An unusual petition to the High Court of Justice, filed yesterday by the Israel Defense Forces, which sought to have cancelled a planned discussion in the Knesset State Control Committee today, seemed likely to be withdrawn as of press time last night, following late-night negotiations between IDF attorneys and the State Comptroller's Office, legal officials said.
The committee is slated to hear an overview of State Comptroller Micha Lindenstrauss's findings from his investigation into the conduct of the home front during last summer's war in Lebanon. The petition, filed by the IDF Home Front Command and the army's legal defense unit, argued that Lindenstrauss had no right to present his findings until the army and individual officers have been given a chance to respond to them, as this would undermine their fundamental right to a fair hearing. "Credible, professional, thorough, fair and constructive criticism cannot be leveled without receiving the response of the bodies criticized," the petition said.
The IDF's decision to consider withdrawing the petition stemmed from a compromise reached yesterday at a meeting between Lindenstrauss and State Control Committee Chairman Zevulun Orlev (National Union-National Religious Party). Following this meeting, Lindenstrauss pledged to give "a general and limited overview, which will not include personal conclusions against anyone."
Sources familiar with Lindenstrauss's investigation explained that the document he originally prepared for today's committee session included harsh comments about a long list of senior government and military officials. However, army sources said, the Orlev-Lindenstrauss compromise largely obviated this concern.
The petition, signed by head of the Home Front Command Yitzhak Gershon and the IDF's chief defense attorney, Orna David, deviated sharply from the manner in which the IDF normally conducts its relationships with other government agencies. However, the sources charged, it was Lindenstrauss who violated these unwritten rules by deciding to give the State Control Committee an advance summary of his findings.
If the petition is not withdrawn, the court will hear it this morning, two hours before the scheduled committee meeting.
Under the agreement reached yesterday with Orlev, Lindenstrauss will present the committee - assuming the court does not order the meeting canceled - with a six- or seven-page letter that harshly criticizes the way the army, government ministries, local authorities and other government agencies handled the home front during the war. Orlev, who received a copy of this letter last night, stressed that the comptroller "will not deliver a report that includes personal conclusions at this morning's committee session. Prime Minister Ehud Olmert won't be mentioned at this meeting. No specific government ministry or government will be mentioned [Lindenstrauss also examined preparation of the home front by the Ehud Barak and Ariel Sharon governments], only successive governments' overall responsibility. No specific local authority will be mention ed, only Northern localities [in general]. The Home Front Command will also not be mentioned, though the IDF will be criticized [in general]."
Orlev, who wrote to Lindenstrauss last week to request the briefing, argued that it was essential to obtain this general survey of home front preparedness now, "including general recommendations for fixing the situation, so that it will be possible to start implementing them" and "correcting the problems immediately."
The committee's feeling, he added, is that government agencies have been dragging their feet on giving Lindenstrauss their responses to the findings - though Lindenstrauss forwarded his full, 600-page draft report to these agencies only yesterday.
Most Knesset members said yesterday that the agreement reached by Orlev and Lindenstrauss solved the problem raised by critics of the meeting, and there was now no reason why it should not take place. But one committee member from Olmert's Kadima party, Amira Dotan, urged Orlev yesterday to adopt Knesset legal adviser Nurit Elstein's opinion and restrict the session to a report on the progress of the comptroller's investigation rather than a report on his findings.
According to IDF sources, the army received only a single copy of the comptroller's full report yesterday and is currently busy photocopying and distributing it to the relevant officers. As a result, the Home Front Comand has not yet formulated its response to the report, but it is expected to argue that the document contains numerous errors and inaccuracies. It also intends to argue that all of Gershon's decisions regarding home front defense during the war were approved by his superiors in the army and the Defense Ministry.
Attorney Yossi Bankel, who does his reserve duty in the army's legal defense unit, noted that Lindenstrauss has requested the army's response to this report by April 26. Given this, he said, he does not understand why the comptroller insists on publishing the main points of the report now instead of waiting until then - especially in light of the fact that Lindenstrauss himself failed to meet his earlier promise of giving the army the draft report by February 15.
Olmert's office, meanwhile, reiterated that Olmert will submit his response to the report by the end of March. It also charged that the draft report had been leaked to journalists even before it was given to the prime minister. Knesset Constitution Committee Chair Menahem Ben-Sasson (Kadima) asked Attorney General Menachem Mazuz yesterday to investigate these alleged leaks, and Olmert's staff said that Ben-Sasson's request had been coordinated with them.
"Publicizing the report, or part of the report, without those criticized having been given a chance to respond to its contents is, in my view, a grave act, which does severe harm to those criticized, as well as to the credibility and trustworthiness of the State Comptroller's Office," wrote Ben-Sasson.
Should the IDF not withdraw its petition, Elstein's opinion has set the stage for an unusual legal confrontation: As of last night, she and Mazuz were planning to present opposing views to the High Court this morning, with Elstein, who is supposed to defend the Knesset's interests, challenging the State Control Committee's planned meeting and Mazuz defending it.
Elstein, who would technically represent the committee at any court hearing, planned to argue that Lindenstrauss has no authority to report his findings to the committee, and the committee has no right to hear them, as long as the people and agencies criticized in the report have not yet had a chance to respond. All the comptroller can do, she intended to argue, is explain what he has been doing to further the investigation.
Mazuz, in contrast, planned to defend Lindenstrauss, in light of the comptroller's agreement with Orlev. Before this agreement was reached, Mazuz had considered refusing to defend him.
Elstein, however, considers this agreement insufficient: She believes that Lindenstrauss is forbidden to explain any of his findings to the committee, even general findings that do not specifically criticize any individual.
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