My state, right or wrong
Shai Nitzan, the leading candidate for the job of state prosecutor, has so far proven himself a sharp and persuasive advocate before the High Court of Justice, as well as a security-minded prosecutor who unfailingly identifies with the establishment. Is this the man who will help Meni Mazuz clean out the stables?
The visitors gallery in the Supreme Court was filled to bursting when attorney Shai Nitzan took his position alongside his colleagues from the State Prosecutor's Office. Among those present in the audience was his father, Yaakov, who makes a point of attending his son's important hearings. This time, the importance of the event could hardly be overstated: Nitzan was there to defend Attorney General Menachem Mazuz's decision to bring the Moshe Katsav affair to an end with a controversial plea bargain.
There on the same bench, alongside the battery of attorneys from the State Prosecutor's Office, sat Katsav's attorneys as well, led by Avigdor Feldman. Nitzan and Feldman are old hands who cut their legal teeth on opposite sides of the barricades: Feldman as a human rights advocate, Nitzan in representing the security establishment on behalf of the state. And here were the two of them defending Katsav, both on the side of the respondents. The magnitude of the occasion was not lost on Nitzan. "It's always a good idea to sit on this side," he whispered to Feldman.
Nitzan, 48, the deputy state attorney for special affairs, is the hot name in the race for the state prosecutor's job (see box). Before the Sukkot holiday, a search committee began looking at candidates to fill the position vacated by Eran Shendar, and it is due to submit its recommendation in a month or two. All indications appear to be pointing in Nitzan's favor. His resume appears to be perfect: He interned with Aharon Barak, when the retired Supreme Court president was deputy president of the court, and was quickly deemed destined for a bright future; went on to work as Dorit Beinisch's personal aide; and was rapidly promoted by Beinisch's successor, Edna Arbel until, in 2004, he was appointed to his current position (there are also deputy state attorneys for criminal affairs and civil affairs).
Articulate, sharp and persuasive, he has appeared over the years at dozens of High Court hearings, including many involving matters of national security, and has shown himself to be an ambitious attorney who will do everything for the sake of his client, which in this case is always the state. As the search committee embarks on its task, some say that Mazuz will not forget how Nitzan went to bat for him in the dramatic High Court hearing on the Katsav matter. One thing for certain is that Nitzan won't forget it.
In her effort to understand just how the numerous and repeated testimonies against the president concerning rape and sexual harassment were transformed into a mild plea bargain, Supreme Court President Beinisch gave Nitzan - her former protege - a very hard time. "You're not being quite accurate," she interrupted him time and again. "You're presenting things in a tendentious manner"; "That doesn't make sense"; "We've thoroughly covered that issue"; "That's justsanctimonious"; "That's not serious."
Nitzan, imbued with a fighting spirit, was not deterred. When his colleagues tried to assist him from the bench, to correct him or add something, he silenced them with a hand gesture. In response, attorney Irit Baumhorn, who was supposed to manage the case in court, got up and demonstratively left the courtroom.
"Am I harassing you, sir?," Beinisch finally asked Nitzan. "Madam," he replied with a smile, "you never harass me in any context." The audience burst out laughing. At the end of the hearing, when asked by an acquaintance if it was really as bad as it looked , he responded: "A lot worse."
The evening before the big High Court hearing, Nitzan, who is married with five children, did not forgo his duties on the home front. He and his fellow members of the parents committee at the local public-religious school attended by two of his children in Jerusalem's Ramot neighborhood met with a number of candidates for the position of school principal. Nitzan has chaired the parents committee for the past six years. No matter how busy he is at work, say people who know him, Nitzan always finds time for his family. He's involved in the school, takes the family on outings, likes to take part in communal singing festivals and regularly travels to the annual dance festival in Carmiel with his wife Tamar, an Arabic teacher.
He grew up in Jerusalem, in the Kiryat Moshe neighborhood, in a religious family of seven. His father worked in construction while his mother, Hava, looked after the children. While studying at the Netiv Meir yeshiva high school, Nitzan was also active in the Bnei Akiva youth movement. He always stood out, for his quick tongue and strong opinions. "I remember one argument about whether it was okay to miss classes to go to demonstrations," says Nahum Langental, a former Knesset member from the National Religious Party, who was Nitzan's study partner at Netiv Meir. "Nitzan thought we should stay in school and study. He stayed away from the right-wing demonstrations then. He was the nonconformist among us, the exception."
