Menachem Mazuz began his term as attorney general by closing a case against one prime minister and ended it by indicting another. In an interview with Haaretz, he explains the reasoning behind his decisions, First of two parts.
"I was definitely an opposition figure to those who preceded me. I thought there were two aspects in which the system of criminal enforcement was not working properly. On the one hand, the work procedures were not sufficiently organized or methodical, with the result that the system was not effective. On the other hand, I thought that in certain cases, criminal law had been stretched beyond its rightful place."
"Raful. Raful [former chief of staff Rafael Eitan] was placed on trial for making use of information that infringed on the protection of privacy. I thought it was absolutely not germane to file an indictment in a case of that kind. I also thought it was wrong to file an indictment in the case of Yaakov Neeman [the present justice minister]. I believed that criminal law must not be stretched beyond its natural dimensions."
In other words, you took office determined that there would be no more Raful-like indictments - no indictments against public figures that the court would just dismiss.
"We are not convictions contractors. Acquittals are a possibility. For example, I think the indictment against [former Jewish Agency chairman] Simcha Dinitz was fully justified, and I think his acquittal was scandalous. The judgment handed down in the Dinitz case was puzzling. But I said in the past and I say again now, that in the past 20 years every acquittal caused far more damage than five convictions. Especially acquittals that resonated, in an early stage of the process and in a determined court atmosphere. I was critical of the approach that held that if there was any doubt, the court should be the one to decide. That is not why criminal law came into being. There is no justification for suddenly adopting stringent criteria just because the case involves a public figure.?"
There was opposition in another sense as well. You objected not only to the hyperactivity of the state prosecution, but also to the judicial activism of the Supreme Court.
"I thought that in certain areas the court was penetrating the sphere of other systems without justification and without usefulness. In a conversation I had with the justice minister, Tommy Lapid, ahead of my appointment, I spoke to him about Gibbon?s 'Decline and Fall of the Roman Empire.' I said that Gibbon's principal insight was that Rome fell when it overstretched its boundaries and penetrated places and spheres in which it lacked effective control. It's the same with the judicial system. Anyone who wants a strong judicial system has to focus on the spheres which are without doubt within its legitimate and recognized boundaries. As soon as the system invades other territories, it loses its legitimacy, is unable to impose its authority and begins to disintegrate."
Your fear is actually of judicial manipulation. Can you give some examples?
"In my opinion, it is definitely not the role of the judicial system to decide how the state should defend itself. In my view, the question of whether to invest half a billion shekels to protect homes in Sderot is not a judicial question and does not require a judicial decision. I also think that the court's tendency to deal with petitions concerning prosecution decisions is problematic. In the past, the court said it would not turn itself into a meta-legal adviser and would not decide in place of the attorney general or the state prosecutor or the district prosecutor. That is also the approach followed in most countries. The court's entry into those spheres creates a problematic and dangerous bias, because it encourages the prosecution to file indictments, even in cases where doubt exists. It also creates a conflict of interest in the court?s role, because what the Supreme Court says is liable to influence the Magistrate's Court or the District Court that will hear the case.
Accordingly, you enter the attorney general?s office as a reformer, almost a revolutionary. You are severely critical of the behavior of the state prosecution and of the mode of operation of the Supreme Court.
"And I am also critical of the excessive, almost symbiotic closeness between those two systems. I think it's necessary to rearrange the relations between them on the basis of a clear separation. I find it unacceptable for the court to intervene in the work we do. Our role is to present to the court our position and the court's role is to decide. Not to make comments to the state prosecution that will cause it to change its position in advance."
So with this worldview you come to the first issue of principle on which you have to decide: the Greek island case. Even though the state prosecutor, Edna Arbel, had already drafted an indictment against Prime Minister Ariel Sharon, you close the case. A public furor erupts. People say you are corrupt, or spineless.
"The affair of the Greek island is a dark episode: a series of cases built on the basis of very extensive wiretapping of [the businessman] David Appel from the end of 1998 until the beginning of 2001. The investigation against Sharon in this context occurs in three stages. One police investigation concludes in the middle of 2002 with a clear recommendation to close the case due to lack of evidence. Two additional investigations, which concluded toward the end of 2003, also did not produce evidence for an indictment. The police did not submit an orderly recommendation in writing, but their position was definite and unequivocal: none of the investigations - neither the first, the second nor the third - produced an evidentiary foundation for filing an indictment. That was the basis on which discussions were held in the State Prosecutor?s Office under the state prosecutor at the time [Edna Arbel, now a Supreme Court justice] in the second half of 2003.
