A few bones to pick
Menachem Mazuz is angry. Prior to him, no one raised a finger against former president Moshe Katsav, although the facts of his exploitative behavior were apparently known. Now that the High Court has agreed to the plea bargain, the attorney general is looking ahead to new judicial challenges - including Olmert's cases
Even after the High Court of Justice's approval of the controversial plea bargain with Moshe Katsav, Attorney General Menachem Mazuz believes that the former president is a serial sex offender. After 20 months during which he got to know Katsav inside and out, it is perfectly clear to Mazuz that during a 20-year period, the man who was head of state conducted a series of affairs involving exploitation of authority to forge intimate relationships with women who were his subordinates.
However, jurist Mazuz was unable to translate this factual truth, which infuriates him, into judicial truth. Indeed he, too, feels that in the Katsav affair the disparity between factual and judicial truths is untenable. However, being committed to upholding the law, with all its rules and minutiae, Mazuz understands that he could not have behaved in any other way. He views the affair that rocked Israel for nearly two years as a Greek tragedy. The role left to him in this tragedy was choosing between bad and very bad, and he chose what he perceives as the lesser of evils.
What were the attorney general's roughest moments as he rode out the storm? There was, of course, the weekend in June 2007, when he announced the plea bargain. The headlines in the tabloids ("Disgraceful," "Boos to Mazuz"). The inflammatory discourse of journalists and commentators, who completely rejected his judgment and demanded his head without knowing the facts or having access to the evidence. The feeling that public debate in this country today is shallow and violent. And deep concern over the lack of understanding that a judicial process cannot be resolved in the public square.
There was also that rough day in the Supreme Court in July 2007, when its president, Justice Dorit Beinisch, vented her opinion about the plea bargain to which Mazuz was a signatory. On that day, there were some members of the prosecution who felt that even the highest instance was not giving fair, balanced and judicious consideration to the evidentiary difficulties and judicial complexities of the case.
Nevertheless, Mazuz's roughest moment in the affair preceded the judicial review, the public criticism and the plea bargain: It was when the full evidentiary picture began to emerge following Katsav's hearings in April-May 2007. At that moment, when it became apparent that it was impossible to rely on A. from the President's Residence, and that there were also serious difficulties depending on A. from the Tourism Ministry, the prosecution suddenly became fully aware of the impossible dilemma it faced.
This was the most difficult professional decision of Mazuz's life. Even more difficult than the decision in the "Greek Island" case involving Ariel Sharon. For the first time he experienced in practice, and not just in a metaphoric way, what it means to wrestle with a decision that gives you sleepless nights. On the one hand was the untenable possibility that no indictment at all would be filed against a high-ranking personage whose behavior had been outrageous and improper for years; and on the other hand was the equally unacceptable possibility that if an indictment were filed against such a powerful figure, he would bring the prosecution and the victims to their knees and get off scot-free.
It was this trap that finally led Mazuz to seize on the insufficient and inelegant solution of a plea bargain. He did so because he believed that this was the only way to ensure that Katsav would be condemned, end his term as president in disgrace, be declared a sex offender and be sent into a form of exile.
In Mazuz's estimation, the problematic element of the Katsav affair was that it was uncovered very late in the game. Even though public figures and journalists knew the facts for a long time, they did not make them public. As a result, when the affair became public knowledge, a disparity was created between the story that was told in the media, which was accurate but outdated, and the story with which the state prosecution on Salah a-Din Street in Jerusalem had to grapple. Six of the 10 complaints were invalidated by the statute of limitations, two others were minor in nature, and the case of A. from the President's Residence collapsed. Of the whole saga reported in the media, which was for the most part true, only the story of A. from the Tourism Ministry remained and it, too, while humanly convincing, was judicially borderline.
What Mazuz feels most now is a sense of ingratitude. As he sees it, he is the one who uncovered the Katsav affair with his own hands. Before he took action, none of the women had filed complaints and no investigative report had appeared in the media. It was only his decision to turn a complaint filed by Katsav himself into an investigation against the president that opened the Pandora's box. If Mazuz had not made the decision he did, Katsav would have concluded his term of office and likely returned to politics at a senior level - and perhaps even run for prime minister.
