Iniquitous indictments for invented infractions

Like every mortal on the planet, Benjamin Netanyahu is not irreplaceable or unblemished, though his record indicates that he is by far the most capable candidate to lead Israel in these challenging times.

Israeli Prime Minister Benjamin Netanyahu gives a press conference at the Orient Hotel in Jerusalem on Jan. 1, 2020. Photo by Yonatan Sindel/Flash90.
Israeli Prime Minister Benjamin Netanyahu gives a press conference at the Orient Hotel in Jerusalem on Jan. 1, 2020. Photo by Yonatan Sindel/Flash90.
Martin Sherman
Martin Sherman
Martin Sherman spent seven years in operational capacities in the Israeli defense establishment. He is the founder of the Israel Institute for Strategic Studies (IISS), a member of the Habithonistim-Israel Defense & Security Forum (IDSF) research team, and a participant in the Israel Victory Project.

Israel: “A land that devours its inhabitants.” — Numbers 13:32

I would have preferred to have devoted this week’s column to some other topic, such as the ascendance of blatant anti-Semitism around the globe or the heightening tensions between the United States and Iran, or the emerging “understanding” with Hamas for “calm” in Gaza. After all, in the recent past, I have focused several times on the topic of the pernicious pursuit and persecution of Benjamin Netanyahu by his political antagonists in a determined (almost desperate) effort to unseat him by means other than the ballot box, which infuriatingly has eluded them for over a decade (see here, here,  here, here, here and, most recently, here).

But Netanyahu’s dramatic 10-minute address on Jan. 1, in which he announced his intention to request parliamentary immunity from the charges to be brought against him for alleged breach of trust and bribery, is sufficiently significant to put other matters on the backburner, at least temporarily.

As I have set out, in considerable detail, my own grave reservations as to the indictments against Netanyahu, which largely coincide with those of an impressive array of internationally renowned legal experts, I will attempt to avoid restating them here, while urging readers to peruse them once again by means of the hyperlinks provided in the opening paragraph of this column.

Instead, I will focus on Netanyahu’s assertions as to the injustice of the charges brought against him and the inherent justice of this request for immunity.

In the opening two minutes of his address, he briefly enumerated the extraordinary achievements that Israel had attained in the last decade under his premiership and outlined future challenges facing the country that under his leadership would be successfully met.

Halfway into the third minute, he turned to the allegations against him, pointing out that the whole rationale behind the idea of granting elected parliamentarians immunity was to protect them from biased politically motivated legal action. In this regard, Netanyahu underscored that he had been true to his pledge not to advance new legislation to provide him immunity, but that his request was based entirely on the existing law.

The rationale for immunity

He explained: The [existing] Immunity Law is meant to protect incumbent representatives, elected by the public,  from trumped-up charges, and from politically motivated indictments, which are intended to undermine the will of the people. This law is meant to ensure that people’s representatives can serve the people according to the will of the people.”

He paused and then added, with emphasis: “I said the will of the people, not the will of the bureaucrats,” promising that once he had completed his stint as prime minister, he “would appear in court to shatter the baseless allegations against me.

Netanyahu then invoked the words of President Reuven Rivlin, who has had an overtly contentious relationship with Netanyahu and who, arguably because of that relationship, has become the epitome of moderation and respectability for the center-left in Israel.

Citing from an address by Rivlin at a recent conference, Netanyahu read out: “The legislators created far-reaching immunity in order to protect representatives elected by the public. … If the prosecutors and investigative authorities decided, because of political reasons, to neutralize a Member of Knesset, they could open an investigation against him—and things like that have happened in the past. People were subjected to criminal investigations and indictments were handed down against them—and there is grave concern that this was done by the authorities with the intention of preventing them from serving as ministers … .

Rivlin: Politically biased investigations launched in past

Significantly, Rivlin articulated very similar views long before the prospect of any indictments against Netanyahu emerged.

Indeed, interviewed while still in his former capacity of Knesset Speaker, he expressed the identical rationale for parliamentary immunity for elected legislators: “We must remember what the logic behind [the idea] of immunity is; what the substantive reason was, which brought the founders of the Knesset … to create over-arching immunity, immunity that is unassailable, for each and every Knesset Member. [It was] the desire to protect publicly elected representatives from the ability of the authorities to bully and intimidate them.”