When he wasn't studying, Nitzan went folk-dancing. As with everything else, he was very serious about it and made it into the Hora Jerusalem dance troupe. "In those days, in that yeshiva world, it was far from the norm and Nitzan kept the whole thing secret," says a friend. He went on to be part of a dance troupe in university, too. He excelled academically, but unlike many of his classmates, who aspired to become great Torah scholars or rabbis, he had other interests. "Nitzan was preoccupied with moral, logical issues," continues Langental. "The metaphysical, spiritual sphere was not for him. When we met one day, after we had finished high school, and he wasn't wearing a skullcap anymore, I wasn't surprised." The process that led him to remove his head covering began in the army and continued in the long trips he made to the Far East and South America, say some who know him. But he didn't abandon the religious way of life. Religion and tradition are still very important to him. He observes Shabbat and sends his kids to religious schools. "He's religious in his outlook," says a friend. "Kippah or no kippah, that's beside the point."
He enlisted in the paratroops in 1978 and served in Battalion 890. "At first glance you wouldn't pick him for a paratrooper," says a veteran of the battalion who served with him. "He looks delicate and sensitive, in the good sense of the word. He wasn't a killer type. He couldn't kill an ant. He really stood out in our platoon." After being discharged with the rank of staff sergeant, Nitzan enrolled to study law at the Hebrew University of Jerusalem. He graduated with honors and also completed a bachelor's degree in Jewish history. "He was considered the top student in our year," says a classmate from that time. Friends from the campus were surprised when they were invited to "do Shabbat" at his parents' home and discovered that he came from a religious household.
Upon completing his studies he was accepted for an internship with Aharon Barak, who was then the Supreme Court vice president. The two became close and at the farewell party at the end of the internship, Barak remarked that Nitzan was cut out to be a judge. It was subsequently suggested to him that he submit his name as a candidate for a district court judgeship.
After the internship with Barak, he set off on his own on a long trip to the Far East, and upon returning, he began another internship with attorney Yaakov Rubin. Rubin remembers him as a young man with a keen analytical mind and a phenomenal memory. Nitzan already had his sights set on the public sector, he says. When the internship was concluding and he wished to be hired by the State Prosecutor's Office, Rubin picked up the phone and called State Prosecutor Beinisch and warmly recommended the young intern. Beinisch agreed to interview him, and as a result asked him to become her personal assistant.
Nitzan worked as Beinisch's personal aide for five years. "She loved him like a son," says someone who knows them both well. Beinisch consulted closely with Nitzan and included him in everything. Other district attorneys still remember how Nitzan sat beside her at internal meetings and confidently expressed his views. They also recall the verbal ping-pong the two used to engage in while searching for one quote or another in the biblical volumes in her office. "He was conscious of his worth," says someone from the State Prosecutor's Office. "He had plenty of confidence, had always been someone's protege. Some people thought he was arrogant."
One indication of the extent of Nitzan's connections can be found in his 1992 wedding. Not every rookie prosecutor has guests of honor at his wedding like Aharon Barak, by then the president of the Supreme Court; Dan Meridor, who was justice minister at the time; and Dorit Beinisch, whose dancing at the wedding is still fondly recalled by people in the State Prosecutor's Office. The relationship with Beinisch endured beyond Nitzan's time working with her. An attorney who until recently worked in the Supreme Court in close contact with the justices says that Nitzan used to come "more than other people" to the second floor of the majestic building, where the offices of the justices, including Beinisch, are located. "Her door was always open to him." In his early years in the State Prosecutor's Office, Nitzan earned a reputation for being a quick study and having outstanding rhetorical skills. Today he is considered the office's top litigator. "In his first years in the office, Nitzan never lost a case," says someone who worked with him. "Beinisch used to tell him that he wouldn't be a real lawyer until he lost."
His proximity to the top tier also drew fire. In 2002, after 13 years at the State Prosecutor's Office, Nitzan was promoted by Edna Arbel from his job as head of the Security Affairs division to director of the Special Tasks Division. This sparked something of an outcry among the district attorneys. The disgruntled attorneys met at a national conference in Tel Aviv organized by the State Prosecutors Committee and there, in a rare move, it was argued aloud that Arbel was handing out senior positions to her cronies in the main Jerusalem office of the State Prosecutor and not transferring these positions to the other districts.
"There's no question that his quick advance was tough for others to swallow," says a senior attorney who worked in the State Prosecutor's Office until recently. "Edna promoted Nitzan and people don't like to see others rising to the top so fast like that. There was resistance because he, at his young age, had bypassed others. Nitzan has a lot of self-confidence, and he was frequently perceived as conceited, but he also had reason to be. The top brass definitely singled him out for greatness."
