So What if the High Court Said ...

Ten weeks and two wars ago, in the North and the South, it appeared that the career of reserve Colonel Danny Tirza, (aka "Mr. Fence") was coming to an end. Supreme Court President Aharon Barak accused him of misleading the High Court in judicial proceedings. When he accepted an appeal presented by Palestinian neighbors of the Tzofin settlement in the northern West Bank, Barak ruled that the leading Defense Ministry representative withheld salient information from the High Court. Tirza, defined as an adviser to the Defense Ministry, "forgot" to mention that the route of the fence in that area was established in conjunction with an (unapproved!) plan to expand the settlement. He claimed that the route was planned only in line with security considerations. As a result of this revelation, the Court was forced to overturn its previous rejection of the Palestinians' appeal.

More than two weeks later, when it became apparent that the ruling failed to impress the minister of defense, Tirza's direct superior, the attorney general, sent a resolute letter to Amir Peretz. Menachem Mazuz called the affair "a severe gaffe that must not be tolerated," and noted that the "gaffe" forced the paving of an alternate route and the dismantling of the existing section of fence, with significant financial and other repercussions.

The attorney general demanded that the minister formulate clear protocol regarding the legal obligation to provide precise and comprehensive information pertaining to the security fence, to prevent "the recurrence of cases of this type in the future."

Ministry of Defense officials responded: "Professional experts have recently completed an examination of the route of the security fence, as required by Mazuz. Recommendations have been placed on the defense minister's desk, but because of his preoccupation with events which took place at Kerem Shalom, he has been unable to examine the recommendations and decide on steps to take regarding those responsible for this affair."

The Palestinians whose land was expropriated to build the fence and human rights organizations enlisted to assist them expected that before the minister found time to handle this scandal, he would meet with the adviser whose integrity was questioned by the High Court. Moreover, the attorney general demanded that he be involved in a comprehensive probe of the adviser and ordered him to desist from appearing before the High Court.

But Tirza continued business as usual. He represents the Ministry of Defense in the High Court as if nothing happened. Hard to believe but even the minister who is his superior, Amir Peretz, was surprised to hear this a few days ago. Attorney Giat Nasser of Jerusalem maintains that Tirza not only continues to appear before the High Court but says in a letter to the state prosecutor that the senior clerk continues to deceive the High Court. In a late-July petition by Palestinian residents of Gush Etzion regarding the route of the separation fence, Nasser grappled with the state's claim that the fence route was vital to the security of cars passing between Gush Etzion and Jerusalem. He maintained that he was aware of a plan to establish an alternate road to meet the needs of Gush Etzion residents. Tirza responded that the alternate road, Highway 39, was impractical and that the plan had not been presented for approval. Nasser remembered the Tzofin ruling and decided to investigate the progress of the plan. The following are his findings as presented in a letter to the State Prosecutor:

This is an amendment to the National Road Plan (NRP) located between the Emek Haela and Jerusalem. The plan was approved by the government on January, 25, 2001 (Decision No. 2861). After approval, a detailed plan entitled NRP 3/29/A was formulated. It was published on November 11, 2004 (Publications Volume 5338, page 306) and published in daily newspapers to permit public opposition. On November 1, last year, the National Planning and Building Council approved the plan. Nasser acquired an aerial photograph which outlines the route of the approved road.

Nasser wrote to the state prosecutor, "Superfluous words are unnecessary to define the gravity of this deception. It is not possible to return to business as usual with no account of this matter and implementation of all actions necessary in this case. The picture provided to the court was not merely incomplete - a completely misleading picture was presented -in an expanded hearing before seven justices." The attorney demands that the state prosecutor inform the High Court of this deception and amend the misinformation. In addition, he demands an apology from Tirza, and that his superiors distance him once and for all from the court.

The Ministry of Defense responds: "There are no grounds for these claims beyond a hurtful attempt to question the integrity of the defense establishment and its representatives. Detailed response will be provided in the context of legal deliberations between the State and the petitioners."

Lindenstrauss takes action

State Comptroller Micha Lindenstrauss is not waiting for politicians to decide what type of committee of inquiry to appoint, if at all. If it is up to him, a preliminary report on the war in the North may be complete before the High Holidays in October. In fact, most of the work is finished. Innumerable front-line and home-front failings were discovered in budget planning and the coordination of the information campaign. Everything is documented on hundreds, if not thousands, of pages in scathing reports - some widely published and some exposed only to the eyes of select ministers and MKs who are members of a special subcommittee of the State Audit Affairs Committee.

It is safe to assume that when the state comptroller writes his report of the war, he will have a number of things to say about ministers and MKs who read (or did not bother to read) protracted chapters published in recent years regarding the state of the IDF and who failed to utter a loud cry of protest. It would be interesting to know what the comptroller would say about explanations, like that of Haim Ramon, the former chairman of the ministerial audit affairs committee, maintaining that the lack of deliberations pertaining to the state of protection and shelter, as described in the State Comptroller's Report of August, 2005, were the result of a lack of time.

Clause 16 of the State Comptroller's Law states that, "The Prime Minister will present to the State Comptroller, within 10 weeks of the day that he receives the report, in full or in part, his comments regarding the report, in matters that he deems necessary; the responses of bodies examined in the report, transferred to him; detailed comments regarding previous reports that he has yet to address, and an account of government decisions in response to the report and their implementation."

Like anyone who read the August report, Ramon was aware that the comptroller advised the urgent replacement of hundreds of thousands of flak jackets and hundreds of thousands of helmets, "due to their inability to meet IDF demands." The minister could not have failed to notice the report's account of shortcomings in protection of armored combat vehicles, cancellation of the plan to equip Merkava tanks with special protection, problems of shelter and the lack of preparation for evacuation of civilians. Moreover, Ramon was made aware of a series of grave deficiencies that were not exposed to the public because of security considerations.

But Ramon chose to first address the also inherently significant problem of political appointments presented in another report by the comptroller. In response to a report regarding the defense establishment, Ramon initiated deliberations of two other clauses (as he wrote in a response on August 22): "the process of setting a framework for the defense budget" and "integration of technology in checkpoints and obstacles at the seam line."

Ramon's media adviser's response to the question of why Ramon did not initiate deliberations pertaining to protection and shelter: "Handling of political appointments was implemented in accordance with the State Comptroller's Report and in response to a request by the State Prosecutor and the Civil Service Commissioner, who requested a reorganization of all issues pertaining to public trust. The report regarding protection and shelter arrived in late August and there were less than three months, including holidays, between that and Ramon's having left [the position of chairman of the committee - A.E.]."