He explained: “For if someone is elected to the Knesset and an investigation is opened against him, despite the fact that there are no grounds to do so, despite the fact that the suspicions against him are so remote, yet the Prosecutor’s Office or the investigative bodies decide that there is some political need to neutralize him, they will initiate an investigation against him.”

Rivlin declared solemnly: “And things like that have happened here in the State of Israel! Investigations were launched against Knesset Members … ”

Here the interviewer interjected: “Despite the fact that there were no ]incriminating] facts or evidence?”

Rivlin responded emphatically: “Indeed! Of course! But beyond that, [unsubstantiated] indictments were handed down or alleged suspects were subjected to criminal investigation under caution in cases where there was grave concern that the authorities did that with the intention of preventing them from becoming government ministers …

Recriminations resonate

Basing himself on Rivlin’s arguments, Netanyahu declared: “Sadly, this is what happened in my case. Trumped-up charges, selective enforcement, extorting state witnesses with threats, witness tampering, a flood of illegal and biased leaks and continual [media] brainwashing to incite against me, and to conduct a kangaroo court by manipulating public opinion.”

I must confess that Netanyahu’s shrill recriminations regarding the odds stacked against him and the motivations of the forces ranged against him resonate strongly with me.

As I have pointed out previously (see, for example, here), to anyone but a rabid “Bibiphobe,” they appear transparently contrived—indeed, a thinly veiled attempt at a legalistic coup, creating a deep sense of unease that Israel’s legal establishment is being exploited for patent political ends—i.e., that unelected elites are using their positions of influence and authority to bring about political outcomes that do not correspond with, even contradict, the election results.

This, of course, describes exactly the circumstances for which parliamentary immunity was created and in which invoking it is justified.

Indeed, there are plausible reports validating most, if not all, of Netanyahu’s claims of selective prosecutions, extortion of state witnesses and attempted witness tampering (see, for example, here, here, here, here, here and here). It seems that the police investigation was so flawed and “overzealous” that it drew sharp condemnation from the head of the Israel Bar Association, prompting the Attorney General Avichai Mandelblit to order a probe into how the police had conducted the questioning of witnesses. However, it appears that a gag order was placed on the findings of the probe, prompting yet further censure and misgivings from the bar association head.

The accumulated picture from all these reports of investigative malfeasance seems to fit exactly the scenario Rivlin specified to justify invoking parliamentary immunity.

But it seems that not only the practical conduct of the investigation and the motivations behind it are disturbingly suspect, but so are the very conceptual foundations on which it is founded.

This was powerfully conveyed by prominent legal expert, Professor Alan Dershowitz in  a piece written almost exactly a year ago, in the far-left daily, Haaretz, titled “Voters, Not the Police or the Courts, Should Decide Netanyahu’s Future.”

According to Dershowitz: “The issue at the center of these investigations seems trivial against the background of the existential crises Israel is facing. … The first probe, also known as Case 1000, involves gifts of cigars and champagne Netanyahu received from close friends. … I strongly believe that the appropriate criteria for criminal prosecution have not been met in the cigar and champagne case against Netanyahu. … The other investigations (dubbed 2000 and 4000) pose even greater dangers to democratic governance and civil liberties. … In both cases, the prime minister is essentially being investigated for allegedly trying to push the media – with long histories of attacking him and his family—to be fairer.”

He continued: “ … what we are left with is an exploration of motives … [which] are not the kinds of questions that prosecutors and police should be empowered to ask elected officials and media moguls as a part of a criminal investigation. … The relationship between politics and the media—and between politicians and publishers—is too nuanced, subtle and complex to be subject to the heavy hand of criminal law … police and prosecutors should not intrude on this complex, messy and nuanced relationship between politics and the media, except in cases of clear and unambiguous financial corruption well beyond what is alleged in the current cases … to criminalize these political differences is to endanger democracy and freedom of the press.”

