A victory for politicians - and criminals
Politicians may indeed have reason to complain about how investigations are conducted, but their whims are weakening the protection police can provide citizens at large.
In its battle against sophisticated crime, the law enforcement system has suffered an embarrassing downfall. Politicians' whims have helped weaken the protection police can afford all of Israel's citizens. For some reason, the assaults have come all too often from one party, Kadima. First it was Ariel Sharon, then Ehud Olmert, and then Haim Ramon. Now, the silence of Kadima leader Tzipi Livni, who last week failed to respond to Ramon's war on law enforcement, will yet cost her public support.
The police rely on two main information sources: human beings and technology. The latest twist in the Ramon affair, which will have another round in the Knesset committees, will weaken the police's ability to wiretap phones and fax machines, and to gather intelligence from computers. Despite the caution that suspects display with these devices, wiretapping often provides valuable clues. Even when the police have a witness, and even when that witness is someone from the criminal's closest circle, wiretapping is sometimes needed to conceal the source's identity.
The public has been given a negative impression of the police's behavior on this matter, even though that's far from the truth. Who is responsible for the fact that they eavesdropped on Ramon? The question is misleading, because there was no such eavesdropping - not when Ramon was a minister, and not at any other time. The "eavesdropping" in the Ramon case actually targeted an officer who complained about Ramon, her superior and the Prime Minister's Bureau chief at the time, Shula Zaken. Moreover, the wiretapping affair, which was criticized in the state comptroller's report, was actually a matter of whether the prosecution gave investigative material to the defense. The prosecution is supposed to receive this material from the police (this may not have happened, according to the State Comptroller's Report). The fact that the material at hand happened to be wiretapping transcripts, as opposed to the transcript of a witness's testimony or seized documents, is not central.
Why the furor? The police's explanation for the wiretapping was wrongly worded - it stated the reason was an investigation into suspicions of "impeding the investigation and indecent behavior." It should have said "impeding the investigation into indecent behavior"; "impeding" is always only an adjunct to the main offense.
State Comptroller Micha Lindenstrauss issued a report slamming the conduct of the police and the State Prosecutor's Office in the case two weeks ago. Lindenstrauss has a copyright on the expression "substantive negligence," which appeared three years ago in a report by retired judge Shalom Brenner on the very same issue. The police believe Lindenstrauss' report is less scathing than Brenner's.
The police's problem lies not in the comptroller's office or the State Prosecutor's Office, but in the Public Security Ministry, headed by Yitzhak Aharonovitch, who is Foreign Minister Avigdor Lieberman's associate. He is the one who will recommend a candidate for the next police commissioner to the cabinet, and may even delay the appointment of the next round of police major generals until then, in order to keep Police Commissioner David Cohen from helping determine who commands the police force.
He is the one likely to clash with Cohen even before then, when he receives the recommendation by Cohen and investigations and intelligence division head Maj. Gen. Yoav Segalovitz to promote investigating officer Eran Kamin to the rank of commander, as promised. Chief Superintendent Kamin, Ramon's investigator, is one of the four people who were criticized in the Lindenstrauss report. The State Prosecutor's Office and the police are refusing to sacrifice him to appease the politicians, and Lindenstrauss will not protest if the attorney general's representative approves the promotion. However, the minister's signature is also necessary.
Not that the police are denying their part in the downfall: There were unnecessary hitches, due to an excessive workload, which does not justify the neglect of even the smallest cogs in the machine. But the result is that one part of the government system, the political echelon, is greedily eating away at another part, the professional echelon, which is supposed to fight crime endangering all citizens. Crime, including public corruption, which does not anger the politicians.The human factor
In recent years the police have brought themselves up to the level of the Shin Bet security services, and have developed Shin Bet-quality secret information-gathering systems, which are almost entirely removed from policemen and investigators. The police are not required to make them public; sophisticated criminals made aware of these means might try to interfere with them.
As compared to sigint (signals intelligence ), the wiretapping intelligence service, humint, the human intelligence service, is on the decline. Police Commander Gadi Eshed, a former member of the Central Unit of the Tel Aviv Police District and currently the head of the investigations and intelligence division at national headquarters, recently decried the "crisis of human intelligence: The loss of trust, trends in judicial decisions and an improvement in the capabilities and accessibility of technological means of information-gathering are threatening the longstanding hegemony of the most basic intelligence-gathering tool."
The police, wrote Eshed in the annual investigations and intelligence division magazine, define a live source as "a person who is not a policeman who provides information necessary for intelligence. Handling a live source entails all the connections between the handler and the source for the purpose of gathering information."
The handling process is complex, sensitive, and requires professional skill and unique personal abilities: contact, a personal relationship, meetings in isolated places and secrecy. The activity itself is not technological, but the information is stored, used, analyzed and supervised by computer. Without computers, there is not much use for humans, but the relationship runs both ways, including in cases when a "gold mine" suddenly appears, such as papers forgotten by someone very close to Lieberman in a Knesset office.
Regarding the protection granted to a source, Eshed explains that it derives from the source's source: Is he only a witness to the crime, or is he a participant? Thus, his rights to immunity and protection are decided. A witness receives full protection, whereas a culprit receives only partial protection.
The source is not supposed to be exposed or to testify in court. In cases of serious crimes, the state will decide not to indict instead of exposing a source. Another problem is that intelligence material is becoming less confidential; judges are increasingly declaring it "investigative material," which means the defense (and the media ) have access.
Police regulations mandate that information received directly from a live human source cannot be used as evidence in court; instead, it's "laundered," so that its findings are confirmed by the intelligence-gathering systems. In order to have a live source testify, the source and his "intermediary" sit in two adjacent hotel rooms; the source gives the policeman his statement in writing, and the policeman reads the statement to the court in a video broadcast, so the source's voice cannot give away his identity.
The exposure of intelligence materials and human sources in courts, warns Eshed, has damaged the enforcement authorities' abilities, efficiency and deterrence, and endangered the safety of those who provide the intelligence information. The point of balance has moved toward the rights of the accused and against the public interest of being protected from criminals. The defense often demands to see the intelligence material, because in theory it might help the accused. However, that demand is actually intended to pressure the legal authorities to waive the indictment in order to preserve sources and methods.
Eshed says that the crisis in human intelligence has been caused by both the great improvement in sigint and the sophistication of criminals. The judicial system has lost its confidence in human sources, partially due to significant, criminal missteps by intelligence coordinators. Investigative committees involving commanders show sources that the commanders have trouble protecting themselves. If that is the case, how will they protect their sources?
In the wake of the widely publicized affairs involving how sources were handled, including the Parinyan affair, which led to Cohen's appointment as police commissioner after Moshe Karadi resigned, Eshed recommends changing the methods. The Americans and the Dutch use two handlers for each source.
"In Israel, on the other hand, the intelligence coordinator is on his own. He is the source's handler, his direct supervisor, the person who criticizes his behavior, his reliability, his motives and his output. He is the guardian and the developer of the source's professionalism, the person who identifies his motives, limits damage and danger and is also responsible for the rewards and benefits. The isolated coordinator is part of a system that is supposed to support and supervise, but the disadvantages are obvious." One example of this is the case of the Mossad agent handler Yehuda Gil, who invented reports by a "highly-placed source" in Syria.
Technology, including wiretapping, can make up for human intelligence problems, but damaging both spheres would be lethal. The war of brains between the police and the criminals is complicated even without being undermined by the politicians, who control legislation and top appointments. The price of Ramon's major - even if imaginary - victory in the Lindenstrauss report is liable to be paid by the victims of the next crime that will not be prevented because the police were asked to bring another form.