How the Government’s Attorney Became Its General

By Evelyn Gordon

And now, for the Israeli judiciary's latest trick: Expropriating the attorney-general

Shamgar’s greatest departure from tradition in this respect, however, was his heavy involvement in diplomatic affairs—an area from which past attorney-generals had been strictly excluded. Shamgar was an integral part of the team which prepared the cease-fire agreement with Egypt after the Yom Kippur War—something the justice minister, ostensibly Shamgar’s superior, learned about only after the fact.²⁵ When Shapira resigned shortly thereafter, Shamgar ran the ministry for almost five months under the nominal supervision of Prime Minister Golda Meir, who had assumed the justice portfolio. During this time, he was closely involved in the cease-fire negotiations with Egypt and Syria and preparations for the Geneva Conference.²⁶

When Shamgar was appointed to the Supreme Court in 1975, he was succeeded by another powerful personality who shared his judicial view of the institution, and Aharon Barak (1975-1978) continued the expansion of the position where Shamgar had left off. Barak’s prosecution of numerous powerful personalities in the Labor party—culminating with the wife of Prime Minister Yitzhak Rabin—raised the prestige of his office to new heights. He did much to cultivate the idea that only a truly independent attorney-general, free of any political concerns, could effectively combat corruption in high office.

Along with building the institution’s prestige, however, Barak did much to continue building its power. Shortly after taking office, he was asked by Defense Minister Shimon Peres to rule on the legality of Ariel Sharon’s job as a general advisor to Rabin, which included a seat on the Interministerial Security Committee. Barak decided it “was not in accordance with the rules of good government for an advisor to be the chairman or a member of an interministerial committee on security of which the Chief of General Staff is a member with equal rights.” It was also “not in accordance with the rules of good government,” he said, for an advisor to act as liaison between the Prime Minister and the Chief of General Staff.²⁷ Thus, from the outset, Barak had established an important principle: He was not merely the arbiter of what was legal, but also the enforcer of whatever he thought constituted “good government.”

Barak also trampled on the last vestiges of the 1962 Agranat Commission report: He did not even consult with the relevant ministers before issuing indictments with political implications. When he decided to indict the mayor of Bnei Brak—a member of one of the government’s coalition partners—the relevant ministers were informed only after the fact, despite the political tempest the decision triggered.²⁸ Indeed, this followed naturally from his presumably judicial role: Judges, after all, do not consult with politicians on the decisions they make.

The greatest boost to Barak’s power, however, was the electoral upset of 1977, in which the Likud party took power for the first time since the founding of the state. Barak had actually intended to quit immediately after the elections, but changed his mind when the Likud won, feeling it was important to establish the principle that the attorney-general was not a political figure and did not change along with the ruling party.²⁹ Since incoming Prime Minister Menahem Begin was eager to have him stay due to his experience, this precedent was established without a fuss—a seemingly minor point with far-reaching implications. Once the attorney-general was established as a non-political figure rather than as a key political appointment, a new government would find it very difficult to replace a sitting attorney-general, no matter how much he obstructed its policy agenda.

The Likud victory proved a boon to Barak for other reasons as well. Because Begin wanted to leave the Justice Ministry vacant for a small party he was wooing as a coalition partner, he assumed this portfolio himself, leaving Barak as the de facto head of the ministry for the first four months of the new government.³⁰ And since Barak was so experienced in the workings of government, Begin and his cabinet quickly came to rely upon his judgment. During the first week in office, Begin announced that Barak would attend all cabinet meetings—something which even Shamgar had not been able to achieve.³¹

Barak quickly took advantage of the situation to pilot his office into uncharted waters: The realm of direct policymaking. When Finance Minister Simha Erlich proposed to raise millions in uncollected taxes by offering an amnesty for tax evaders who were willing to declare their undeclared capital and pay taxes on it, Barak voiced his objection—not because it was illegal, but because he thought it was bad policy. An amnesty, Barak argued, would have a deleterious effect on the law enforcement system, and would essentially reward the criminal for his crime. A bitter argument broke out in the cabinet, and Begin was finally called upon to decide—which he did in Barak’s favor.³² Thus while Barak continued to emphasize the judicial nature of the office, he had taken on many of the features of a government minister.

Barak also dramatically expanded Shamgar’s forays into foreign affairs. Even after a justice minister was appointed in October 1977, Begin continued to meet with Barak almost every day,³³ and when peace negotiations with Egypt began a month later, Begin asked Barak to play an active role. Barak held one-on-one meetings with U.S. Secretary of State Cyrus Vance, President Jimmy Carter and Egyptian Minister of War Mohammed Gamasy, serving as co-chair of the Israeli delegation during talks with the Egyptians in Jerusalem, and suggesting his own changes in Begin’s autonomy plan. Barak was so crucial a part of the talks that even after he was promoted to the Supreme Court in 1978, Begin insisted that he abandon the bench temporarily to participate in the final stages of the negotiations.³⁴

Barak’s involvement in political affairs did raise a few eyebrows. “When the prime minister orders the attorney-general to accompany the defense minister to Cairo not for the sake of giving legal advice ... but to make him a partner in the negotiations, one may ask whether a task of so political a nature would not be more appropriate for the justice minister,” wrote one journalist covering the affair.³⁵ Another editorialist commented that Begin had shown a “growing tendency to make of Mr. Barak state general advisor on just about everything under the sun.”³⁶ But approval was far more common. Ha’aretz, for instance, published an editorial entitled “Preserve the Independence of the Attorney-General,” which stated that Barak’s tenure “demonstrated to the public at large the importance of this office.”³⁷

Barak therefore left behind an office with enormous power, and his successor, Yitzhak Zamir (1978-1986), accepted the norms that Shamgar and Barak had set. As a policymaker, for example, Zamir was no less aggressive than Barak: When the government forwarded a bill to the Knesset to establish an independent telecommunications authority, Zamir attached a list of his objectionsׁnot on legal grounds, but on economic ones. He felt the bill granted the new authority such a broad monopoly that it would stifle the development of the communications industry in Israel.³⁸ Zamir also objected to the creation of an independent postal authority on economic grounds: There was no need for such an authority, he argued, and it would merely provide a pretext for higher wages on the part of the workers.³⁹ In addition, Zamir followed his predecessors’ policy of using his control of the government legal corps to browbeat the cabinet. In 1983, for instance, the government wanted to offer yeshiva students who did not serve in the army the same child allowances as veterans, but it backed down after the policy was challenged in the High Court of Justice and Zamir threatened not to defend it.⁴⁰

In one case, Zamir took the attorney-general’s political involvement to new heights. After the Kach party was elected to the Knesset in 1984, Zamir launched an intensive speaking and writing campaign against the new Knesset faction and its leader, MK Meir Kahane. “Kahanism, which has become a synonym for racism, is a shameful, loathsome and dangerous phenomenon, which is in sharp contradiction to the values we most cherish,” opened one lengthy article he wrote on the subject.⁴¹ It continued:

A member of the [Knesset] House Committee has compared Kahanism to Nazism, and we would do well to remain conscious of the similarity between these two movements.…The battle against Kahanism, and for humanism, must be waged by various means. We must not only act through legal channels, which seem relatively easy and tempting, since the law alone cannot solve the problem. Moreover, if we concentrate our efforts on one way, we are liable to neglect the others...⁴²

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