Holding Forth Over the 'Old' Court

Many remember him as head of the commission that allowed the Shin Bet to employ 'moderate physical pressure' in interrogations. But Justice Moshe Landau, according to the author of a new biography on him, put the rule of law above all else.

Michal Shaked's first encounter with Moshe Landau was in 1972, when Landau was a justice of the Supreme Court, with 20 years of seniority. Shaked was an attorney just starting out, appearing before him for the first time.

"He scared me, and he never stopped scaring me from that time," she recalled this week. "He was a scary justice. Altogether, the Supreme Court in those days was full of very scary people."

Elon Moreh - GPO - 11.5.12
Moshe Milner / GPO

Twenty years later, in 1995, the two met again, this time in Landau's home in the Rehavia neighborhood of Jerusalem, after he had retired. Shaked approached him in the hope of getting an answer to a legal question related to the trial of Adolf Eichmann, in 1961-62, over which Landau presided. "I wanted to know why this judge, who conducted the trial with such virtuosity, saw fit to question Eichmann himself after the lengthy questioning by prosecutor Gideon Hausner," she says. Landau refused to answer. "I have written memoirs," he told her crossly, "but they are intended only for my family."

"As usual, I was scared of him," recalls Shaked.

A decade later he decided to allow his memoirs to be published, having been persuaded to break his silence. At the next meeting with Shaked, he gave her a stack of 140 typed pages. Shaked's use of the memoirs, combined with a review of his rulings, gave rise to her biography of him, "Moshe Landau, Shofet" ("A Biography of Justice Moshe Landau," just published by Aliyat Hagag Books and Yedioth Ahronoth Books ). Last week also marked the first anniversary of Landau's death at the age of 99.

"The generation of the old court, which has wrongly been expunged from public memory," according to Shaked, "[is] the generation that shaped the Supreme Court as wise, independent, innovative, courageous, enlightened and devoid of sidelong glances at political considerations." Landau, she believes, is the one who "closed the door on this generation."

Born in Danzig, Germany (today Gdansk, Poland ), Landau began serving as a judge in a British Mandatory court in Haifa in 1940, at the age of only 28. By the time he was 41, he had been appointed Supreme Court justice, a position he held for nearly 30 years, from 1953 to 1982; during the last two years he was president of the court. Those who knew him describe him as tough, direct, authoritative, efficient - a man of conscience and integrity, with lightning-fast understanding.

Landau's rulings touched upon all the elements of the Israeli puzzle: Judaism, Zionism, democracy, religion-state relations, the occupation, the Arab minority and human rights. Many of the cases he heard took the public by storm; his decisions became landmarks in Israeli jurisprudence. A partial list (in addition to the Eichmann trial ) includes the disqualification of the Arab al-Ard (The Land ) movement from running for the Knesset; the petition to the High Court of Justice by Benjamin and Anne Shalit, which compelled the state to register as Jewish a child of a non-Jewish mother; revocation of a law for public funding of election campaigns - the first law passed by the Knesset to have been nullified by the court; and the overturning of a decision by the Board for Supervision of Films and Plays to ban the screening of a newsreel showing police violence.

Landau was also an object of public fury in the wake of his membership on two investigative bodies: the Agranat Commission, which examined the failures leading up to the Yom Kippur War, and the commission he headed that investigated interrogation procedures in the Shin Bet security services, which gave rise to the report on the subject that bears his name. Until the final days of his life, as he often told acquaintances, he was hounded by the term "moderate physical pressure," appearing in the report, which determined that sometimes there is no alternative but to use such means in Shin Bet interrogations.

The media and the public have largely forgotten the rest of the report, which said the Shin Bet must not torture and humiliate people being interrogated, and must keep comprehensive records of its investigations.

Landau - Harari - 11.5.12
Isaac Harari

The Elon Moreh ruling

Asked which of Landau's rulings is most important, Shaked replies unhesitatingly: "The Elon Moreh petition to the High Court in 1979, which was the first and the last time the court 'canceled' a settlement." Previously, similar petitions submitted by Palestinians against settlements built on their lands had been rejected by the High Court. The justices, and Landau among them, chose not to intervene when the Israel Defense Forces cited "security considerations" as a basis for allowing the settlements to remain in place. The most notable such case involved the authorization the court - presided over by Landau, then deputy president - gave to the establishment of Beit El in 1978.

A few months later, however, in a stunning reversal, the High Court ordered the state to evacuate Elon Moreh and to return the land to its Palestinian owners. For the first time in its history the Court ruled that ideological and political considerations had been behind the establishment of a settlement, rather than military and security rationales, as the state had argued. "The impression arises that the settlement on the land was organized like a military operation, exploiting the element of surprise and in order to preempt a 'danger' of intervention by the High Court of Justice," wrote Landau in the ruling.

"This is Landau's greatest ruling," says Shaked. "It is very courageous and direct, putting the rule of law above everything and aiming to keep Israel among the enlightened nations. And mainly, it was an unambiguous ruling. In this respect it is different from today's court, in which the decisions on matters of the territories are not sharp and unambiguous."