"A lengthy and detailed opinion was drawn up whose conclusion was that the case should be closed because there was insufficient evidence against Ariel Sharon and [his son] Gilad Sharon. A copy of that opinion was forwarded to me. At my request, when I took office, a notation was appended to it stating that in the meantime more discussions had been held on the subject with the state prosecutor in which the recommendation had been reexamined. On March 28, 2004, I received an additional, shorter opinion of which the bottom line was a recommendation to indict Ariel Sharon and Gilad Sharon. A draft indictment was appended to the new opinion.
"When I received the second opinion, I raised a question: How did the opinion come to be changed within two-three months on the basis of the same evidence? Without any new evidence having come to light? When both opinions were rendered in the wake of discussions with the participation of the same people and headed by the same state prosecutor? It was unclear to me what the reason for the change was. The more so, because we know of quite a few cases in which the police recommend going to trial, but the state prosecution reaches the conclusion that there is not enough evidence - but I don?t recall an opposite case.
"The second opinion rendered by the State Prosecutor's Office seemed to me completely wrongheaded. Accordingly, I decided to examine the case from the start, anew. Because I did not want to rely on myself only, I set up a professional team of very experienced people in the state prosecution who had not been involved in the case. On the eve of the Passover break in 2004, each of them received a package of the evidence and the opinions. Upon their return to work, they all expressed a uniform first impression: there is no case. But I did not make do with that. For months I held a series of lengthy meetings with the team. Even after 13 or 14 meetings, there was full agreement among the team. The evidence in the Greek island case did not even come close to establishing a sufficient basis for an indictment. There was insufficient evidence to file an indictment."
The prime minister?s son receives more than half a million dollars for surfing the Web - if that isn?t bribery, what is?
"During most of the period under examination Ariel Sharon was not prime minister, but a member of the opposition. Gilad Sharon's employment was not fictitious: he worked intensively and full time as project manager. Others also received very high salaries in that megalomaniac project."
But we all read explicitly in the newspaper Sharon?s incriminating statement: The island is in our hands.
"That was a selective, manipulative and misleading report. When you listen to the entire conversation, you discover that Sharon did not have a clue about the Greek island or about what Gilad was doing and how much he was getting. In fact, precisely that conversation is salient evidence for the defense. To establish a charge of bribery, it needed to be shown that Sharon was aware that Gilad was receiving money intended for him [Ariel Sharon]. Despite the vast scale of the wiretapping, no evidence of that was found, and the conversation you mentioned actually points in the opposite direction. A further difficulty was that Gilad threatened to sue Appel in court and was in correspondence with him through lawyers. That is behavior inconsistent with a bribery context."
So what you are saying is that even now, five and half years later, you have no regrets about your decision in the Greek island case.
"I have absolutely no regrets about that decision. I consider it one of the important decisions I made. Maybe the most important. I think we would have collapsed in court with that case. And a collapse in an indictment against a prime minister has far-reaching implications. It was not an easy decision. I knew I was acting contrary to a public perception that an indictment was unavoidable. But that is precisely why the decision was so important. It was a decision against the current. I do not want to think what would have happened if a different attorney general had flinched from making that decision for fear of criticism and fear of taking responsibility for something that was far from simple."
But you were roundly assailed. People wanted your head.
"People said at the time that Mazuz must go, that after a decision like that there was no way he could continue in office. I told myself that maybe they were right but that I will do the job even if that will be the price. I have to do what I believe in. The weeks after the decision about the Greek island were not an easy time. But I am cut out for sangfroid. I have a character of self-control. I have the ability to repress. I am able to guide myself not on the basis of feelings and anger but by means of a process of rational thought. So the next morning, I resumed the regular work routine."
And then, two months later, you make a decision that is perceived as going in the opposite direction. You launch a criminal investigation against Tzachi Hanegbi for doing what politicians have always done here: making political appointments. Wasn?t there something unfair about that decision? Something arbitrary?
