Legal Analysis / Unusual intervention
Supreme Court Justice Ayala Procaccia's decision to issue a show-cause order and an interim injunction over the shooting in Na'alin is highly unusual. First, it is rare for a justice to issue a show-cause order, which requires the state to offer a detailed justification of its conduct, without first hearing the state's arguments. Moreover, the time she allotted for the state to submit its justification - 21 days - is less than half the standard 45.
Third, it is very rare for the court to issue an interim injunction that postpones a criminal trial. But in this case, such a step was necessary: The petitioners wanted the defendant tried on far more serious charges than "conduct unbecoming an officer," and had the trial been allowed to proceed, it would almost certainly have been impossible to try the officer again for the same incident, even had three or more justices ultimately ruled that the petitioners were right.
Finally, it is unusual for the court to demonstrate willingness to intervene in a military advocate general's decision as to what charges to file against a suspect. Thus altogether, Procaccia's twin decisions show that she takes the petition very seriously indeed.
Nevertheless, the military advocate general's role is similar to that of the attorney general, and the court has never yet intervened in an attorney general's decision to refrain from filing charges due to lack of evidence. Thus should the advocate general argue that he omitted more serious charges due to lack of evidence, it is hard to see the court overturning this decision.
In one 1989 case, the court did overturn a military advocate general's decision to file disciplinary rather than criminal charges against an officer. But this case is more problematic, because criminal charges have been filed: The argument is merely over which charges they should be.