A Daring Conservative

He was a conservative judge, but also an activist who broke with convention. Moshe Landau, the subject of a new biography, not only left his mark on the Israeli courts, but in effect shaped them. Three words he wrote were, nonetheless, to haunt him until his death a year ago: ‘moderate physical pressure.’

Moshe Landau: Shofet ‏(Moshe Landau, Judge‏), by Michal Shaked, Aliyat Hagag and Yedioth Ahronoth Books ‏(Hebrew) 608 pages, NIS 128.

The question of questions in judicial theory concerns which human qualities are required of an individual whom society appoints to sit in judgment, to become a real judicial leader. Clearly it is not enough to be knowledgeable about the law and have the ability to make decisions, or to skillfully control the proceedings in one’s courtroom. These are necessary conditions, but they certainly are not sufficient.

So what is the nature of the additional qualities required for a judge to become a genuine model, someone whose legacy is studied in law schools and whose decisions are debated and life stories avidly consumed by aspiring lawyers anxious to crack the code? What is required of the judge who steps out of the official boundaries and enters the public arena, far from the air-conditioned courtroom, the judge whose influence makes itself felt in all avenues of society? What makes a judge a giant?

The matter is not a trivial one. A modern democratic society without such figures will have trouble functioning. Only the occasional presence of giants in the courtroom enables the legal system to gain respect and public trust. Trust is perceived, and justifiably so, as virtually the sole tool wielded by judges, who have “neither sword nor purse,” in the words of Alexander Hamilton. It is that which grants legitimacy to judicial opinion, even when there is disagreement about content. This kind of trust can be gained only if the judicial system convinces the public that it is not like other, supposedly “ordinary” administrative authorities − that is, like most governmental branches − but is rather slightly different, something that approaches the ideal of justice.

While we also need to be able to trust other government bodies, a higher level is required for the judiciary, which, in the nature of things, may be expected to disappoint many of those who turn to it − considering that half of them are likely to receive verdicts that go against their wishes. When it comes to human rights, the system often finds itself making rules that defy the will of the majority. In this context, confidence in the judicial system is not founded on a chimerical belief that its practitioners are possessed of a divine wisdom, but on an acknowledgement of the ethical and other qualitative differences between it and the rest of the ordinary governmental mechanisms.

This trust is built upon the great figures who lead the judiciary, especially Supreme Court justices. Moshe Landau, who served as president of the Court, was of this magnitude; the excellent and broad-ranging biography by Dr. Michal Shaked is likely to increase public confidence in the institution. With a sure hand that reveals a deep understanding of legal systems in general and the Israeli courts in particular, Shaked, herself a former judge, captures the life and personality of Landau, who died last year at the age of 99, in a profound, complex, precise and highly readable way. Laymen and law professionals alike will enjoy the story of Landau’s legal career, which is in effect the story of Israel’s legal system to this day.

Shaked begins and ends her book with the three words that became Landau’s worst nightmare and will forever be associated with this great judge: “moderate physical pressure.” On Friday, November 30, 1987, Landau presented Prime Minister Yitzhak Shamir with a paper on Shin Bet interrogation methods that was to become known as the Landau Commission report. He was extremely satisfied, Shaked writes, that he had “found a way to balance law with security by allowing the Shin Bet to exercise moderate physical pressure when necessary as the least worst scenario,” and was proud that the committee he headed did not leave it to security service agents to decide which uses of force were permissible during interrogation, but spelled it out for them in the report’s secret provisions.

The following Sunday’s newspapers, which accused him of double talk and hypocrisy, wiped the smile from his face. For a man and judge generally perceived as being completely honest, this was a blow from which he never recovered. In an interview with Ari Shavit in this newspaper 13 years ago, Landau admitted that “the words ‘moderate physical pressure’ haunt me to this day. They will no doubt haunt me until the day I die.” Landau was convinced that his guidelines had been appropriate, but misinterpreted by observers. Later on he felt that Shin Bet officers had lied to and betrayed him, continuing to torture suspects with methods Landau had prohibited, even as they claimed that they were acting in accord with the guidelines laid out in the report. Landau told Shavit: “They betrayed us, the Shin Bet [was operating according to] double messages: The written law, according to the Landau Commission, and a different oral law in the field, which is really terrible.”

Landau believed the Shin Bet’s flawed behavior after the report was issued stemmed from the personality of the man who headed the organization at the time, Jacob Perry. Nonetheless, Landau continued, to the end, to reject suggestions that the secret provisions of the report be published so that the truth could come to light.