"We decided to do it for a number of reasons. First, the political appointments [in ministries] were never legitimate. Nine state comptroller reports and nine Supreme Court decisions found them to be unacceptable. It was made clear to the politicians that there was something improper here. Second, we did not invent the law. Even 30 or 40 years ago, political appointments were a criminal offense. Third, according to an opinion by Justice Berenson, it is justified to draw the line at a certain point and say that the limits have been overstepped.
"But what very much reinforced our decision was the fact that the Hanegbi case was very flagrant. It involved 90 appointments in a small ministry within a short period. Most of the appointments were at a junior level where there is no justification for a political appointment. So it was clear that this was pure political payment that has no justification and no ideology behind it. Tzachi Hanegbi himself connected the appointments directly to the phenomenon of concrete election bribery. He told the Likud central committee: I appointed 90 in a small ministry, so imagine how many I will appoint if you vote for me [in the primary] and I get a big ministry. [This] showed that Hanegbi had purely irrelevant, political considerations aimed at promoting personal interests. That is why I thought it was justified to make a strategic decision in this case. To raise the bar in the struggle against an untenable phenomenon, and for the first time bring the criminal instrument into play against it."
Later on you dealt with three more affairs involving appointments: the Tax Authority, former Shas minister Shlomo Benizri and Prime Minister Ehud Olmert.
"Yes, and in retrospect it is even more apparent to me that there was no choice but to change the rules of the game. To undo the Gordian knot of such appointments with one swift slice of the sword. Why? Because the cases of [political] appointments that came after Hanegbi were far more serious.
"Whereas with Hanegbi the core of the corruption lay in the appointment itself, with Benizri the appointment was only the first step. After the forward unit was sent to seize the key position, the second stage began, in which the appointee was called upon to issue biased tenders or give licenses to people who were not entitled to them, in return for a bribe. Benizri appointed the head of the Employment Service and afterward demanded that the head of the Employment Service issue permits to Mr. Sela, who had given him a bribe. In other words, you have here the corruption of the system itself.
"In regard to the affair of Olmert?s appointments, overall, I can say that this is like the Hanegbi case, but more serious. A long series of appointments and benefits of various kinds to cronies in order to advance political interests and enhance the player?s status in the political constellation. This affair is graver than the Hanegbi case, because in the relevant period Olmert constituted about half the government. He was minister of commerce, industry and employment, minister of communications, in charge of the Israel Lands Administration and in charge of the Broadcasting Authority. Some of the appointments were also to positions more significant than the junior positions in the Tzachi Hanegbi case. Nearly 200 instances were examined; not all them reached the finish line, but it?s still a hefty number of cases. It?s a huge case from the point of view of the amount of material. It does not raise new or innovative [legal] questions, but it involves a great deal of plodding work. You also have to remember that Olmert did what he did after Tzachi Hanegbi and after Hanegbi was already involved in a criminal proceeding."
And the Tax Authority?
"I see the Tax Authority affair as one of the most serious cases we dealt with. Maybe the most serious of them all. If this affair had not been uncovered and brought to a halt, we would have arrived at a phenomenon like the Mafia in the United States; when the Mafia buys a key figure in the judicial system, in the governmental system and in the legislative system and harnesses them in the service of its activity."
Aren't you exaggerating? All in all, we are talking about the familiar Israeli system of cronyism, a kind of upgraded protection.
"We got onto this affair by chance and with a little luck. From wiretapping in a different case, we discovered that the head of the Tax Authority felt he owed his appointment to people with political interests who felt they had bought the head of the Tax Authority. You have to understand that the head of the Tax Authority holds one of the strongest and most sensitive positions in the Israeli establishment. He oversees a body that produces hundreds of billions of shekels. And what we see is that gradually the top echelon of the Tax Authority begins to be painted in red, with each bit of red being an appointee who came from one of the people in the case. [Olmert's former office manager] Shula Zaken?s brother has business interests. It's important for him to have his man in the Customs Authority in Ashdod because he imports merchandise through the port there. And it's important to have someone in the tax assessor?s office in Tel Aviv, because that's where his tax returns are filed. So he and his friends say shamelessly to [former Tax Authority head] Jackie Matza: We want this done here and we want you to appoint that guy there. And within a short time they succeed.
