Israeli Attorney General Gives Netanyahu Cover to Leak Information at Will

Netanyahu is fond of calling for hearings and investigations of leaks, as long as the leaks came from others, especially from others in his cabinet.

Amir Oren
Amir Oren
A very senior suspect.
A very senior suspect.Credit: Olivier Fitoussi
Amir Oren
Amir Oren

A mysterious criminal is at large among the top Israeli leadership. Attorney General Yehuda Weinstein, who will step down three weeks from now, can guess quite well who he is, and so he prefers not to catch him. Last week, Weinstein presented the Israeli governmental and judicial systems with an embarrassing document. Six decades ago, one of his illustrious predecessors, Chaim Cohen, instructed the police and state prosecutor to turn a blind eye to the law banning homosexual relations. Now Weinstein is effectively voiding the laws banning the revelation of secret information.

Weinstein had to resort to some spectacular verbal acrobatics to avoid focusing on Benjamin Netanyahu as a suspect in passing a valuable military secret to the enemy during wartime, and putting him at the head of a list of “dozens or perhaps hundreds” of possible suspects who may have committed a criminal offense by leaking classified information, “breach of duty” or breach of trust. Swelling the number of suspects to such proportions is designed to diminish the worthwhileness of the investigation. The pretext: When life is being risked in combat, there is no “aggravating severity” for those issuing the orders at the top and the “core of the secret” is not affected. What is this core? Does it refer only to intelligence and nuclear matters? That was not specified. The content of the core is apparently a core secret.

Netanyahu is fond of calling for hearings and investigations of leaks, as long as the leaks came from others, especially from others in his cabinet – the top political command.

On August 5, 2014, while Israel was still fighting in Gaza – and would go on fighting there for three more weeks, incurring civilian and military casualties – the cabinet met to discuss the military campaign and was astonished to hear from Justice Minister Tzipi Livni, who had left briefly and then returned, that at that very moment Channel Two was reporting on a secret presentation about a potential conquest of Gaza that had been brought before the ministers at an earlier meeting. “There have been worse leaks,” said Netanyahu, remaining unfazed.

Neither Weinstein nor his designated successor, cabinet secretary Avichai Mendelblit, fell off their chairs either, and after High Court of Justice petitions were filed against the refusal to investigate, the debacle dragged on for a year and a quarter. All to cover for Netanyahu, even though reliable security information says that the Hamas leadership was encouraged when it saw the presentation, taking it as a sure indication that Netanyahu was not going to retake Gaza.

It’s easy to imagine what would become of an Arab MK, or any ordinary civilian, who was caught passing such information to Gaza; but when the offender is very high up in the government and operating in public, the top legal official fails to enforce the law on the grounds that “the leak was of no effective significance – the option of expanding the ground maneuver was de facto off the table.” De facto? Isn’t the attorney general supposed to oversee what is de jure? And it was the broadcast of the presentation that “took the option off the table.”

According to Weinstein’s logic, as soon as secret information is publicized, that voids the need for an investigation, because punishing offenders and deterring others and sealing breaches and encouraging free discussion at closed meetings is outweighed by the public’s right to know and freedom of the press and the public interest in disseminating information that public servants are forbidden from revealing.

There is no choice, sighs Weinstein, but to “investigate those in very senior positions, with all the implications that go along with that” – though just what implications and who will be affected was not specified. It will be a very expensive investigation, the attorney general warns the treasury, with “wiretaps, studies of communications and polygraph tests that will significantly infringe on officials’ privacy, and will require the involvement of technology experts” – none of which hindered him in the Harpaz case from approving the use of special clauses and resources against former IDF Chief of Staff Gabi Ashkenazi, whom Netanyahu feared as a potential political rival, and whom he testified against to the police as a concerned anti-leaker.

As a matter of fact, should the evidence in the Gaza-presentation case still end up being flung in Netanyahu’s face, Weinstein’s predecessor Menachem Mazuz and his High Court colleagues will be the only ones who could undo the damage done here by Weinstein.

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