Attorney General Elyakim Rubinstein, who over the weekend recommended the dismissal of the head of the police investigations division, Major General Moshe Mizrahi, was supposed merely to decide whether Mizrahi had acted properly in ordering the transcription of various wiretapped conversations made in the late 1990s by Avigdor Lieberman, the current transportation minister. Instead, Rubinstein wound up producing a lengthy report that criticized Mizrahi's wiretap policies in general and other aspects of his behavior during his previous job as head of the international investigations division - many of them at best tangentially related to the Lieberman affair.
Unlike the rest of the state prosecution's top echelon, Rubinstein concluded that Mizrahi had exceeded court orders not only in his handling of the Lieberman wiretaps - which primarily involved calls to his then aide, Michael Gorlovsky (now a Likud MK) and to businessman David Appel - but also in his handling of wiretaps of prisoners proposed by the police's intelligence department and of wiretaps of another individual, who was not named in Rubinstein's report.
Mizrahi charged that Rubinstein was well aware of all these wiretaps at the time, as well as of the transcriptions; other police officers also said that Rubinstein had been kept informed of these matters. Rubinstein, however, denied this vehemently.
"The general picture of the behavior of the commander of the international investigations division, as revealed by the probe [of Mizrahi], is an extremely problematic one - both toward those below him and toward those above him," wrote Rubinstein. "There was disregard for [court] orders, massive transcription of conversations of a political nature, and a lack of consultation and reporting."
The heart of the dispute between Rubinstein and the three people immediately below him in the prosecution hierarchy revolves around the fact that court orders approving wiretaps always state that only conversations related to the matter under investigation may be transcribed. Rubinstein agreed with the conclusion of Eran Shendar, the former head of the Justice Ministry's department for investigating policemen, that many of the conversations Mizrahi transcribed dealt with personal, political and even intimate matters. The connection between these conversations and the matter under investigation "was marginal in many of these cases, and sometimes no such connection existed at all," wrote Rubinstein.
"Over the course of several months, during an election campaign, a senior officer in the Israel Police was receiving ongoing information about opinions, contacts and processes taking place among the political leadership, including clearly political conversations by the sitting prime minister, without anyone other than his subordinates - who, at his orders, took part in this - knowing that this sensitive information was in his possession, and without him reporting this in the appropriate manner to his superiors. That is a grave and intolerable outcome, even if it is not what the police officer intended, and even if he made no use of the material, since it is impossible to know whose hands this material might have fallen into in the future," he added.
Mizrahi argued in his own defense that because of the sensitivity of the investigation, he had ordered all his investigators to let him decide any time they were not certain whether a given conversation was relevant to the probe or not. These naturally included political conversations that could potentially be relevant, whether directly or indirectly. However, Mizrahi did not receive full transcripts of such conversations; he merely received paraphrased summaries.
The three senior prosecutors who disagreed with Rubinstein's conclusions - State Prosecutor Edna Arbel, head of the criminal division Nava Ben-Or and Yiscah Leibowitz - concurred that Mizrahi's practices were flawed. However, they viewed these flaws as marginal, and capable of correction through dialogue and instruction. Furthermore, they argued, by issuing such a harsh report, Rubinstein might well deter other police officers from investigating public figures in the future.