals, as all being made in the image of God, and approach groupings as a way to search for what we have in common rather than what divides us.

A Bitter Pill

It’s been a little more than a week since my synagogue was rocked by the arrest of Rabbi Freundel.  Elanit spoke eloquently about the first-order effect on Shmini Atzeret;.  Since that time, I’ve seen all sorts; of reactions and even more additional information.

My perspective on the matter might be a bit different from some others.  I’m a convert – and one of Freundel’s converts, no less, but I didn’t have quite the horrific experience which many of the recent (female) converts describe.  I came to Judaism after a long journey through a bunch of different religions (up to and including paganism) – I was reading Rabbi Telushkin’s Jewish Literacy, and I realized that this was exactly what I had been looking for for years.  I initially contacted a nearby Conservative rabbi who enrolled me in the conversion class and gave me a reading list.  Around the time he dismissively brushed off the idea of taharat hamishpaha, I realized he wasn’t the rabbi for me. I switched sponsoring rabbis, and then finished the conversion with the Conservative movement about 2 years after I had started.
Two notes about that: first, the mohel didn’t show up, so my hatafat dam brit was performed by one of the (non-mohel) rabbis there, using a diabetic finger-stick. Relatively high on the unpleasant scale, that was. Second, of the three rabbis, one later left town after allegations about discretionary fund mismanagement, and another got featured on “To Catch a Predator” (in the wrong way).

I was attending the third rabbi’s synagogue, but quickly found myself too far to the right for the Conservative movement. When I went to a local Orthodox minyan, the gabbai checked with his rabbi, and told me I wouldn’t be counted. D’oh!

I called Rabbis Tessler and Freundel, and RBF returned my call first. When I went to meet with him, I wore a suit (dress up to meet the rabbi, ‘natch), and had tzitzit (fringes) out, and at the time had a full beard. He later told me that his first thought was “this guy must be here to talk about his girlfriend,” and that he was really surprised to hear that I wanted to convert myself. By this point I had already taken a year of Hebrew at U Maryland.

After ratcheting up my observance a bit, I converted with him about six months later (shortly after simhat torah 5758). The mohel showed up, and was one of my beit din. My big surprises were getting my circumcision inspected – to make sure that I didn’t need to go have it re-done surgically – no, that wasn’t traumatic at all, and the other surprise was that the men’s mikvah in Silver Spring wasn’t heated at all. In October. Yep, composing an impromptu declaration of faith while standing in extremely cold water was my idea of a good time.

But that was the end of the crummy part.

Sarah and I got married shortly after, and RBF performed the ceremony – his wife Sharon walked Sarah down the aisle, and we got introduced to Kesher Israel by the lovely wedding the community threw for us. We babysat for the Freundel kids when they were little, attended their bar & bat mitzvahs, and even one of their weddings. Sharon was the person we spoke to about our daughter’s name to make sure we weren’t walking into an accidental Hebrew language trap (or picking a name with bad associations).

I’ve been fully welcomed into the community, serving as a mashgiah (kosher supervisor), gabbai (sexton), ba’al tokea (shofar blower), speaker, sheliah tzibbur (prayer leader), board member and later officer, and then president of the mikvah. I’ve taught classes in practical Judaism (primarily directed for converts and the newly observant), and innumerable times I’ve been the person RDBF would send someone to talk to after their first meeting with him (generally after morning minyan) – I would tell people that they’d be evaluated by the questions they asked: “why do we keep kosher” is asked by a person in a different place in the process than “I just bought a chicken and it had a broken leg – is it still kosher?”

So I’m heartbroken. With the actions of which R’ Freundel has been (compellingly) accused, I feel like I just had a big chunk of family taken away.

The betrayal is really raw – this isn’t a private porn addiction, an affair, or the like: this is the perversion of a fundamental Jewish institution. It’s a betrayal of the years we all spent building the mikvah (especially given all of the flack we got during the construction). It’s a betrayal of all of the trust we’ve built since then.

I remember conversations with RDBF on many occasions when some Jewish religious leader or other would get into an ethical or sexual scandal – I would lament that I would wish that being immersed in the study of Torah would have served as a prophylactic against that sort of behavior – that is to say, that being learned would make someone better. He said he understood my disappointment.

He has been a mentor to me, and now that crumbles through my fingertips. I keep hoping that I’ll wake up, and this will turn out to have been the longest dream ever, but I don’t think that’s going to happen.

There are a lot of stages of grief, and I’m probably holding at anger, mostly, but in the words of a good friend, sampling of the different emotions is like a misery tapas.

