Welcome Meni Mazuz

Israeli Attorney-General Meni Mazuz set off an earthquake in the Israeli law enforcement system last week, and the aftershocks will continue to be felt for a long time to come. As expected, Mazuz announced that he was closing the file on allegations that real estate developer David Appel had bribed Prime Minister Ariel Sharon by employing the latter’s son Gilad at exorbitant fees.

But Mazuz did not content himself with a brief statement that the evidence was not sufficient to guarantee a conviction. He refuted point-by-point many of the charges in the indictment drafted against the Sharons, father and son, which he characterized as nothing more than "a web of generalizations and indirect and circumstantial evidence." He presented evidence from the police’s own wiretaps of Appel’s phone that Appel highly valued Gilad’s services, and showed that the fees paid Gilad were commensurate with fees Appel paid to others employed on the project.

In addition, he demonstrated that some of the services allegedly rendered on Appel’s behalf by the prime minister took place prior to the alleged bribe – i.e., the employment of Gilad, and that a large percentage of the fees to Gilad were paid when his father was in the opposition and unable to render any benefits to Appel.

Nor did Mazuz stop there. He pointed out that three teams of police investigators had recommended closing the file for lack of evidence, and a prosecutorial team, in which then States Attorney Edna Arbel had fully participated, had reached the same conclusion as late as last December. Though no new evidence surfaced subsequently, Arbel convened yet another proseucutorial to reconsider the previous four recommendations and then drafted an indictment against the prime minister.

A calm, but plainly furious, Mazuz, related how he had first learned that Arbel had changed her mind and drafted an indictment from TV reports, and only the next day did the indictment land on his desk. Mazuz sharply criticized the decision-making process leading to the indictment. After four teams had reached an "unequivocal stance that there was no evidence," he said, Arbel had "targeted" Sharon, and her attitude had "naturally radiated to the rest of the team" chosen by her.

Mazuz rejected the approach of the States Attorney’s office not only in the Sharon cause, but by implication in a long series of prosecutions of public figures that have ended in acquittal. "I do not accept the approach . . . that if the prosecutor has doubts about whether there is sufficient evidence to convict someone, he should submit an indictment and leave the work to the court," he told reporters.

IN HIS BRIEF PRESS CONFERENCE, Mazuz changed, perhaps forever, the terms of the debate about the Israeli legal system. As Ma’ariv editor Amnon Dankner pointed out: Never again will it be possible to accuse critics of the government legal system of "undermining the rule of law," for now the criticisms have come from the very person who sits at the top of that system.

Mazuz’s accusations were the most powerful blow yet to the branja – the unholy alliance of police criminal investigators, prosecutors, leading investigative journalists, and Supreme Court justices – that has turned the use of the criminal prosecutions and petitions to the High Court into a form of politics by other means (to paraphrase von Clausewitz). The various members of the branja (or clique) protect one another and advance their own interests. Their means are leaks to the press, criminal prosecutions of leading politicians with no chance of success, and, in some cases, nothing more than the opening of a police file.

Perhaps the most egregious use of prosecutorial power was the bogus indictment concocted by then Attorney-General Michael ben-Yair and States Attorney Edna Arbel against Yaakov Neeman, in order to ensure that Neeman, a brilliant jurist from outside the system, and a kippah-wearer to boot, would have to resign as Justice Minister. Even though the trial court judge slammed the prosecution for bringing a groundless case, the consipirators achieved their purpose: Neeman never returned to his post as Justice Minister. (See my "Bad Faith and Shoddy Goods," HaModia, May 14 2004).

Sometimes just opening a criminal investigation is sufficient. When it became known that Knesset speaker Ruby Rivlin, a frequent critic of the judicial activism of the Supreme Court, was being considered for the post of Justice Minister, it was leaked to the press that there was an ongoing police investigation of Rivlin, and his name was removed from consideration. Rivlin’s file lay dormant for three years, along with a number of other stale files on leading politicians, but was only closed recently when Mazuz came into office.

The activities of chief of criminal investigations Commander Moshe Mizrachi are another example of the branja’s modus operandi. Then Attorney-General Elyakim Rubinstein revealed last winter that Mizrachi had conducted hundreds of illegal wiretaps of the most intimate conversations of leading politicians and their family members, and retained the information gathered in large dossiers marked "Political." Rubinstein recommended Mizrachi’s dismissal. Mordechai Gilat of Yediot Aharonot and investigative reporters at Ha’aretz, for whom leaks from Mizrachi are their very lifeblood, predictably attacked Rubinstein for undermining Mizrachi, whom they described as the last bulwark against corrupt politicians.