Nitzan's main professional downside is his lack of experience in criminal cases. Many people feel that this will be to his detriment if he does become state prosecutor. "Nitzan has appeared before the High Court of Justice on criminal matters," says another senior prosecutor, "but between being a prosecutor who argues High Court petitions and being able to read a case file with evidence and understanding its significance, being able to predict what will happen to this evidence in court - there's a difference. And it's a matter of years of work. Even if you're very talented, and Shai is very talented, he doesn't have the experience of court appearances in criminal cases. And the State Prosecutor's Office is the biggest law office there is in terms of the criminal context."
Retired justice Dalia Dorner, before whom Nitzan appeared many times, is not worried. "He's someone with very good litigation skills who has defended things that were sometimes hard to defend, but he does it well, even if he sometimes loses."
And if he's appointed state prosecutor, will he be good at that job?
"I think so. He's an independent thinker."
Defending the indefensible
From the start of his career, Nitzan was drawn to the security-related cases. In leftist circles, there are many who think that the way he handled such cases is indicative not only of his personality but also of his worldview. When word of his candidacy for the state prosecutor job got around, there was agitation among the organizations and lawyers who deal with human rights cases. To many of them, Nitzan represents the heavy-handed establishment.
"I think Shai Nitzan has stood for and stands for the things that I'm most opposed to," says attorney Michael Sfarad. "He defends actions that I consider immoral. I think he's wrong, but I respect him and believe that he does these things out a genuine faith that he's doing the right thing."
The biggest security case of them all was given to Nitzan in 1997, when he was put in charge of security affairs in the State Prosecutor's Office and represented the state in High Court petitions on the subject. The job entailed intensive work with the various branches of the security establishment. The relationship between the district attorney and the army was so all-embracing that, in 1999, Nitzan became the first employee of the State Prosecutor's Office to spend a year attending the IDF's National Security College, where he sat alongside major-generals and brigadier-generals. As usual, he excelled in his studies.
Shabtai Ziv, who was the legal advisor to the Shin Bet security service at the time, remembers Nitzan well. "From the beginning, I wanted him with me, in the Shin Bet," he says. Nitzan quickly earned a reputation as an attorney for whom national security is paramount. He defended the state and the security services in dozens of cases. This included representing the state in all the proceedings related to Mordechai Vanunu's release from prison, three years ago; when human rights organizations petitioned the High Court against a law that prevents Palestinians from suing the State of Israel for compensatory damages; and in a hearing on the expulsion of relatives of three terrorists from the West Bank to the Gaza Strip.
He has also represented the state on the issue of targeted assassinations. In January 2002, a petition was submitted jointly by the Public Committee Against Torture in Israel and LAW: The Palestinian Society for the Protection of Human Rights and the Environment. Attorneys Feldman and Sfarad sought to establish that the IDF's targeted-assassination policy in the West Bank and Gaza was illegal. At one point in the hearing, which proceeded very slowly, Feldman and Sfarad presented a list of the assassinations executed or attempted by the IDF between November 2000 and April 2003: In a total of 175 operations, 235 people were killed and 310 injured, out of whom only 156 were the intended targets. The rest of the dead and wounded were relatives, neighbors or bystanders, including children.
Nitzan defended the IDF's policy, which he argued was in keeping with the proper interpretation of the law. "Israel is currently in a situation of combat versus murderous terror organizations that do not differentiate between legal and illegal targets," he said. In February 2005, three years after the petition was submitted, the case was suspended, following the state's announcement of a cessation of the targeted assassination policy in the framework of the Sharm al-Sheikh understandings and the meeting between then-prime minister Ariel Sharon and PA Chairman Abu Mazen. People who were present in the courtroom when the announcement was made say that Nitzan beamed with joy. "In the present situation," he said happily, "the question of the assassinations has become academic." Feldman maintained that it was just a matter of time until the IDF resumed its old ways. Nitzan, unfazed, told the court that, "if, heaven forbid, the situation changes, the petitioners know the court's address."
The other High Court petition most associated with Nitzan is the ruling concerning the use of torture, which was a stinging loss for the state and considered a historic victory by human rights organizations. In 1999, a panel of nine High Court justices unanimously found that the security forces should no longer be allowed to employ physical pressure against the subjects of interrogation (except for in cases where there is fear for human life and then only with the approval of the attorney general). Nitzan represented the state and the security forces in the matter. It was the culmination of a years-long struggle during which the High Court justices had been reluctant to touch this hot potato of a subject.