It isn’t supposed to be like this, with the chief of police on the bimah – people asking (legitimate) questions like “how do I talk about this to my kids”? That just twists the knife. I don’t think I was videotaped (but it’s possible – there were men’s hours recently), but I feel terrible for all of the people who have been. I feel terrible for Sharon and the extended Freundel family, who also didn’t ask for this, and now suffer for something they didn’t do.

I’ve never been prouder of the community and our leadership – Elanit (KI) and Adela (NCM) both acted with all due speed and without hesitation. Not every institution is as responsible or as committed to ethical behavior. But I sure wish they weren’t put into the position to have had to do this. This is horrible.

It is worth noting that many articles are calling for “the keys to the mikvah to be in the hands of women” and the like. That’s nice, but that doesn’t have anything to do with this case, because 5 of the 6 National Capital Mikvah presidents have been women (including the current and immediately past president). The current president of Kesher Israel likewise is a woman. Clearly, being run by women didn’t keep the local rabbi from causing a deep hurt. However, being run by the right women – the best people for the job – meant that their responses have been clear and compelling. The problem is, as Juvenal asked, “Quis custodiet ipsos custodies?” (who watches the watchmen?) – when the person at the root of the web of trust defects, it is nearly impossible to prevent and is devastating.

But back to the issue – this sucks mightily. I miss my friendship, which was apparently gone before I realized it. I miss the trust I had – the sense of innocent search for truth, and the feeling that I had a friend and ally. I miss the feeling that someone was actively trying to protect converts, and actively trying to hold the center against the pull of the left and the pull of the right.

But other than that, Mrs. Lincoln, how was the play?

I know to me it leaves an ashen aftertaste.

For Art’s Sake

Sarah and I went on our second actual date since becoming parents today – this time to see Tender Napalm at the Signature Theatre (the plus side of season tickets is the built-in date).

For the first time in my life, I actually walked out of a play while it was going on (about 1/3 of the way through). I’ve seen bad shows before – plotless, meandering craptastic shows, but this really reached a new low of “is my time worth this?”

The show is basically a man and woman trading obscene fantastic hate-filled stories at each other, while trying to maintain affected (lower class) British accents. I knew it was going to be bad when the opening phrase was “I could put a bullet between your lips”, but when it descended into abject (unfunny) farce was when the man said he’s shove a grenade up the woman’s c***. Lovely. And old news.

Seriously, go to 1:02 in Da Ali G show here. Yes, Sascha Baron Cohen wrote about “the terrorist who stuck a grenade up the queen’s poo***, and he’s got 48 hours to get it out.” Now, THAT was funny, and original, back when he did it. Now? Not funny, not original, not shocking.

Worse, the whole sex-as-violence metaphor is sooooooo tired. Haven’t we seen enough of this from actually good writers, say, JG Ballard, or James Tiptree Jr? This was old hat in the 90s. Heck, even Jane’s Addiction, in “Ted Just Admit It”, said

Camera got them images
Camera got them all
Nothing’s shocking
Showed me everybody
Naked and disfigured
Nothing’s shocking
And then he came
Now sister’s
Not a virgin anymore
Her sex is violent

That was 1988, for the record.

So I have no idea why other reviewers seem to think this play has actual emotional depth, but honestly, I’ve seen more depth in puddles.

All this play has is shock value, and even that has worn out – it’s more a testament to boredom and ennui than it is to love stories.

not recommended.

Sound and Fury, Signifying Nothing

Sarah and I saw the new musical Crossing at the Signature Theater tonight as part of our season package.

In this musical, nothing happens. Eight caricatures of various time periods interact by having conversations which are occasionally interesting but mostly superficial and vapid, while being prodded along by one narrator/angel. The frame of the musical is that these are people from different time periods who are interacting, but nothing special actually makes that particularly interesting, other than perhaps to say that people have in fact been people throughout the decades. Good insight, Einstein.

The music is effectively songs strung together, but they aren’t memorable. I saw it literally half an hour ago, and as a professional musician and someone who has seen oodles of musical theatre, I find next to none of it comes to mind, other than that the penultimate bit included a series where all of the characters are asking “will it end” and “how much longer” and the like, which is a terrible, terrible idea when the play is eighty-three minutes of nothing happening.. And then there is this dance-lit crescendo where the “angel” (in quotes due to lack of explanation) sings a forgettable number and holds a big note. All righty then.

Oh, if you ever wondered whether eighty-three minutes could feel like forever, the answer is yes.