When this is taken into account, together with the scope and speed of the investigation, along with Mazuz's decision to place cabinet minister Haim Ramon on trial because of a kiss, it is a bit strange to claim that Mazuz is insensitive to victims of sexual assault. So that in addition to the disparity between the factual truth and the judicial truth, Mazuz is also disturbed by the disparity between the image that women's organizations have attached to him and his self-image. He is convinced that he fought with all his might against the macho culture and protects its victims as best he can. In the circumstances that were created, he believes that the plea bargain does not adversely affect women who are victims of sexual harassment, but greatly reduces the damage their cause would have suffered had the indictment been thrown out or, alternately, had a full trial been held.
The attorney general is aware that he did not succeed in persuading the High Court of Justice or the public with regard to the disparity between the draft indictment against Katsav from January 2007, and the plea bargain of the following June. In the wake of that failure, he is undertaking to carry out a process of internal review from which lessons will be gleaned. Mazuz does not accept, but also does not reject, the allegation that more successful negotiations with Katsav defense attorneys Avigdor Feldman and Zion Amir could have achieved a better result. Nor does he rule out the possibility that from the outset the draft indictment should not have referred to A. from the President's Residence.
But if a mistake was made in this regard, it stemmed from the feeling that Katsav's actions were a terrible outrage and therefore must not be forgiven or diminished, but rather subjected to a strict approach. If this were not the president but a rank-and-file civil servant, Mazuz thinks, he would likely have closed the case regarding A. at an early stage. If he failed, it was not in the so-called "Buzaglo test" - a principle holding that the highest figures in the land should be judged by the same standards as any citizen - but in the opposite way.
It was with a sigh of relief that Mazuz heard the High Court decision this week. He thought the judgment was solid, substantive and in certain places even profound. He believes that it is correct for the court to intervene in prosecution decisions only in very extreme cases. Such intervention, he believes, is contrary to the principle of the separation of powers, and also to the necessity of adhering scrupulously to proper, fair procedure. In his estimation, the court's decision reflected the internalization of this understanding.
In addition, the majority decision backed the worldview that characterizes his term of office, which holds that the prosecution must take responsibility and make difficult decisions, rather than passing them over to the court. It pained Mazuz that the decision was handed down late and was preceded by damaging rhetoric. Ironically, the gap between the rhetoric and the outcome reached by the court resembled in no small measure the behavior of the prosecution, which the court assailed.
Mazuz is under no illusions. He knows that the Katsav affair damaged him, the prosecution and the court. However, in his view, the High Court decision restores matters to their proper proportion and context. After the unambiguous pronouncements by the Supreme Court justices this week, he believes that the prospects are very good that the Magistrate's Court will declare that Katsav's offenses involve moral turpitude. If so, the end of the Katsav affair will finally arrive in about two weeks. Not an ideal end, but definitely an acceptable one.
Mazuz takes great pride in the policy he has pursued in the past four years with regard to public figures. He has submitted more than 20 indictments, obtained more than 10 convictions and has not had any acquittals - in contrast to the dozen acquittals during the Beinisch-Edna Arbel era (in the cases of Olmert, Neeman, Eitan, Sheetrit, Dinitz, Gurel, Hochman and others). The multiplicity of acquittals was deleterious to the rule of law, and he is doing his best to prevent a repeat of that situation.
However, it is clear to Mazuz that serious challenges still await him in the Olmert cases and in others, too. Is he under pressure to avoid dealing with governmental corruption? The attorney general believes that in Israel there is no direct political pressure on the law enforcement system. Ministers do not make phone calls to block investigations. But he definitely sees indirect pressure: The public campaign in connection with the Ramon investigation, and against police wiretapping exerts that kind of pressure. It combines the private crusade of those who are not exactly Dreyfuses (Ramon was convicted in regular, legal instances and never appealed) with the exploitation of an opportunity by other public figures who have a vested interest in emasculating the police, the prosecution and maybe also the courts. Mazuz is certainly worried: The enforcement agencies are manned by human beings, and if they are intimidated, their motivation to act professionally and resolutely in a complex arena could be affected.
The struggle between Supreme Court President Beinisch and Justice Minister Daniel Friedmann is also not making life easier for law enforcers. In the past, the state prosecution enjoyed at least the backing of the justice minister, whereas now the minister himself has denounced the police, the prosecution and the attorney general, and he continues to come up with initiatives that reflect a lack of confidence in the system.
Mazuz, then, will not have even one day of respite between the storm that is about to abate and the storms that will follow. The reality that he confronts in his office in the fortified Justice Ministry building in East Jerusalem is the Israeli reality of the new millennium: intense, aggressive and merciless.