Flimsy case vs. impressive achievements

I disagree with Alan Dershowitz on much regarding Israel, but I identify almost completely with his analysis of the indictments filed against Netanyahu. Not only do the substance of the indictments appear “trivial” compared to the challenges Israel faces, but also seem trivial against the background of the giant strides with which Israel has progressed under Netanyahu.

As readers of this column will recall, I have had many criticisms of Netanyahu in the past. Indeed, there have been several important things that he did not do, but should have; and things that he did do, but should not have.

As for the former, he has not dealt with the lawlessness of the Bedouin in the South, with the illegal Arab construction across the country; he has not adequately beefed up Israel’s public diplomacy, nor has he sufficiently reformed Israel’s legal establishment, which is now attempting to remove him from office.

With regard to the latter, he unadvisedly froze Jewish construction in Judea and Samaria, released thousands of convicted terrorists and undertook the unfortunate attempt at rapprochement with Recep Tayyip Erdoğan’s Turkey, including paying humiliating compensation to the casualties on the Mavi Marmara, injured when trying to disembowel Israeli commandos enforcing a legal quarantine of Gaza.

Like every mortal on the planet, Netanyahu is not irreplaceable or unblemished, though his record indicates that he is by far the most capable candidate to lead Israel in these challenging times.

A transformative leader

Despite any criticism of him, it is undeniable that in many ways, he has been a truly transformative leader.

On his watch, Israel joined the prestigious group of OECD countries and has become a  major energy exporter—developments almost inconceivable before his incumbency.

Under his stewardship, Israel has become one of the best performing economies in the world   with GDP per capita breaching the $40,000 mark for the first time ever in 2017, up sharply by almost 45 percent since 2009, when he was first re-elected after losing power in 1999.

He has drastically reduced Palestinian terror from the horrific levels he “inherited” from the Rabin-Peres era ,  and despite occasional flare-ups, he has largely managed to contain it to hardly perceptible proportions — certainly nowhere near the grisly scale that prevailed under his predecessors.

In terms of foreign policy, he has produced remarkable success. He managed to wait out the inclement incumbency of former President Barack Obama, emerging largely unscathed, despite the undisguised antipathy between the two men.

His views on Iran and its perilous nuclear ambitions have been embraced by the Trump administration. He has managed to initiate far-reaching changes in Mideast politics, with increasingly amicable — albeit, as yet, only semi-overt — relations with important Arab states, inconceivable several years ago, while sidelining  ( or significantly reducing )  the centrality of the intractable “Palestinian problem.”

He has overseen Israel’s “pivot” eastwards, and burgeoning relationships with the ascendant economies of India and China, increasingly offsetting Israel’s commercial dependence on the oft less-than-benign European Union. He also has scored remarkable diplomatic successes in Africa and South America.

Moreover, notwithstanding difficulties with Western European countries, he has fostered increasingly warm relations and understanding with those in Central and Eastern Europe, driving a wedge into the otherwise widespread European animus towards Israel.

‘A country that devours its inhabitants?’

Yet despite his remarkable success, Netanyahu has been ceaselessly assailed by his political adversaries, ever since he was first elected in 1996. Indeed, it is perhaps his very success that has generated such raw rancor against him. Thus, despairing of removing him via the ballot box, his political rivals and adversarial civil society elites have had to turn to the law to do so, mounting what Netanyahu has accurately dubbed a legalistic coup.

It is an initiative that is likely to backfire. For one thing is beyond doubt: No good result can come out of these indictments.

If Netanyahu is found guilty, roughly half the Israeli public will feel that there has been a gross miscarriage of justice, and the already tenuous public trust in Israel’s arms of law and order with be undermined even further.

On the other hand, if he is acquitted, roughly half (the other half) of the Israeli public will feel that there has been a gross miscarriage of justice, and the already tenuous faith in Israel’s system of law and order will be eroded even further.

Among the biggest losers will be those who launched this ill-considered initiative in the first place. The mistrust it will generate in them will certainly be well-merited.

Martin Sherman is the founder and executive director of the Israel Institute for Strategic Studies.

The opinions and facts presented in this article are those of the author, and neither JNS nor its partners assume any responsibility for them.
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