This is worse than just being a show I didn’t like. I didn’t like Arena’s “Red”, but that show was competently done (I just found Rothko so unpleasant that I wished I hadn’t spent two hours in his company, and I have never cared for Rothko’s artwork anyway), and there have been other things that I didn’t like, but I understood why other people did. No, this is different. This is a bad, bad musical. This musical is Spın̈al Tap two-word-review bad. I can’t think of the last thing I’ve seen which is this bad.

I’ve been more moved by high school productions of Chess than this. Someone in Signature Theatre really, really should have watched this in development, and should have realized that it stunk. According to the playbill, it’s been in development for more than five years. Seriously? And in that time, they couldn’t have added a plot? Come on, there are nine characters in an eighty-three minute play. If you can’t have something happen, get rid of most of them, and have them interact in depth (à la Waiting for Godot).

They say that given infinite time, an infinite number of monkeys will eventually type all of the works of Shakespeare. Apparently this is what happens if you don’t have that.

A Pool for Reflecting

A lot of people have written about privacy, security, trust, and the modern world.

Steven Iveson writes convincingly that we’re doing it wrong.

I think that to an extent what he is describing is a classic tragedy of the commons applied to the value chain, and saying that this is having a corrosive effect on trust as well. Certainly the behaviors of the players involved are not ones which lend themselves toward feelings of goodwill. The interesting thing is that we all seem inclined to sell our privacy birthright for a mess o’pottage in the form of a frequent shopper card at the supermarket – to say nothing of the tracking devices that we all wear 24×7 (or 24×6 for the other sabbath-observant folks out there).

So now where does society go from here? Perhaps countermeasures à la XKCD? Civil disobedience, Little Brother style? or do we just say “I, for one, welcome our new data-gathering overlords”?

I have no idea what the next stage is: it’s both concerning and fascinating to me that we’ve walked here with effectively no discussion and no reflection. Perhaps we should spend a few minutes on this.

I Would if I Could, ICANN, so I Won’t.

There are two different problems inherent in this story about the new top-level-domain “.kosher”.

Problem one: the o-k is a major, reliable, and reputable supervisor, but they are neither the only nor the largest of supervisions. “Which supervision agencies are acceptable” is an excellent question – one which is really (theoretically) best directed at one’s LOR (local orthodox rabbi), although KosherQuest is a great place to start. A glance over at KosherQuest shows a gazillion supervisions which are widely considered reliable, and then there are another gazillion which aren’t on that list. So it’s a bit concerning that a single agency would establish a worldwide monopoly from an Internet perspective.

Problem two: the new TLDs are stupid from the get-go, and this is a great example of why. In the way that .museum is not really used by anyone (hint: what domain do you think the Smithsonian or the Louvre, or the Getty use?), this too is redundant.

(Oh, and don’t give me any static about all of the names listed in the full second-level search of .museum – those are largely redirects to the actual, real domains used by the museums, which are held in other TLDs. Why, precisely, is “search” such a problem? I know that I would have an easier time going to a preferred search engine looking for “Louvre”, and that search engine will even correct my spelling and send me to the page appropriate for my browser language preference, while the .museum redirect is top-level only.) Another fight that’s going on is over the .amazon between the purveyor of pretty much everything and the countries which have a similarly named jungle.

Would we end up with ok.kosher, ou.kosher, stark.kosher etc? Personally, I’d want to buy the second-level domain “porkisnot”, or perhaps “ikeep”. But please, ICANN, reconsider this foolishness.

Sharing isn’t always Caring – updated

There is a lot of ink being spilled about the reports of the surveillance conducted by the Obama administration of US citizens.

Andrew McCarthy at NRO thinks it’s not that big a deal. The WSJ is unperturbed, and wonders what the fuss is about. I’ve seen some discussion on NANOG suggesting that encryption would be the solution.

I’d like to add a differing perspective. The articles are referring to “metadata”, but the industry term for the type of data being collected is “Customer Proprietary Network Information” (CPNI). Specifically, CPNI includes the call records for a customer. CPNI is regulated by the FCC, and unauthorized use or disclosure of CPNI is a big deal from the point of view from a telco – large fines are involved, and generally there are compliance infrastructures in place to prevent mistakes.

Now, why would this be a big deal? I mean, it’s just a phone bill, right?

Duh: once you know who someone calls, how much, and how often, this can reveal a lot about them. As an example, think of the various affairs which get caught via phone bills. As another example, a person’s call to a suicide prevention or domestic abuse hotline is revealing by its existence without needing to know the content.