Toward the end of the book, Shaked returns to the torture report and its aftermath, and tells the story of the straw that broke Landau’s back: the High Court of Justice petition filed by the Public Committee Against Torture in Israel in 1998. Here Landau felt betrayed by the justices who succeeded him on the High Court, and not for the first time, when they declared the Shin Bet’s interrogation methods to be illegal torture. Supreme Court President Aharon Barak effectively overturned the recommendations of the Landau report but did not see fit to explain that the interrogation methods the Shin Bet began using after the report was issued had not in any case been part of the secret provisions, and had therefore not been considered examples of the “moderate physical pressure” Landau permitted.

Shaked wonders why “the justices who were already familiar with the [secret] provision, Shin Bet practices and their terrible effect on Landau − why did they not see fit to put matters in context,” concluding: “There are no answers.” The result is that the verdict left the unwarranted stigma in place, and it stuck to Landau as if he had approved the methods now revoked by Barak.

Landau was hurt and angry. He deviated from form and wrote Barak a letter: “What have you done to my human dignity with your verdict?” As far as Shaked knows, Barak never answered.
How can a government minister stumble so badly?

Who was Justice Moshe Landau? The judge who permitted the Shin Bet to use moderate physical pressure, or the only judge ‏who − until the recent case of the Migron outpost − ordered a settlement to be evacuated ‏(no less than Elon Moreh, the flagship settlement of Gush Emunim‏) and its land returned to Palestinians? Was he the pioneering judge in the landmark Bergman case, which marked the first time an Israeli court dared to exercise judicial review and revoke a law passed by the Knesset, many years before Barak announced a “constitutional revolution”? Or was he the man who, after retiring from the Supreme Court, struggled with all his might against Barak’s “revolution”?

According to Shaked, Landau was all of these. He was a conservative, moderate judge most of the time, because that is how he believed a judge should be. Yet he was also a daring activist who courageously broke with convention when he felt this was required and left his mark on the Israeli legal system.

Landau served as a judge for more than 40 years ‏(he began in 1940, at not quite 28 years of age‏). Nearly all the difficult decisions the young state had to face as it felt its way along and sought its identity passed through his hands. He made the decision to uphold the verdict in favor of Amos Ben-Gurion, the deputy police commissioner and the prime minister’s son, in his libel suit against an organization known as Shurat Hatmitnadvim, a group of students who undertook to expose evidence of favoritism and corruption in government, while courageously reducing to almost nothing Ben-Gurion’s award; he disqualified the Al-Ard Arab socialist party from running for Knesset. He decided the Shalit case determining “Who is a Jew?” and he was the chief justice in the Eichmann trial, perhaps the most important trial ever to be held in Israel.

Just how complicated it was to create an independent judiciary may be inferred from an anecdote about Landau from his time on the Supreme Court. Landau was informed that the finance minister at the time, Pinhas Sapir, wanted to see him in his chambers. “The reason for his visit became clear to me: I was to sit on an appeal about a commercial dispute between two international companies. One of them was owned by a wealthy Jew. ... It seemed that this man had asked [Sapir] to intervene on his behalf in the appeal, and the minister took the trouble to come to me. It goes without saying that I interrupted him as soon as I understood his intentions, and I explained to him briefly my amazement that he would even approach me, and I told him that the result of his attempt to influence the outcome of the appeal was that I would recuse myself from sitting on the case. He began to stutter that it hadn’t been clear to him that this was a judicial matter, a rather transparent excuse, and I walked him to the door. I will always be amazed that an Israeli government minister, an intelligent and well-meaning person, could stumble so terribly.”

And the following also illuminates the integrity of the man under the judge’s robe. Unlike other senior officials, Landau refused to accept abandoned Arab property for his own family’s residence. He refused a second time when appointed to the Supreme Court in Jerusalem. According to Shaked, he is the only Supreme Court justice to refuse such an offer.

An ordinary criminal trial

The second part of the book is devoted to the Eichmann trial. It is surprising to learn that to the end of his life, despite the plethora of books, articles and studies of the trial, Landau remained publicly silent on the subject. It is surprising because to a large extent the trial was Landau’s creation. It is only because of Landau that the case did not turn into a Stalinist show trial, remaining instead an ordinary criminal trial, at least as far as such a thing was possible. Shaked rightfully argues that the Eichmann trial could have become a trap, especially for the image of the Israeli legal system, and it was up to Landau to convince everyone that the trial, despite its theatrical foundations, was a just one.

