“There would seem to be less and less reason for the Israeli people to bother electing a legislature and executive; the attorney general, with the backing of the Supreme Court can decide almost everything for them.”—Robert H. Bork, in Coercing Virtue.

This is the last section of a three-part series on the grave dysfunctionality of the Israeli law enforcement apparatus. Part I focused on the disregard of the law by the courts; Part II on the disregard of evidence. Part III deals with inventing infractions in order to indict defendants for actions previously considered un-indictable.

A choreographed coup with the law as a prop?

Of course, no discussion of the ailments afflicting Israel’s legal establishment can be undertaken without referring to the trial of former Prime Minister Benjamin Netanyahu. For it embodies virtually every procedural and substantive lacuna conceivable—from invented infractions to selective prosecution, from extortion of witnesses to illicit leaks detrimental to the defendant.

Indeed, it is difficult for anyone who is not a devout Bibi-phobe to avoid concluding that the entire process of investigation and indictment is little more than a carefully (read “cunningly”) choreographed coup using (read “misusing”) the law as a prop. In fact, questions have even been raised regarding the legality of the very decision to initiate the investigation against Netanyahu.

In this regard, Clause 17 (a) of Basic Law: The Government stipulates that: “Criminal proceedings shall not be commenced against the Prime Minister save with the agreement of the Attorney General.” Without such authorization, any investigation against a prime minister has no legal basis.

When Netanyahu’s legal team demanded to see confirmation that such an agreement had indeed been made, the prosecution was unable to produce any corroborating document, claiming that the law did not require such authorization to be given in writing and was, in fact, given orally and recorded in the prosecution’s internal correspondence.

It is true, of course, that the law does not explicitly call for written authorization by the attorney general. But in the case of an unprecedented and sensational investigation involving the longest-serving prime minister in the nation’s history—and easily the most popular politician in the country—it is hardly unreasonable to expect that the authorization of such a momentous decision would be carefully documented.

The fact that this was not the case, together with the prosecution’s marked reluctance to produce any evidence that such authorization was given, cannot but help generate grave skepticism as to the authenticity of the charges brought against Netanyahu and the motivation behind them.

Inventing infractions

As the trial unfolds, with every additional hearing, the picture becomes increasingly clear. The “creative” legal precedents that allowed for contrived, novel allegations to be made against the prime minister, the undeniable discriminatory prosecution and selective enforcement—together with the persistent and perturbing testimonies of interrogatory excesses and extortion of witnesses—as well as illegal and tendentious leaks to the media, all combine to form a disturbing mosaic of abuse of power, designed to exploit the law to achieve what could not be accomplished at the ballot box: The removal of Benjamin Netanyahu from office.

I have repeatedly written about the flagrant abuse of the legal system and how the unrelenting drive to bring an indictment—any indictment—against Netanyahu has long exceeded the bounds of reasoned and reasonable law enforcement. (See, for example: here; here, here; here; here and here.)

Accordingly, I will gloss over both the discussion of much material and of many arguments, and focus mainly on a few more recent developments that have come to light since the trial began.

But no discussion of the Bibi-phobic legal assault is complete (or as revealing) as the bald and brazen admission of State Prosecutor Shai Nitzan, who unabashedly conceded that the bribery charges against Netanyahu were without any legal precedent—and then, contradicting himself, claimed that  he did not “think that this decision involves a widening of the charge of bribery or breach of trust.” After all, if a charge is unprecedented (i.e. including what was previously excluded), how can it not involve “widening” the definition of the infraction???

But more to the point, if charges against Netanyahu were, by the prosecution’s own admission, “unprecedented,” obviously up until then, his actions were not considered criminal. Thus, in order to indict him, new charges had to be concocted—so that what was previously not illegal, now was!

Invented infractions, anybody?