Ha’aretz devoted far more coverage to the 14-page defense of Mizrachi written by States Attorney Edna Arbel (a close colleague of Mizrachi) and leaked to the press than it did to Rubinstein’s 68-page report. In response, Rubinstein lambasted the symbiotic relationship between police investigators, state prosecutors, and investigative reporters based on the principle, "give me [information] and I’ll write favorably about you." (Rubinstein’s J’Accuse, HaModia, December 5, 2003).

Last week, the branja directed even more fierce fire at Mazuz. Hebrew University law professor Mordechai Kreminitzer, whose name is frequently mentioned for the Supreme Court, demanded that Mazuz either apologize to Arbel or resign.

SO CONVINCED ARE MEMBERS OF THE BRANJA of their own righteousness and the necessity that their values prevail that they permit themselves any means to advance the own interests. The way in which Arbel’s appointment to the Supreme Court was rammed through is a case in point. Justice Dorit Beinisch, Arbel’s good friend and predecessor as States Attorney, used the veto power granted her by Israel’s perverse system of judicial selection to nix the earlier appointment of Professor Nili Cohen, which she felt might adversely affect Arbel’s chances. Court President Aharon Barak and Justice Minister Tommy Lapid then pushed the nomination through the judicial selection despite a laundry list of well-documented charges, both personal and professional, against Arbel.

In the personal realm, a state commission found that Arbel had improperly received a pension of 200,000 shekels, which sum she never returned. Even more serious, she was accused of having solicited lucrative appointments to government boards for her husband from former Prime Minister Ehud Barak and Education Minister Limor Livnat, at a time when both were under investigation or threat of investigation by her office. First she denied Livnat’s accusation, and only later admitted that Livnat had been approached on her husband’s behalf, but only by a third-party. In the professional realm, there was the bogus prosecution of Neeman, the handling of the Rivlin file, and a slew of failed prosecutions of public figures.

None of this mattered. Indeed the most plausible theory offered as to why Arbel changed her mind about indicting the Prime Minister is that she felt the indictments would strengthen her candidacy for the Court. She had heard rumors that her long mooted appointment was in danger, and decided that prosecuting Sharon would strengthen her candidacy and allow her supporters to portray all criticism as a response to her fearlessness in pursuing corruption even to the highest echelons.

Members of the branja permit themselves what they find so objectionable in everyone else. No doubt Dudi Appel would not have been so eager to hire Gilad Sharon if his name had been Buzagulo. But then again had Elisheva Barak not been married to Court President Aharon Barak, she would not have become the first appointment to the National Labor Court ever made over the objection of the President of the National Labor Court. (Her husband, normally so solicitous of the prerogatives of court presidents to veto new appointments, made an exception in her case.)

MENI MAZUZ, descended from a family of distinguished Tunisian rabbis and product of the development town of Netivot, brings to his new task a set of attitudes completely foreign to the elite members of the branja. He seeks neither to maximize his own power nor to become the arbiter of all social norms and values. Ever since Prime Minister Menachem Begin invited then Attorney-General Aharon Barak to sit in on every cabinet meeting that has become the accepted practice. The power of Attorney-General has grown exponentially: He dictates to the government what it can do, and his decisions are treated by the Supreme Court as binding on the government.
So it was shocking when Mazuz began his term in office by announcing that he would not attend every cabinet meeting.

Professor Amnon Rubinstein, a former Justice Minister, criticized Mazuz’s decision not to prosecute the Prime Minister on the grounds that the Attorney-General has to consider not only the likelihood of a successful prosecution, but the preservation of public norms. In other words, if something smells funny, prosecute. Or as Justice Minister described Arbel’s legal philosophy: If a large bundle of money switches hands, the burden is on the recipient to explain why. That too is apparently the attitude of the left-wing MKs who filed petitions against Mazuz’s decision to the Supreme Court without even bothering to read his analysis and knowing full well that even an indictment would force the Prime Minister to resign.

Mazuz is having none of this. In his view, public mores should be determined by the voting public, and they have atrophied in Israel because they have become solely matters for the courts. He began his tenure by announcing that he is not a Rav. His job is to enforce the law, not to preach morals. That definition of his task brings to mind Professor Ruth Gavison’s trenchant criticism of Justice Barak for having fashioned himself a moral authority -- "the Admor of secularism" -- on the same level that Rabbi Ovadia Yosef is a moral authority for his followers.

Supporters of Israeli democracy owe Meni Mazuz a large debt of gratitude on two counts. The first for having exposed the corruption at the heart of law enforcement system. And no less important, for reminding us that the legal system is supposed to enforce the legal norms enacted by the Knesset, not to itself become the source of all societal values.