Who will guard the guardians?
by Jonathan Rosenblum
January 31, 2003
The endless rehashing of election results should not cause us to forget the major story of last week: the leaks from the State Attorney’s office in the Sharon loan affair. Editorial comment in the major papers tended to focus on Attorney-General Elyakim Rubinstein’s decision to question Ha’aretz journalist Baruch Kra under warning rather than on the seriousness of the leak by prosecutor Liora Glatt-Berkovich.
Rubinstein erred in summoning Kra, especially after the source of the leak was already known. Kra possessed no vital information of relevance to a criminal investigation, as in several cases in which American journalists were found jailed for contempt of court for refusing to reveal their sources of information. Moreover, the Israeli Supreme Court long ago established the rule that journalists should only be interrogated as a last resort when the information sought cannot be obtained in other ways.
So the indignation of the press, in general, and Ha’aretz, in particular, is well understood. That indignation, however, is tinged with a fair amount of hypocrisy, as are all such matters in this country. When journalist Yoav Yitzchak revealed the large gifts from businessman Edouard Saroussi to then President Ezer Weizman, Ha’aretz writer Amir Oren called for a police investigation into the source of the leaks.
On another occasion, Yitzchak revealed a government protocol of the discussions of Ronnie Bar-On’s appointment as Attorney-General, which gave support to then Prime Minister Binyamin Netanyahu’s claim that there had been a full cabinet discussion. Yediot Aharonot’s Shimom Schiffer demanded an investigation into the source of the protocol, and Yitzchak was subsequently the subject of lengthy questioning by the police.
If Rubinstein’s summons of Kra was a serious blunder, his decision to investigate a leak with such major political ramifications was not. The suspicion -- now confirmed -- of a politically motivated leak from the States Attorney’s office undermines public trust in the entire criminal justice system. Thus MK Michael Eitan, chairman of the Knesset Law Committee, was right to distinguish between "the person who leaked the document and the person who published it."
Not content to defend press freedom, however, Ha’aretz ridiculed Rubinstein’s decision to investigate the leak and minimized the seriousness of what that investigation revealed. Amir Oren suddenly lost interest in the subject of leaks and declared Rubinstein "an enemy of the media’s sources of information," as if the media was entitled to have prosecutors break the law.
Ha’aretz accused Rubinstein of seeking only to please the prime minister, and wondered why he was so busy investigating the leaks rather than the loan itself. The idea that State Attorneys office chose to investigate the leak at the expense of continuing the investigation into the Sharon loan is comical. On the same day that Ha’aretz railed against the slow pace of the Sharon investigation, it printed at least three stories of new findings from that investigation. If the paper was so concerned about the pace of the investigation, then it must have been positively frantic about how the investigation of the Barak campaign’s systematic use of a fictitious non-profit organization has dragged on and on. Yet I cannot recall the paper editorializing on that subject, and certainly not in the midst of the campaign.
Ha’aretz deemed the fact that the prosecutor with responsibility for the investigation of the South African loan had deliberately used her position to attempt to influence the pending elections a trivial matter. Indeed Glatt-Berkovich was transformed into a heroine, who acted as she did to speed the course of the investigation, which she viewed as lagging. Her motives were high ideological ones, not, G-d forbid, low political ones.
The distinction between ideological motivations and political ones exists only in Ha’aretz’s lexicon. Ideology – at least the right ideology – is praiseworthy; politics is foul. Supreme Court justices, for instance, are not political, though they may be ideological. But does terming Mordechai Vanunnu’s motivations for revealing Israel’s nuclear secrets ideological somehow justify them?
If Ha’aretz wanted a true ideological hero, it could have chosen Moshe Feiglin. Unlike Glatt-Berkovich, he committed his criminal acts openly and fully prepared to bear the consequences. Yet once again, I do not recall any Ha’aretz editorials urging the Supreme Court to remove the stain of "moral turpitude" from his crimes and allow him to run for office.
Uncovering Glatt-Berkovich’s leak provided further proof of an open secret: those charged with protecting the law are not above putting political/ideological considerations above the integrity of the legal system. The most damning example is former Attorney-General Michael Ben-Yair’s decision to prosecute Justice Minister Yaakov Ne’eman. As one of the country’s leading legal minds, Ne’eman represented an unprecedented threat to the ruling clique in the State Attorney’s office.
According to Uri Elitzur, writing in the November 12, 1999 Yediot Aharonot, shortly after Neeman’s appointment was announced, Ben-Yair called a meeting of top prosecutors and assured them that he would find a way to make sure the new "dog" did not leave deep scratches on the furniture. He made clear that the "dog" he had in mind was the religiously observant Ne’eman by reading a satiric article about the practices of religious Jews.
What is uncontested is that Ben Yair immediately reopened a file than had been dormant for four years alleging that Ne’eman had suborned perjury. He knew from the start that he had no chance of obtaining a conviction since the only two possible witnesses denied any such discussion. But his efforts were not in vain. Neeman resigned, even though no indictment was ever forthcoming.
In his place, Tzachi Hanegbi was installed as Justice Minister. Because Hanegbi was under ongoing criminal investigation, he was the perfect choice as far as the legal establishment was concerned. Hanegbi knew that criminal proceedings against him might one day reach the Supreme Court, and was careful throughout his tenure to do Court President Barak’s bidding on every issue. Not a whimper was raised on the Left about his appointment to the Committee on Judicial Appointments, even as a criminal indictment for bribery appeared likely to issue momentarily.
Professor Ruth Gavison shocked the country more than three years ago when she told Ha’aretz interviewer Ari Shavit that the pretense could no longer be maintained that purely professional considerations govern the State Attorneys office’s decisions as to whom to prosecute and what resources to commit to the prosecution. "What is bothersome is the feeling that an element of persecution is present in the system. The system denies this, but the denial is no longer convincing because the accumulation of cases has become too great. It arouses suspicion. . . .," she said.
The political bias of the political system, Professor Gavison charged, was mirrored by the other elite bastion, the media: "In some cases there is a superfluity of coverage at the very early stages [of the investigation] in a way that infringes on the privacy of those in question, while in other cases there is a repression and a ban on publication . . . . It creates the impression that there is a technique at work for giving prominence to certain issues and not others."
The widespread perception of bias in the criminal justice system undermines the basic trust in government upon which democracy depends. Neither the Israeli legal system nor the media seem capable of the necessary self-correctives. Fortunately, however, differential applications of the rules, depending on which side of the ideological spectrum is gored, have increasingly proven to be counterproductive.
The prosecution of Aryeh Deri resulted in 17 Knesset seats for Shas in the 1999 elections and the suspicions raised about Sharon backfired. Neither all those Shas voters nor those who voted for Likud on Tuesday were convinced that their man was lily white. But they were more eager to protest a "system" that they view as corrupt. That may turn out to be the best corrective of all.
Related Topics: Israeli Supreme Court
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