“A stunning setback for the prosecution”

This then, is probably the reason that one of the key witnesses for the prosecution, former Netanyahu adviser Nir Hefetz, testified in what The Jerusalem Post, hardly a pro-Bibi outlet, described as “a stunning setback for the prosecution” that the former prime minister did not believe that he had committed an act of “bribery”—thus indicating that he “had no criminal intent.”

Hefetz told the court that “treating positive coverage as a bribe is delusional,” insisting, “Neither I nor Netanyahu had any awareness of anything criminal.”

Hefetz expressed his misgiving regarding the bribery charges against Netanyahu: “Both the media and law enforcement agencies had extremely high motivation to get an indictment. To this day, I believe that Case 4000 would never have come about if Netanyahu had not been prime minister.” (See also here. & here ). According to media watchdog The 7th Eye, Netanyahu’s former adviser felt that the accusations of bribery in Case 4000 (the “Bezeq/Walla affair”) were in fact “trumped-up charges” without any real basis, and that the authorities handled the case more like a “persecution than an investigation.”

Hefetz also attested to the treatment to which he was submitted during his police interrogation, before agreeing to become a state witness and testify against Netanyahu. He described the pressure as “draconian,” “horrific” and “monstrous,” recounting how police interrogators threatened to destroy his relationship with his family if he did not testify against his former boss.

“The threat was clear,” he stated: “If I did not give a version [they were looking for], they would destroy my family.” He was consigned to a cell with a flea-infested mattress and was denied timely medical treatment when he collapsed from the stress.

In a stunning admission, the prosecution claimed it has accompanied and supervised Hefetz’s interrogations. Something to worry about???

“How can we know when what you say is true or false?

Another key witness, Ilan Yeshua, also proved to be of questionable credibility.

The former CEO of the Walla! channel—which was controlled by Israeli businessman Shaul Elovitch, a co-defendant in the Netanyahu trail—Yeshua’s allegedly favorable coverage of the former prime minister comprised the bribery for which he was indicted.

Yeshua, the first witness to take the stand, testified for a full 33 court sessions over a six-month period. Under questioning from the defense, it turned out that the prosecution attempted to conceal evidence showing that numerous other prominent politicians (past and present) have had close contact with him—and contradicted his statement to the court that he had not intervened on their behalf regarding publications on the Walla! site.

The list included figures such as Isaac Herzog, Naftali Bennett, Miri Regev, Ofir Akunis, Yinon Magal, Moshe Kahlon, Avigdor Lieberman and Dalia Itzik. Clearly, this severely undermined the prosecution’s allegations that the response of Walla! had been so “unusually forthcoming” towards Netanyahu that it warranted indictment.

Indeed, it seems that the judges had a rather dim view of Yeshua as a reliable witness. Thus, one of them, with evident frustration, stated he had difficulty in separating out truth from untruth in Yeshua’s testimony, even to the point of asking: “Perhaps you could give us a sign so we can know what is true and what is not?”

In view of Yeshua’s decidedly shaky testimony, one legal correspondent posed the following irksome question: “When a major witness for the prosecution falls apart on the witness stand, along with the prosecution’s basic thesis, the question arises of whether the judges will find the courage to admit that the case before them was stitched together carelessly and continues to fray.”

Scant regard for the law

Thus, a grim picture emerges.

An effective and equitable legal system is meant to be the bulkhead that separates civilized society from Hobbesian man-eats-man brutality. With eroding public trust and faith in law enforcement and its ability to administer justice fairly, this role is being severely undermined in Israel.

For the layperson, it appears—not infrequently—that legal proceedings are being carried out with scant regard for the law. Indeed, in some cases, the law is blatantly disregarded; in others, factual evidence is ignored; in yet others, infractions are invented to fabricate charges. Sadly, all cases have been approved by the courts.

There is just so long that a democratic society can endure this.

Martin Sherman (www.martinsherman.org) is the founder and executive director of the Israel Institute for Strategic Studies. (www.strategic-israel.org).

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