During those years, hundreds of private petitions from the subjects of interrogations had piled up on the High Court justices' desks. Eventually, a class-action suit was filed by the Public Committee Against Torture, which was represented by Feldman. For those covering the proceedings, it was hard to ignore the young, self-assured prosecutor who enumerated the interrogation methods - blaring music, tying the person to a chair, "shaking" that could result in death - and passionately justified each one of them. In a dramatic ruling, the High Court of Justice decreed that these interrogation methods would have to cease.
Nitzan took it hard. "After the ruling, he was upset, he thought it was a disaster," says a colleague. "He believed in the case with all his heart. He believed in his arguments and he knows how to argue like someone on a mission. He brought pictures of terror victims to the courtroom. Morally, he defended things that to me seem morally indefensible. He defended the use of torture."
"I wonder if during the 10 days of repentance before Yom Kippur, when he's alone with himself, whether he has any regret over having taken such an unequivocal position," says another prosecutor who's familiar with the case. "It's true that he was a lot younger then. I have the sense that since then he's become more cautious in staking out positions. He was in a position in which he had influence on the state's policies. He could have induced it to express a less rigid stance, to propose to that it accept certain restrictions, but he bet the farm and lost."
Another senior prosecutor believes that his performance in the torture case will hover over Nitzan's tenure as state prosecutor, if he does get the job. While Beinisch knew when to draw the line and refused to defend the Shin Bet (as in the Bus 300 case, for example), he says, Nitzan did not have a red line. "Shai Nitzan identifies completely with the government. Nitzan won't be tested by the cases in which he says no. He'll be tested on the basis of the cases in which he says to the establishment: Yes, I will defend you."
Nitzan's work on such security-related cases hasn't earned him any points with human rights organizations. One story that's regularly cited by his detractors concerns the "chemical" garbage can.
In December 2004, in one of the more chilling petitions submitted to the High Court of Justice, on behalf of HaMoked: Center for the Defense of the Individual, it was revealed that the IDF maintains a secret detention facility where detainees are kept without their families or lawyers being informed. In depositions submitted by prisoners, conditions there were described as subhuman: The inmates spend their days in windowless rooms that have been painted black, without access to even minimal hygienic facilities. Prisoners said that when they asked where they were, the interrogators told them "on the moon" or "in space" or "in a submarine."
Nitzan, who represented the security forces in responding to the petition, explained to the justices that there were good reasons for the existence of the detention center, and added that two justice ministers had visited the place and had no objections to it. In one document, in which Nitzan was asked to list the types of bathroom facilities available to the inmates, he wrote that "the small (isolated) cells have chemical toilets."
Civil rights activists didn't know whether to laugh or cry when they read this answer. One person who had been held in one of these "small cells" described these "chemical toilets" in his petition: "It's a big garbage can with handles and a lid. When I was first put into the reeking cell there was already a dark, stinky liquid in the can... I remember the first time I used it. I spread my underwear on the floor, crapped in them, bundled them up and tossed them in the can. The can remained there with me in the cell just as it was. The stink in the room was unbearable. I tried to press my face to the cracks along the iron doorpost, just so I could breathe..."
"Today there are no prisoners in this facility," says attorney Leah Tsemel, who represented the petitioners. "The state is obligated to inform us if they put any prisoners there. Nitzan's conduct in this case was the same as his conduct in other cases. He thoroughly defended the incident, wholeheartedly, with great dedication. I think that, no matter what, state prosecutors ought to have the feeling that they could be subject to international law or sanction, that they don't have permanent immunity. Nitzan doesn't feel that."
"The fact that the court did not see fit to issue a temporary restraining order in the matter of the incarceration conditions at the facility and rejected the petition speaks for itself," says a Justice Ministry spokesman. "The court issued a restraining order on a single matter - regarding the question of whether the state is authorized to keep the detention facility's location secret. This petition has yet to be ruled upon."
"There's always a tension between the approach that champions the preservation of democracy and human rights and the approach that champions security," says a senior attorney who worked in the State Prosecutor's Office. "The State Prosecutor's Office has a job, to guard the system, to shake it up, and we haven't seen Nitzan do this."
