How the Government’s Attorney Became Its General

By Evelyn Gordon

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

The case was rife with mishandling and questionable motives, starting from the fact that an allegation which had been ignored by the legal establishment for four years suddenly became a “must-investigate” when Ne’eman was appointed minister. More telling was Ben-Ya’ir’s decision to launch a criminal investigation into a charge he knew he did not have a prayer of making stick: Since both Ne’eman and the witness he allegedly suborned had been denying the truth of the police memorandum since the day after it was allegedly written, there were no witnesses to support the charge—and in fact, this is why Arbel ultimately decided not to prosecute. The fact that Arbel chose instead to file charges of perjury and obstruction of justice was equally telling, given the incredibly slim basis for them: They were based on errors in Ne’eman’s original affidavit to the High Court, such as the fact that he gave a certain date as July 22, 1992, rather than July 22, 1991,⁷⁷ and similar factual errors in his initial testimony to the police—errors which were discovered by Ne’eman himself, who informed the court and the police, and volunteered the corrections. As the trial court later wrote: “It would be wrong to set a judicial policy whereby a defendant who wants to fill in additional details risks being accused of [another] crime.”⁷⁸

Most shocking of all, however, were statements issued by Ben-Ya’ir’s and Arbel’s offices, warning that although there was “not enough evidence to indict” Ne’eman on witness-tampering charges, there were still “suspicions against [Ne’eman] that he did in fact suborn the witness Martin Brown.”⁷⁹ The mindboggling assertion that the role of the nation’s top law-enforcement officials includes besmirching public officials whom they fail to indict—an assumption that met with virtually no public opposition—speaks volumes not only about the tendentiousness of Ben-Ya’ir and Arbel, but also about a poisonous admixture of the legal and moral responsibilities that the public has come to expect in an attorney-general.

The moral-legal confusion significantly complicates the attorney-general’s functioning, because any legal vindication takes on the dimensions, in the public eye at least, of a moral acquittal. If an attorney-general wishes to clear the accused of only his legal charges, without rendering moral judgment, the only way he can do so is by going out of his way to reinforce the moral questions posed by the indictment, the way Ben-Ya’ir and Arbel did. But such statements necessarily undermine faith in the criminal justice system—for what greater declaration of its impotence is there than “we believe he did it, but we can’t indict”? Moreover, they offer a golden opportunity for an attorney-general seeking to hurt a political, professional or personal rival. Given the relationship between Ben-Ya’ir and Ne’eman, one can understand charges raised by Ne’eman’s supporters that Ben-Ya’ir and Arbel were simply out to get him.

This blurring of moral and legal lines resurfaced in the Bar-On affair. Attorney-General Elyakim Rubinstein, along with State Attorney Arbel, decided there was not enough evidence to prosecute either Prime Minister Netanyahu or Justice Minister Hanegbi.⁸⁰ At a press conference announcing the decision, Rubinstein declared that “this report deals with the criminal realm, not the public realm.”⁸¹ Yet the report itself totally belied his words. It contained statements such as “there exists a real suspicion that his [Netanyahu’s] motive was an illegal one” and “our conclusion is that there exists a real suspicion that the prime minister asked the cabinet to appoint attorney Bar-On as the attorney-general, either solely or among other reasons, in order to placate MK Der’i, while either aware of or deliberately closing his eyes to the possibility of an illegal conspiracy between Der’i and Bar-On”⁸²—despite the fact that there was not enough evidence of this to justify an indictment.

Indeed, the report devoted considerable space to expressing astonishment and suspicion at Netanyahu’s behavior, even in places where such astonishment seemed completely out of place: At one point, for instance, Arbel noted that Bar-On was not considered a first-rate lawyer by some of those Netanyahu consulted, and was therefore not a “natural candidate” for the job. The exception to this estimate of Bar-On’s abilities was Hanegbi, who had done his apprenticeship under Bar-On and recommended him highly. As justice minister, Hanegbi was responsible for nominating candidates for the attorney-generalship; add the fact that Hanegbi was one of Netanyahu’s most loyal supporters in the cabinet, and it is hardly surprising that Netanyahu would respect Hanegbi’s opinion enough to grant Bar-On an interview. Yet Arbel and Rubinstein wrote that “these circumstances arouse astonishment at the very fact that an interview was granted.”⁸³

The picture that emerges from the report is that Netanyahu was quite guilty, but Rubinstein and Arbel decided not to indict him anyway. Yet when their decision not to indict was later challenged in the High Court of Justice, a very different picture emerged: The State Attorney’s Office told the court that not only did Arbel and Rubinstein think Netanyahu stood a good chance of being acquitted if indicted; they thought the evidence was so slim that a trial court would throw the case out without even asking Netanyahu to present his defense.⁸⁴ In fact, government attorney Shai Nitzan told the court that even if the state could have proven that Netanyahu knew of Der’i’s reasons for wanting Bar-On appointed, the appointment would still not have constituted a criminal act on Netanyahu’s part unless it could also be proven that Netanyahu approved the appointment specifically to help Der’i arrange a plea bargain for himself.⁸⁵ If the legal case against Netanyahu was indeed so weak, how could Rubinstein and Arbel justify casting such heavy suspicions at Netanyahu throughout the report?

The answer, once again, is the attorney-general’s inability to restrict himself to legal judgments. Both Rubinstein and Arbel admitted freely that they were motivated by the extremely worrisome idea of a suspected criminal picking the country’s top law-enforcement official. As Rubinstein put it, the allegations aroused the suspicion that “there was a threat to the rule of law here.”⁸⁶ A simple declaration of insufficient evidence to indict would, they feared, send the message that Netanyahu—who was, after all, the man who pushed the Bar-On appointment through—was clean not only legally, but morally as well. The only way out was to make clear that the legal vindication was far from unambiguous. And thus their report was filled with insinuations of his legal guilt—insinuations which, given the lack of evidence, had absolutely no place in a strictly legal document.

The interweaving of the moral and the legal makes it extremely easy for particular subgroups in a society to impute bias to the legal system. Ne’eman, for instance, charged that the indictment against him was motivated primarily by a desire to rid the Justice Ministry of a religiously observant minister—a charge quickly taken up by all the religious parties. Whether or not this was in fact the motive, he clearly had grounds for suspecting that legal considerations were not the only ones at work. In such cases, the attorney-general inevitably leaves himself open to accusations of bias—religious in Ne’eman’s case, ethnic in Der’i’s case, political in Kach’s case. And once such suspicions are aroused, suspicions which can rarely be disproved, they undercut the public’s faith in the legal system—a faith without which a democratic society cannot long survive.

Thus the extraordinary power of the attorney-general, and his constant involvement in extralegal matters, is in the end self-defeating. The theory behind the “independent, apolitical” attorney-general was that he would increase the public’s faith in government by ensuring that the government act legally and morally. As Aharon Barak wrote in the Pinhasi verdict: “The government’s ability to govern is based on the public’s trust in it. Without public trust, the government cannot function.”⁸⁷ Yet the new attorney-generalship has accomplished the exact opposite: It has tainted the legal system itself with the appearance of politicization, undermining public trust in this central institution.

And the damage does not stop there. The attorney-general’s involvement in moral questions also seriously distorts the public moral debate: For if morality can be subjected to a legal test, is not any act which the judiciary or the attorney-general upholds also a moral one? The result is that if the moral concerns are somehow taken care of, the public will necessarily think it less vital to play itself the role of moral watchdog—and in the long run, the public grows numb to the moral stature of their elected officials.

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