The request, from what I’ve read in the papers, appears to have been for all of Verizon’s billing record data correlated with the tower data. Geez. That is a LOT of data.

I’ve heard some of the more anarcho-libertarian folks say that the telcos should have refused to comply with such a request, but honestly, it appears that the request is currently legal. I disagree with Yoo’s analysis of reasonableness for the following reason:

Let me supply an 18th century analogy: in the way that the addressing of an envelope is not private information (because the USPS needs to read it). By Yoo’s logic, it would be okay for the USPS to maintain (and more to the point, require the USPS, along with FedEx, UPS, etc, to collect), and
the government to subpoena all of the senders’ names & addresses, along with the receivers’ names & addresses, along with the mailbox addresses, and the weight (letter or parcel? How heavy?) of all mail & parcels delivered between people in the US.
UPDATE: Apparently real life is surpassing my examples, and the USPS is doing exactly this. Yikes.

That sure would make it easy to root out any left over Tories, now, wouldn’t it? Communists too! Along with them, we could ferret out the abolitionists, suffragettes, gay rights activists, Mormons, or maybe anyone else who happened to be on the bad list today?

So clearly I think this is a problem: we’ve given the government the power of total surveillance, à la Cory Doctorow’s Little Brother. The law needs to be changed, and in a hurry.

My views on this topic are my own, and do not reflect my employer or anyone else.

I Wish I Could Quit You (an Open Letter to the Va’ad of Greater Washington) – UPDATED

UPDATE 3/29: I received a response from the head of the va’ad today, indicating that they support the current approach, although they hope that the signage will be better next year. That’s a tad pareve for my taste, and while it would improve the situation, it does not address the larger issue of what makes this market different than all other markets?.

>>I sent this letter to Va’ad of Greater Washington yesterday (3/21) in the early afternoon, indicating that I would make it open unless their response was such that I should not. I did not receive a response from them. While everyone is busy with the run-up to Pesah, they are still certifying the kashrut of the establishments and I would argue therefore are still obligated to hear and address issues brought to them by members of the public in a timely manner.

Dear esteemed members of the Va’ad,

In prior years, during the run-up to Passover, the kosher markets (Kosher Mart, Shalom’s, and Shaul’s) would all close off and label their non-kosher-for-passover aisles, leaving only their kosher for passover items easily available. This had the effect of making it possible, although difficult, to purchase non-passover items during the time before passover. Anything which was visible but not kosher for passover was segregated and labeled in a highly visible manner “items in this section are not kosher for passover” and the like.

This behavior was cited as a benefit, and was contrasted with other cities when the question “why can’t we have a kosher deli counter in a Safeway, etc” is brought up – one knew, that regardless of the labeling of an individual product, if it was on the shelf, the va’ad stood behind the passover kashrut of that product, and the individual shopper had a position on which he or she could rely. Personally, I liked this a great deal, and have been a great defender of this status quo – I am known as one of the small number of people who will routinely defend the va’ad’s behavior and policies when it comes to promoting kashrut of restaurants, upholding standards, and doing the right thing. The benefit of the policy is extremely high for people who are beginning to observe the mitzvah of kashrut, notably my students – I teach kashrut at Kesher Israel to many people, including conversion students for the regional conversion court, and have been a va’ad mashgiah (supervisor).

However, this year, there has been a change, and I am deeply troubled.

I went to Shalom’s today, the Thursday which is four shopping (non-shabbat) days before Passover, fully expecting to see something similar, that I would have the benefit of being able to know what items were determined to be kosher for passover even though their labeling did not reflect that fact (and there are of course oodles of such items). Imagine my surprise when I began walking down the aisle, and I noticed canned beans and corn! My first thought was “oh – that’s right – there’s a big Sefardic community here, this must be okay for the people who eat kitniyot (legumes, corn and the like).” As I continued down the next aisle, my realization that something was greatly amiss came to fruition when I saw the boxes of whole wheat and white flour pasta. Hm. Well, I’m not aware of any communities which matir (permit) that, so there must be something funny going on.

Then I went over to buy some sodas, and I saw the sign “some items in this aisle are not kosher for passover” – I have seen less helpful signs in my life, but not often. I could have figured that out without a sign at all!

It was only when I asked another shopper that she pointed out that up above the aisles were markers indicating that some aisles were marked “passover” in much the same way that Giant would mark an aisle “Kosher” or “Latino.”

I saw signs all over the store indicating that shoppers needed to check passover labeling because other shoppers would have put non-kosher-for-passover merchandise in with the passover stuff.