A case in which Nitzan did try to shake up the system while defending it was the High Court petition concerning the Ofer detention center. Shortly after the start of Operation Defensive Shield, in March 2002, hundreds of Palestinian prisoners were brought to the facility. On April 18, 2002, a petition was filed by human rights organizations concerning the dreadful conditions at the camp. Nitzan represented the state. In the course of preparing his response to the petition, he was sent to visit the camp. What he saw there led him to write an internal report in which he raised serious questions about the functioning of the IDF. The report was submitted to Edna Arbel, who was then state prosecutor, and to Elyakim Rubinstein, then the attorney general.
Nitzan had discovered that the human rights organizations weren't raising an uproar over nothing, and he did not hesitate to say so. "Due to a lack of preparedness, hundreds of prisoners remained exposed to rain and cold for several days, with their hands bound," he wrote in the report. "The Ofer facility was not responsible for them and it's unclear who was looking after their needs. Hundreds of prisoners resided there for about a week without bed pallets, mattresses or blankets, not to mention showers or change of clothes."
Later in the report, he talked about the food given to the prisoners: "According to the petition, the prisoners suffered for days from hunger. It is claimed that one package of cheese, one cucumber and some matzo was all the food provided for breakfast for six or seven prisoners. From our inquiries, it appears that this claim was not unfounded... One cannot argue with the fact that it is completely unreasonable, to put it mildly, to keep prisoners under such conditions for many days... These questions are disturbing and require scrutiny."
In Nitzan's response to the petition, there is no trace of the horror he expressed in his internal report. There he wrote that as of the day of the hearing, April 25, the claims were no longer relevant and that conditions in the place were "humane, appropriate, honorable and reasonable" - and all this less than a week after his own visit to Ofer, which caused him to report the exact opposite. Although he did not deny that the rapid intake of prisoners meant that it wasn't possible to supply all of them with minimal conditions for incarceration, "the IDF did act very quickly, while in the midst of combat, to mobilize for a situation in which all the prisoners could enjoy reasonable conditions while in detention."
A spokesman for the Justice Ministry explains that when he submitted his harsh report to Rubinstein and Arbel, Nitzan also saw to it that the "IDF undertake to make improvements in various issues at the facility. Since the petitions to the High Court of Justice dealt with demands that relate to the future, the state's response focused on the situation that prevailed there at the time of the response (after the situation had changed for the better). In addition, the High Court of Justice was also given information about the situation at the facility prior to this."
"Nitzan doesn't rein in the security establishment enough," says attorney Devora Chen, who has dealt with security issues for the prosecutor's office of the Central District, and has worked with Nitzan. "It's a matter of outlook. I represented an approach that is more liberal. He disagrees with me. We argued about this not long ago. In my opinion, you really have to sit on top of the security establishment."
Not beloved by
the right either
Somewhat ironically, Nitzan isn't very well-liked by the right either. As director of the special tasks division, it fell to Nitzan to represent the State Prosecutor's Office on the matter of law enforcement in Judea and Samaria. And so, while the human rights organizations believe that he could have done a lot more to prosecute violations of the law by the settler population, on the right, he is seen as an establishment figure who is working against them.
While Nitzan has been careful to avoid a direct confrontation with the settler leadership, during the time of the 2005 Gaza withdrawal, he took a firm stand as to how to deal with opponents of the operation who took to the streets, blocked roads and clashed with the security forces. Nitzan is also the person who deals with proceedings concerning the laws against incitement and mutiny, most of which have to do with statements made by right wingers.
People who know him say he found himself in a delicate situation. Most of the people he grew up with were vehemently opposed to the disengagement. "To me, Nitzan sees himself as a representative of Peace Now," says Pinchas Wallerstein, the head of the Mateh Binyamin regional council, in the West Bank. "And he'll do everything in his power to sabotage settlement in Judea and Samaria."
Nitzan withstood the pressure. "During the disengagement, he did not argue with close associates or get into confrontations," says his friend attorney Benny Rothenberg. "I think he did his own disengagement from friends. He tried not to express an opinion on the subject. He was at the center of the action. Shai was aware that, in these circles, there was anger at him. That some considered him a 'traitor.' He himself didn't feel that way. He was completely at peace with the role he played in upholding the law."
Hagit Sela, the principal of the Jerusalem elementary school whose parents committee Nitzan heads, and a resident of the settlement of Ofra, recalls a conversation with him about it. "In the political context, his views and mine are very different," she says. "Especially in light of the evacuation of Gush Katif. He had unbending views about the teenage girls who were arrested and didn't want to give their names. He was adamant that they should not be released. I tried to change his mind but there was nothing at all to talk about. He said to me: 'Let's just keep on being friends and concentrate on running the school in the best way.'" W