(The next year, however, the Begin government gave Elon Moreh residents alternative land, which had been expropriated by the state. This was also challenged in the High Court, but it upheld the legality of the new settlement. )

"Between 1979 and today," Shaked observes, "the situation in the territories has become so tangled, and politics threatens the Supreme Court so much, that maybe the justices don't have the possibility of ruling now the way they did then."

Landau's integrity, which was always his calling card, is what led him to rule against Elon Moreh, even though he was not politically identified with the left. Shaked personally remembers other examples of that integrity. In the late 1970s, she began working in the department in the State Prosecutor's Office that dealt with petitions to the High Court.

During that period, the court heard many complaints from prisoners about the conditions of their imprisonment. "They pestered, they talked nonsense, they lied, they often cheated - only to get an outing from prison," she recalls. "The court had every reason to get rid of this curse." Landau, however, opposed transferring these cases to a lower court. "He believed justices should be connected to the people they send to prison," explains Shaked.

Her biography includes a description of a case in which a prisoner appeared and demanded that the court see to the return of his personal effects, which he claimed had disappeared during a visit by prison officials to his cell.

"Landau listened to the prisoner, who stood there and gave a detailed inventory of shirts, sweatpants and sport shoes that had disappeared. Suddenly, the prisoner stopped declaiming his list and said to the president of the court: 'Why aren't you writing? Write. Write.' Without saying a word, Landau picked up a pen and wrote," Shaked writes in her book.

The stork deception

Four years after Moshe Landau was born, his brother Michael was born. "This time my mother gave birth at home, and I remember I was playing with my blocks, which were made of sandstone, when they called me into my parents' bedroom to meet my little brother. Right there they deceived me with the story that a stork had just then deposited the newborn through the chimney. I was disappointed I had been unable to witness the truth of that story with my own eyes," Shaked quotes him as writing.

In 1933, Landau received his bachelor of laws degree from the University of London, and subsequently immigrated to Palestine with his family during the Fifth Aliya, the wave of Zionist immigration that was dominated by Yekkes, Jews from German-speaking countries. After qualifying as an attorney, he was in 1940 appointed a judge in the Haifa Magistrate's Court by the British authorities. To that end he learned Arabic.

In his memoirs, he relates an incident from his early years in the country, which made him decide never to drive a car again.

"Michael was working as a trainee at the Kadoorie Agricultural School in Kfar Tavor. He had bought a heavy Harley-Davidson motorcycle. From time to time I would borrow the motorcycle from him, and one day I was riding it to visit him at Kfar Tavor (without a license )," he wrote.

On the way, Landau passed through the area of Nablus. The stunning view and the sharp turns in the road made him lose control, fall off and injure his head. Arab laborers who were working on the road drove him to a hospital in Jerusalem.

"This adventure," he wrote, "... put a permanent end to my motorized career. Instead I continued to ride a bicycle through the steep streets of Jerusalem, until my wife demanded that I stop because in her opinion my appearance on my bicycle was not congruent with my status."

In 1945, while Landau was still serving as a magistrate in Haifa, he issued an evacuation order to a tenant who was in arrears over his rent. On his way home the tenant ambushed and stabbed him in the shoulder, not far from a major artery, before fleeing. Years later, when Landau was a Supreme Court justice, the assailant showed up without warning in his chambers. "He began by pleading for forgiveness and told me that at the time he had managed to escape to Iraq, where he was arrested there on suspicion of spying for Israel, was questioned in an interrogation that 'cost him all his teeth,' spent years in prison and only now had been released and had come back to Israel," wrote Landau. The aim of his visit was to ask Landau for help in getting a cab driver's license.

"In that he overstepped the bounds," wrote Landau. "I told him I forgave him for the crime he committed, but I would not do anything for him. I showed him the door and he left and I never saw him again."

Landau loved his work and described it as "the only profession that combines service for the sake of the public, a search for truth and justice and dealing with intellectual challenges, yet at the same time ensures a professional his independence and ... reasonable economic security."

In Landau's opinion the so-called judicial revolution led by then-Supreme Court President Aharon Barak led to excessive and dangerous intervention in public and political disputes. The most dramatic example of this was the decision that the Supreme Court is entitled to nullify legislation passed by the Knesset - a decision that has since led to repeated attempts by the Knesset to limit the court's power and status. Currently these attempts are being translated into a proposal to enable the Knesset to re-legislate a law the court has negated.

Landau, unlike Barak, believed that the power of the court and judicial branch in general should be limited. He warned against turning the court into "an institution where the justices see their purpose as writing essays in the science of jurisprudence and in so doing creating distance from its role of doing justice to the litigant who is hanging on his every word."

According to Shaked, "Landau had a complex attitude toward Barak. On the one hand, he admired and liked him, and I wouldn't be surprised it he was a bit envious of Barak's power to charm, persuade and be human in a completely non-Yekke way." On the other hand, "he was strongly critical of Barak's approach to the role of the court, and thought he was arrogant. Beyond that, he also felt that Barak's generation minimized and had even eradicated the memory of the 'old' court, the court of Landau's generation."