I wonder now, whether the meat that I bought without a second thought actually *was* kosher for passover – after all, there’s apparently plenty of stuff in the store which isn’t! Note: I have since called Shalom’s, and their meat line has been kosher for Passover since March 1st: I don’t want to convey a false impression, but my complaint stands.

I am appalled by this change, and I want to know precisely why this would be okay from a “kosher” market (which I would contend is now placing a stumbling block before the blind in behaving more like a Giant than like a real kosher grocery), but the va’ad’s hashgaha would not be allowed to be placed on a deli counter in a Safeway, Giant, Wegman’s, or the like. I’ve been a va’ad mashgiah, and a big va’ad defender (ask all of the people at Shabbat meals), and this is a bridge too far.

I intend to publish this letter on the Internet within the next 24 hours, unless your response conveys a reason to me why that would not be in the best interest of the Washington Jewish community.

OU812 (or Oh, You are at it Again!) — UPDATED

The Orthodox Union has decided to let the let the nuts (that is, the so-called authorities who provide what they claim is rabbinic guidance, not to malign the delightful fruit of many trees) out of the cage once more. They published their annual list of insane additions to the prohibited foods category called kitniyot, and it has something particularly egregious:

The following may be Kitniyot and are therefore not used:
Quinoaupdate, see below

Now, peanuts are a long debate, and most folks I know have the custom of not eating them (note the phrasing!). Amaranth is a specialty product, and I don’t have a dog in that fight. Quinoa, on the other hand, has become a flash point for the battle for the soul of Orthodox Judaism between those who think that the answer to modern questions lies in the reasoning of those came before us, and those who want to make it up as they go along. Yes, that is a harsh way of putting it, but I believe the harshness is justified and even required: “You shall not hate your brother in your heart;… You shall surely rebuke him” (Leviticus 19:17).

One of the decisors of the OU was concerned that quinoa would be prepared on machines which also prepare wheat, raising a concern of hametz (leaven). Another (R. Belsky) took an uncommon position that the category of kitniyot could be expanded, and characterized the position that held that quinoa would not be kitniyot as “lenient”.

In all of this, it should be noted that the Star-K, not known as a bunch of liberals, certifies quinoa for Passover.

The actual statement by the OU is to put quinoa in the category of “you can own it, feed it to a sick person, an infant, a pet, etc” – But leavened products aren’t allowed to be owned or eaten by pretty much anyone (except the grievously ill) and no benefit is allowed from them! So what to make of this?

My contention is that the OU is all over the place here, and does not have a good halakhic (or scientific) basis for what they are saying. Let’s do this in order:

1. If the OU are concerned that quinoa may be produced in a way that it could be mixed in with hametz, but it is not in fact hametz itself (no one says it is), then the answer is that you could say that it would require supervision. The OU did not say that.

2. If the OU are concerned about hametz, why in the world would they include this on a list of *kitniyot* products? I’m not allowed to feed *my dog* hametz, while I do feed my dog kitniyot. If there is a real concern of hametz, that is a Biblical prohibition, and allowing people to come close to that is untenable and is precisely the sin of “leading the community astray.”

3. Saying that the list of kitniyot is fixed isn’t the *lenient* opinion, it’s the *normative* opinion, per the Chayei Adam. That’s why we can have potatoes. The Chayei Adam said that thetakahna (decree) only affected the species that the rabbis who issued it knew about, so no new world plants could have been included. Denigrating the normal and calling it lenient is a violation of lo titgodedu (don’t cause schism), which is de-oraita (Biblical) (ie I eat quinoa, and will do so this year again, as poskened (ruled) by my rabbi [there is a valid opinion that it’s fine] – the OU position will lead to people not eating at each other’s houses).

4. “May be kitniyot”? Seriously? This is a takana (decree) not even a derabbanan (rabbinic commandment), and we have the principle “safek derabbanan l’kulah” (a doubt about a rabbinic issue is ruled leniently). So, nu, how precisely is saying “the following may be Kitniyot and are therefore not used” following that principle?

5. The biggest market for quinoa is the gluten free people *who have nothing to do with wheat or any of the five grains*, so, no, it’s extremely unlikely to have any wheat or other hametz in it, and if they left their ivory tower and got out a bit, they might have figured this out.

The OU is leading people astray with this, and they have much to answer for.

UPDATE: Victory! The OU has removed quinoa from the kitniyot list for the year! They left the weasel-category of “may be kitniyot” in place for peanuts and amaranth (which is not reasonable), but we can be heartened by the triumph of sanity. Yay!