Why not democracy?

Last week the Israeli Supreme Court rejected a petition to remove Deputy Chief of Staff Dan Halutz from his task on the grounds that he is morally unfit for the position. The petitioners were "31 leading writers and intellectuals, academic researchers of the first rank, former civil servants [including two former Supreme Court justices and a former Attorney-General], reserve pilots and members of non-governmental organizations [like Yesh Gvul, which assists soldiers who refuse to serve beyond the Green Line]."

Professor Zev Segal, writing in Ha'aretz, tried to pass off the Court's decision as an exercise in judicial restraint. That reading is untenable. Evelyn Gordon was closer to the mark when she wrote, "The High Court of Justice abolished freedom of speech for senior government officials and replaced it with an Orwellian Thought Police." One of the leading human rights lawyers of our time commented that there is not another high court in the world that would have entertained such a petition.

The Israeli Supreme Court questioned neither its right nor ability to evaluate Halutz's moral fitness. Nor did the public petitioners go away empty-handed. The members of the three-judge panel took turns expressing their contempt for remarks made by Halutz in an interview with Ha'aretz. And Halutz was required to undergo a series of public humiliation rituals, including filing an affidavit with the Court in which he affirmed that he is a "person of morals and values, upon whose very being the values of the Israeli Defense Forces have been stamped."

Justice Edmond Levy fairly boasted of the way in which the Supreme Court has over little more than a decade expanded its jurisdiction over every public appointment in Israel, on the basis of a single statute barring those convicted of crimes involving moral turpitude from holding certain specified positions. First, the Court enlarged the number of positions subject to the rule. Next it ruled that an indictment, even prior to conviction, could serve as a bar to public service. Subsequently the Court decided that even the opening of a criminal investigation might suffice to bar the individual under suspicion from serving.

The next step was to rule that even where a criminal investigation was closed without the filing of criminal charges the Court could bar a person from public office if it deems the behavior that gave rise to the investigation sufficiently opprobrious.

Finally, in Halutz's case, the Court claimed the power to review government appointments even in the absence of any suspicion of criminality sufficient to warrant the opening of an investigation. Even the statements in an interview, the Court determined, could be so grave as to render the interviewee unfit for public service in the Court's all-seeing eyes.

The gravamen of petitioner's complaint centered on the July 2002 targeted killing of Sadeh Shehadeh, Hamas' head of military operations in Gaza. Shehadeh's wife and daughter and 13 other Palestinians were killed when the one-ton bomb dropped on the apartment building in which Shehadeh was hiding caused severe damage to poorly constructed neighboring buildings. Dan Halutz was Air Force Chief of Staff at the time.

As a consequence of the large number of Palestinian civilian casualties, the Air Force came under severe public criticism from some sectors in Israel. In an interview with Ha'aretz, Halutz defended the Air Force and himself from criticism. He expressed more than once his "extreme sadness over the loss of lives of innocent children," but said that these had not arisen out of technical failures in the execution of orders. And he insisted that his moral standards and those of the IDF are far higher than those of would be critics.

Most offensive to his critics, Halutz admitted that "he sleeps well at night." Presumably it is still legal, albeit rare, to sleep well at night in Israel. Then why should it be immoral to say one does so?

Halutz also expressed the opinion that even in hindsight the bombing was legitimate in light of intelligence information that Shehadeh was involved in the preparation of a mega-attack, involving a ton of explosives. According to then Defense Minister Binyamim Ben-Eliezer, such an attack could have claimed hundreds of Israeli lives.

Justice Levy claimed for the Supreme Court the right to determine whether public officials reflect the fundamental values of Israeli society – "the collective ani ma'amin." But surely Halutz was far closer to the collective values of Israeli society than an elitist, self-selected judiciary. Had Shehadeh succeeded in carrying out his mega-attack because of IDF solicitude for Palestinian civilians a hue and a cry would have gone up. (The IDF had already postponed planned hits on Shehadeh eight times because of information on civilians in the vicinity.)

And the public outrage would have been fully justified. No country in the world would willfully endanger large numbers of its own citizens in order to spare an enemy combatant hiding, in violation of the Geneva Conventions, among civilians. The United States killed over a hundred thousand Japanese civilians at Hiroshima to avoid the massive American casualties an invasion of Japan would have entailed. And if American intelligence knew where Osama bin Laden was hiding today, it would not care a fig how many wives and kids he had with him, before bombing his cave.

It never occurred to the Supreme Court that in a healthy democracy it is the citizenry that is the ultimate judge of the behavior of public officials, and that when those officials violate general public standards, they pay the political price. No judicial intervention is needed.

Compare the case of Lt. General of James Mattis of the United States Marines to that of Commander Halutz. Just as Halutz told Ha'aretz that he feels nothing other than a "slight bump" when dropping a bomb, Mattis admitted that he takes satisfaction in killing Taliban fighters. For expressing enjoyment in performing the soldier's job of killing his nation's enemies, Mattis found himself in hot water, and was reprimanded for his forthrightness by the Marine Commandant General Michael Hagee. And there things ended. None of those offended by Mattis' remarks made a federal case of it, and the political fallout was not sufficient to force his resignation.

That's how it works in a democracy. Israel should try it.