"So, if the affair had not been caught in time we would have quickly reached a situation in which the entire senior level of the Tax Authority is packed with people who owe their appointment to people with vested interests outside the system. And afterward these people trade with their power. Because if you possess such huge power you will not exploit it only for yourself - you will leverage it. You will offer your services to others in return for a commission. Of all the affairs I am familiar with, both historically and during my term, this is the closest we have come to a hostile takeover by vested interests of one of the most sensitive public systems. That is why I consider it the most serious case of all. Here the disease penetrated deep into the body and became cancerous."
What you are saying is that in terms of the rule of law in Israel, the moment of the Tax Authority was the most threatening moment of all.
"It was a threatening moment. I remember that the first time it absolutely threw me for a loop. The thought that vested interests were taking control of the Tax Authority was harrowing. Because that's almost the end of the road. And it happened so easily. So you stop and ask yourself: Just a minute, if it happened here, maybe it happened in other places, too. After all, I never imagined that we were capable of reaching that situation.
"But there was another hard moment. The story of Haim Ramon is complex or strange in many aspects. On the one hand, it is ostensibly a small, marginal event according to normative and criminal criteria. On the other hand, this ostensibly small and specific and marginal event exposed us to a public reaction that was surprising in its intensity. Through that event I saw how it is possible to harness entire systems to engage in some sort of delegitimization of the law enforcement system, in part by means of blatantly lying claims. So you see that if you thought that the system is perched on legs with strong foundations, in reality it is not so. There are forces that can destabilize it."
By your leave, let's divide the matter into two. First the Ramon affair itself. Don?t you think it is unwarranted to place a cabinet minister on trial for a kiss? Don't you think this was a salient case in which the response should have been left to the public's normative criteria rather than to the penal code?
"From the start, the event itself, in terms of a professional analysis, was an offense. It also had a more serious context. These were not two kids, a male and female soldier. On the one side was a cabinet minister, on the other a female soldier, a state employee, who was in a government facility. Not to mention the time and the place. In other words, this was an act which in terms of its components was certainly a criminal offense. When a complaint is lodged against a minister who forces himself on a soldier in a government office, it is not something we can ignore.
"The story could have been [explained as] a mistake. It could have been argued that it was not a comedy of errors, but a tragedy of errors. Mr. Ramon could have said: It was a mistake of comprehension on my part, maybe because of the generation gap, but I understood that she started up with me. So I admit the mistake, apologize to her and thereby defuse the event. If Ramon had done that, he would have negated the criminality of the event. What would have remained was a matter for the public to judge. But Ramon did not say he had made a mistake. He claimed the woman was lying. So we were confronted with two accounts: either Ramon was lying or the soldier was lying. And in that situation, I am not aware of any reasonable possibility [of disregarding] this story. In the end, the court decided in the most unmistakable manner that it believed the complainant and not Ramon, and Ramon was convicted.
"In the scale of justice this is seemingly the simplest and most minor of all the public cases I dealt with. But this particular case generated the most serious assault from the systemic point of view: on the police, on the state prosecution, in the courts. It exposed a great many forces that harbor a great deal of hostility and resentment toward the entire judicial system, and it was frightening in the sense that we felt a bit insecure at the systemic level. So you say to yourself, if an event like this can generate opposition on this scale, it means that the Israeli society is far less firm than we thought. The basic values of the rule of law, respect for the law and enforcement of the law are not sufficiently entrenched and rooted here.
"The most frightening moment came on the eve of the trial. I remember that we sat in this very office and tried to think what would happen should Ramon be acquitted. It wasn"t a case in which we could tell ourselves an acquittal was inconceivable. It was a case of sexual offense, of one version of events against another, in which an acquittal would be a result acceptable to the public. Israel is not Soviet Russia or North Korea, in which those who launch the investigation also decide its outcome. Convictions and acquittals are part of the judicial process. But because of the raging furor it was clear to us that an acquittal might prove destructive to the system. As it was, there was an atmosphere of self-defense, of siege. Some sort of hidden, unnamed hand was at work here, elements at war with the rule of law. People with ties to Ramon also worked in one way or another and succeeded in mobilizing very large forces. The result was a campaign of delegitimization in its most straightforward sense. There were attacks on the judges in the case. There were attacks on our prosecutors. At the height of the events, I was concerned that the campaign might adversely affect the system?s ability."
