Crushing liberties under the color of law

The indictment of Prime Minister Benjamin Netanyahu that is the basis for the charges on which he is standing trial brings to mind cases in the US where a person is deprived of civil liberties under the “color of law.” The term refers to the exercise of power by officials clothed with governmental authority – such as a police officer or a judge – that while superficially appearing to be within the individual’s lawful power, is actually in contravention of the law.

For nearly 25 years, Netanyahu has been the bane of the Israeli left and large swaths of the Israeli academia and media. They could not accept that Netanyahu, whom they openly disdained and who championed policies and held beliefs much different from theirs, kept winning the support of the Israeli public.

Netanyahu’s first election as prime minister in 1996 occurred shortly after the “constitutional revolution” announced by then chief justice Aharon Barak. Barak’s view of what Israeli society should look like and what its government could and could not do, closely aligned with the outlook of Israel’s political Left. They strongly supported the notion that Israel had a constitution that, for all intents and purposes, became whatever Barak and his idealogical successors said it was. Thus, the inability of the Left to defeat Netanyahu at the ballot box was somewhat mitigated by regular “constitutional” challenges that stifled legislation and policies pursued by Netanyahu.

No religious group or sect reveres and seeks to emulate its leaders more than Barak’s many followers. In government offices and bureaucracies, this encouraged a sense of entitlement among many lawyers and a feeling that they were more knowledgeable and smarter than the people to whom they reported, including elected representatives. In the offices of the attorney-general and the state attorney, it was understood that if judicial activism that stymied particular policies of Netanyahu earned high praise in Israel’s legal community, prosecutorial activism, properly directed, would also earn high marks and adulation. The influence of the legal elites in the Netanyahu investigations can be seen in the very problematic communications on the subject that both Attorney-General Avichai Mandelblit and State Attorney Shai Nitzan had with former supreme court justices, attorneys-general and state attorneys.

Over the past few years, at great expense and allocation of personnel, the State Attorney’s Office and the Israeli police zealously worked with Netanyahu’s critics in the media to find some wrongdoing on the part of Netanyahu. Under Police Commissioner Roni Alsheikh, former deputy head of the Shin Bet (Israel Security Agency), the police often resorted to tactics similar to those used by the Shin Bet. The questioning of three former assistants to Netanyahu sometimes resembled the interrogation of violent criminals and terrorists. Not only did the attorney-general ignore the fact that some of these tactics were illegal, but he also failed to address very plausible suspicions that witnesses were simply telling the police what they wanted to hear.

THE INDICTMENTS reveal prosecutorial overreaching and misconduct in each of the cases brought against Netanyahu.

For example, in Case 1000, do we really want to criminalize the making of a phone call to the US Ambassador to Israel inquiring why Arnon Milchan was denied a visa to the US, a document that is granted as a matter of routine to hundreds of thousands of Israelis each year?

In Case 2000, the indictment acknowledges that Netanyahu had no intention of enacting legislation that would limit the circulation of Yisrael Hayom, as urged by Yediot Aharonot publisher Arnon Mozes. Nevertheless, Netanyahu was indicted for stringing Mozes along.

But the most egregious prosecutorial abuse was committed in Case 4000 where Netanyahu was charged with taking a bribe in seeking some measure of favorable press coverage from the Walla news website. Walla, Bezeq and Eurocom are all controlled by Shaul Elovitch. In March of 2014, the antitrust commissioner approved the sale by Eurocom to Bezeq of shares in the Yes satellite company. The consent was subject to the further approval of the minister of communications, a ministry that was later added to Netanyahu’s portfolio. Ignoring evidence to the contrary, the indictment alleges that Netanyahu gave the final sign off for the so-called Yes-Bezeq merger in exchange for positive news stories in Walla.

These stories, that were in any event dwarfed by a much higher percentage of negative coverage in Walla about Netanyahu, is the sole basis of the headlines screamed around the world that Israel’s prime minister has been charged with bribery.

In a legal memorandum submitted to Attorney-General Mandelblit by a distinguished group of US jurists, including Alan Dershowitz, it was noted that:

“There has never been a single case in the democratic world in which a public figure was prosecuted, let alone convicted, of the “crime” of receiving a requested “bribe” of favorable publicity. Non-defamatory publicity favorable to a candidate or critical of his or her opponent has not, to our knowledge, ever generated a criminal prosecution.”

In Israel, the proposition that press coverage can constitute bribery was only attempted once before, but did not result in a conviction, The prosecutor in that case, Liat Ben Ari, is also one of the chief prosecutors in Case 4000 and vigorously pushed for a bribery charge from the outset. Typifying the prosecutorial bad faith in the Netanyahu cases, Ben Ari did not even attend the hearing given to Netanyahu’s lawyers to present their case, and instead went off on a family vacation.

It is the height of hubris and a demonstration of disdain for the separation of powers for government prosecutors to apply a unique interpretation of a statute, one never used in any other democracy, to remove from office a prime minister elected four times by a nation’s citizens. As Dershowitz argued in a follow-up interview to his memorandum, “If somebody were to introduce legislation saying that it is a crime for a politician to seek good coverage and it came for a vote, it wouldn’t get a single vote in the Knesset. And that’s the best proof that it shouldn’t be prosecuted as a crime under today’s law. If you couldn’t get the Knesset to pass a law criminalizing this, you shouldn’t be punishing it.” Criminalizing afterthe-fact interaction between a politician and the press that is legal and commonplace in every democracy is a frightening misuse of prosecutorial power.

The principal in Jewish law that courts may not impose punishment without warning has been favorably cited by Israel’s Supreme Court and the doctrine nullum crimen sine lege (no crime without law), providing that a person may only be found guilty of a crime in respect of acts which constituted a crime at the time of their commission, is universally accepted. Article 11(2) of the Universal Declaration of Human Rights, provides: ‘No one shall be held guilty of any penal offense on account of any act or omission which did not constitute a penal offense, under national or international law, at the time when it was committed.

It is not surprising when sacred principles of fairness are upended for political gain by cynical politicians and media personnel who self righteously profess to care so much about morality and ethics. Far more appalling and dangerous is that under “color of law” precisely those entrusted to protect our most fundamental liberties, the so-called legal “gatekeepers,” are enthusiastically cheering on the trampling of democratic values and piously mocking and scorning those seeking to preserve basic civil rights. Israel’s judiciary, acting through the three-judge panel hearing the Netanyahu case, will now have an opportunity to correct that extremely frightening wrong.

The writer is an attorney in Israel and New York and a member of the Likud’s Central Committee.