An in-depth examination is called for in the wake of the exposure of the police’s illegal use of NSO Group’s Pegasus spyware and possibly other spyware. Outgoing Attorney General Avichai Mendelblit did well to form a team to look into the details, headed by Deputy Attorney General for Criminal Affairs Amit Merari.
The team would do well to look into not only individual cases where the police used spyware illegally or in excess of court authorization, but also into whether there has been an organizational culture of silence and concealment regarding the use of espionage capabilities. Another thing that needs probing is the culture of denial prevalent in the police.
Given the gravity of harm to civil rights, it would also be appropriate to involve agencies with the power to investigate the police. Mendelblit refrained from doing so, but the proper way to bring police investigators and other police personnel who crossed the line to justice is to put them on trial.
Bringing the investigators to justice should not automatically void criminal proceedings against convicted felons, or defendants currently on trial. The approach that rules out any evidence obtained illegally, and also rules out any evidence or testimony obtained thanks to the forbidden evidence, known as the “fruit of the poisonous tree” doctrine – has been rejected conclusively by the Israeli Supreme Court. This extreme doctrine may be the law of the land in the United States, but is not common elsewhere around the world.
The Israeli Supreme Court, in what became known as the “Issacharov rule,” adopted a more balanced approach. The court, in discussing a motion to strike illegally obtained evidence, is required to weigh the illegality and harm to the defendant’s rights and other interests, such as the public’s interest in seeing justice done. Not all such evidence is ruled out.
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Calls to cancel Benjamin Netanyahu’s trial are unfounded. First, the spyware was not used against Netanyahu himself, so his rights were not harmed. Second, according to what is now known, the spyware was used against witnesses in the Netanyahu trial, but the Supreme Court has yet to determine whether harm to the rights of witnesses – as opposed to harm to the rights of the defendant – justifies the disqualification of evidence. Third, the primary evidence the prosecution seeks to present at Netanyahu’s trial was not obtained by spyware. Fourth, it seems that the data obtained in this manner from witnesses in the Netanyahu trial was never even presented to the investigating team but remained in the hands of the technical team.
The new Bibi-ist line of defense, demanding an immediate mistrial, is utterly unreasonable. Netanyahu’s trial must continue as scheduled, and at the same time what Israel’s police is doing with spyware needs to be thoroughly investigated.
The above article is Haaretz's lead editorial, as published in the Hebrew and English newspapers in Israel.