Analysis

Israel's Justice Minister Knew He Was Violating Court Order to Taint Netanyahu Case

Amir Ohana's excuses are not very convincing: His actions look like a planned effort, and underscore an important point – he has no respect for the law

Israeli Justice Minister Amir Ohana speaking at the Knesset during a briefing of the Central Election Committee ahead of the September 17 election.
Olivier Fitoussi

After a storm arose earlier this year in response to his comment that court rulings need not always be followed, Justice Minister Amir Ohana retracted the remarks. But it seems as if the retraction was a temporary one and not meant seriously. On a basic level, Ohana maintains this position. And he doesn’t just say it, he acts on it.

On Wednesday Ohana stood at the Knesset podium and shared details with the world about the investigation of Prime Minister Benjamin Netanyahu’s former spokesman, Nir Hefetz, who had turned state’s evidence in Case 4000, the Bezeq-Walla case. These details had been suppressed by a gag order issued by a court. Ohana was apparently making it clear to those he had described as “the prosecution within the prosecution,” that he couldn’t be silenced. When he has the opportunity to serve Netanyahu and “stick it” to the police, he will do it no matter what, even if it means violating a court order.

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It seems that the student has exceeded his teacher. It was Netanyahu who, as a Knesset member in 1995, showed the way. He stood on the Knesset podium and read from a top secret military document he had apparently acquired in some forbidden fashion, as the High Court of Justice also asserted. But who complains when a leak serves us, in complete contrast to a leak which is bad for us?

Netanyahu allegedly violated the criminal restrictions on leaks under aggravated circumstances because of the sensitive nature of the document he was reading from. He avoided an indictment by the skin of his teeth. The High Court has made a distinction between things said inadvertently (like blurting out the name of someone whose identity cannot be revealed) – which are covered by parliamentary immunity – and revealing confidential things deliberately. Parliamentary immunity is meant to allow MKs to say what’s on their minds without having to censor themselves out of fear that they’ll tangentially touch on things that cannot be said. The immunity covers these margins. It doesn’t cover a deliberate exploitation of it to break the law in public.

Netanyahu evaded prosecution because of the special circumstances of the incident. During his initial speech, in the context of a no-confidence motion that Likud had filed against the government for ignoring accepted security principles regarding security arrangements during its negotiations with Syria, Netanyahu was holding the document on which his arguments were based, but did not read from it. Then-Foreign Minister Shimon Peres denied what Netanyahu claimed, and added that in his opinion it was Netanyahu who had written the so-called “document” and it was only a bluff. In response, Netanyahu revealed details from the document itself.

The court believed that the reading of the document was a spontaneous response to Peres’ denials; that Peres’ claims were an event over which Netanyahu had no control and which put him in an exceptional emotional state. As a result, his reading from the document was covered by parliamentary immunity. This was the precedent that led Knesset legal adviser Eyal Yinon to clarify in 2013 – following leaks that violated a gag order in the Prisoner X case – that exposing secret information deliberately isn’t covered by parliamentary immunity.

There is no similarity between Netanyahu’s alleged violation of the law and Ohana’s behavior. The minister’s excuse that what he said had already been published doesn’t change the picture. The fact that a gag order was already violated does not give one license to violate it again. Moreover, there is a difference between an article on some website and remarks made by the justice minister, which give them an aura of an official, verified statement.  The public doesn’t know that Ohana is no more than a mouthpiece of the website and that he didn’t check whether the allegations reflect reality. The public doesn’t know the degree to which rumors on social media that have replaced real information have conquered the Justice Ministry, or more accurately, the person who heads it.

The minister’s second excuse, that he doesn’t know the exact content of the gag order, is worthy of a child. The minister would have had no difficulty asking to see the order, but in any case it was clear to him – as it was to any consumer of Israeli media – that his remarks were violating it. Ohana apparently believed that he enjoyed immunity, thus his boldness. When he was warned that this was not the case, he got weak-kneed and started to fabricate excuses.

I am not a fan of the way gag orders are used in Israel. When I was president of the Press Council I tried, with very limited success, to reduce their use, which is exaggerated and unjustified. But the justice minister should be the last person flouting a court order, which is why there should be an inquiry. It’s clear that if such an inquiry is conducted, Ohana will claim he is being framed, in accordance with the alibi he has already prepared when he said the prosecution was liable to do this.

Ohana’s cries over what the police allegedly did to Hefetz are the epitome of hypocrisy. He couldn’t care less about the state witness and his rights. What he said in the Knesset, which seriously undermines Hefetz’s privacy, confirms this. Nor do the rights of suspects or witnesses really concern the Netanyahu gang. What is motivating this façade of concern in solely Netanyahu’s interest in disrupting the investigations against him in any way possible. Once again, the issue is Netanyahu’s desire to avoid facing justice, whatever the price, including the torching of the club known as the State of Israel.

This was the background for appointing Ohana justice minister in the first place, and the minister is serving his master in a manner that brings shame on all of us. There’s never been anything like this in Israel. One must hope that the law enforcement system can withstand the unprecedented challenges the political system is posing in an effort to undermine it, even as it examines the investigation process to ascertain whether it was faulty. At this time all law-abiding citizens must support the legal system so it can stand firmly against this ugly wave.