It was complicated. There were clashes between Landau and Attorney General Gideon Hausner throughout the trial because Hausner would not cease “his attempts to sacrifice [its] legal aspects on the altar of drama,” Shaked quotes Landau as saying. In his memoirs, which were written for his family but which Shaked had access to, Landau praised Eichmann’s defense attorney, Robert Servatius: “It is difficult to imagine how the trial would have developed if the defense had acted provocatively and aggressively and questioned the witnesses at excessive length as is customary among many of our attorneys ‏(for example, the embarrassing behavior of attorney [Yoram] Sheftel in the 1987 Demjanjuk trial‏).” If Servatius had decided to try to undermine the credibility of the witnesses, to examine the extent of their precision and question the credibility of their memories, the trial − and history − might have looked different.

Assuming that Hausner did not know in advance how the defense would behave, he took a dangerous gamble by putting Holocaust survivors on the witness stand. As luck would have it, Landau said, “Servatius conducted himself according to the [German legal] education he had received,” and his questions were directed only at Eichmann’s role and did not undermine the general credibility of the witnesses.

In the sense that the trial proceeded in a civil and dignified manner, Landau succeeded. Even Hannah Arendt, the trial’s biggest critic, wrote in her book “Eichmann in Jerusalem: A Report on the Banality of Evil” that Landau “is doing his best, his very best, to prevent this trial from becoming a show trial under the influence of the prosecutor’s love of showmanship.”

Landau also limited Hausner’s efforts to fill the court transcripts with the witnesses’ stories of heroism they demonstrated or witnessed. According to Shaked, the fact that Landau was able to curb descriptions of heroism as much as he did, but allowed Holocaust stories to become known by giving plenty of time for eyewitness accounts, led to a turning point in the way the Holocaust was perceived after the trial. The ethos of heroism became less prevalent after the trial, and Israelis began looking at the Holocaust as a catastrophe that demanded mourning. Israelis began recognizing a different kind of Holocaust heroism, that of those who did not bear arms ‏(often so as not to endanger others‏).
Sticking to the facts

The fourth section of the book is devoted to the battle Landau waged against the constitutional revolution pursued, beginning in the 1980s, by justices Meir Shamgar and Aharon Barak. Landau opposed all its aims, which sought to put the Supreme Court on equal footing with the other branches of the government ‏(unlike the earlier system, in which the judicial and executive authorities are subordinate to the Knesset‏). They also acted to change the role of the court from deciding disputes to being the defender of the rule of law and democracy, making the judicial-legislative function its central role, at the expense of its classic judicial role as an appeals court.

To Landau, these developments constituted a dangerous trend. Previously, in the case of Ann and Benjamin Shalit, in 1967, in which a reluctant Landau was one of the justices who compelled the state to register as Jewish a child of a non-Jewish mother, he wrote that the “sad consequence is that the court has abandoned its rightful place, in all the disputes that divide the public, and the judges descend into the arena.” In a speech he gave in 1982, a month before his retirement, he sought to hint to the justices who had served on the bench less time than he did that “judgment requires the willingness to make a verdict, but an opinion must be formed in order to make that verdict and not just any verdict, because some issue interests the judge and so he feels like saying something about it.”

Landau recommended that the court return to its earlier direction: the method of “going from detail to detail, sticking to the facts ... avoiding theoretical generalizations and the organic, inductive growth of law.” He opposed as unnecessary its being the agent of judicial legislation, by using the deductive method of going from the general to the specific, with didactic, pedagogically structured verdicts, in which judges turn to general principles and dismiss details and fine points.

In the 20 years after he retired from the bench, Landau anxiously saw how his predictions came true one after the other, and how the judicial revolution eroded the court’s standing in the public’s eyes. “Chief Justice Barak continues to lead the Supreme Court in the same way, without noticing the damage he causes to its standing,” Landau wrote in his memoir, in an excerpt cited by Shaked. “I feel like the child in [Hans Christian] Anderson’s story who is not impressed by the emperor’s new clothes.”

A few months after Landau’s death in May 2011, an absolute majority of Knesset members voted in favor of a law that overturned the High Court of Justice’s decision to evacuate the Ulpana outpost in the West Bank. The public’s faith in the institution of the Supreme Court has, it seems, reached a new low.

Yuval Elbashan is an attorney and the deputy director of the Yedid network of citizens’ rights centers.