With regard to Olmert, it is alleged that you persecuted a serving prime minister and in the end unseated him.
"There is no more baseless contention than that. I can say that with the exception of one marginal episode, which did not make the headlines, not one of the things we latched onto turned out to be without foundation. In each subject it emerged that the suspicions were real. Some of them led eventually to an indictment, while in others the findings we were able to arrive at were not at a level to justify an indictment. But none of the cases of management and behavior merit a prize for proper quality of government.
"Take, for example, a case that in the end was closed: the Bank Leumi case. I did not deal with it. But when you read the opinion rendered by the state prosecutor, it is quite clear that there was improper behavior there. The final decision was that the improper behavior is not criminal behavior, but there were things to examine. And the decision proved that our system does not hurry to label every case of improper behavior criminal."
The true crushing blow against Olmert was the deposition by U.S. businessman Morris Talansky. The allegation is that there was no professional justification for deposing him, that it was an aberrant procedure with the aim of vilifying the prime minister publicly.
" will start from the end. After giving his testimony and returning to the United States, Mr. Talansky refused to return to Israel for a long time, almost a year. Objectively, it was proved that our apprehension was justified and was in fact realized. It is hard to think of a more blatant case that justifies prior testimony. That is routine practice in the case of a key witness who is a foreign resident. Moreover, he is not a young man, he is a suspect and he says of himself that he was a close friend of Olmert', so he has a clear interest not to come back here, not to incriminate and not to testify against Olmert. It is not by chance that three judges in District Court and three justices of the Supreme Court rejected the allegations against the deposition.
"nd as for the vilifications: We asked for the evidence to be given behind closed doors. We did not want any sort of public effect; we wanted quiet. The allegations against us in this entire matter are groundless from A to Z."
Meni Mazuz, you unseated a prime minister.
"he decision to bring a halt to Olmert'sterm of office was not mine. Nor did it necessarily follow directly from my decision. In the High Court of Justice petition, I said that under Israeli law a prime minister does not have to resign in consequence of a decision to launch an investigation [against him]. Olmert' decision to step down was rooted in the political arena, at the political level and in the prevailing political relationships. All I did was to make the obligatory decisions within my purview."
Still, you started your term as attorney general by closing a case against a prime minister and ended it by filing a harsh indictment against a prime minister.
"any years ago, when I was living in Washington, I saw on television a prosecutor emerging from the courtroom and addressing the television cameras, beaming with pleasure. He said: We succeeded in convicting that man and he will never see the light of day in his life. I found that very grating. It continues to grate me even now. I think we have to deal with the matters at hand without joyfulness. We are not headhunters.
" do not ignore the fact that there may be a certain symbolic import in this closing of the circle. But the timing was not arranged by anyone. What was truly important to me when I dealt with a president and a prime minister and cabinet ministers and rabbis and judges, was to be color-blind. That means neutralizing yourself when deciding whether or not to indict. On the operating table, the patient is usually covered with a sheet in which only an opening is made, so that the surgeon can ignore the context. The face is erased, the body is erased and he deals only with the tissue of flesh. That is how I behaved in the Olmert case and in the other cases involving public figures. I told myself that my task is not to decide whether it is good for Israel that he is prime minister, but to decide professionally according to the rules of work. That?s all. I very much believe in the work process. In the end, that is your only anchor, even with yourself. It is the anchor that guarantees that you were not influenced by one thing or another but stuck to a rigid professional work process. Without shortcuts, without going easy, without biases. I believe that that is how I behaved. Accordingly, I believe that in the Olmert affairs, too, I arrived at the right results, results which differed from one other in each separate affair."
Avigdor Lieberman has been under investigation for more then a decade without even one indictment. Isn' he just being harassed by the system?
"I losed the previous case against him, not because it was not serious, but because the investigation did not produce enough evidence. The case that is now pending dates from mid-2006. The investigation has been conducted with appropriate speed, with the exception of a few setbacks caused by people under investigation. There were also delays due to the fact that part of the investigation is being conducted abroad. I will put it this way: The case is dealing with considerable suspicions regarding meaningful acts over the past decade, and there is a clear public interest in completing the investigation. A decision in this matter is expected shortly. W
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