Jerusalem Post - January 31, 2005


Evelyn Gordon

Last week, the High Court of Justice abolished freedom of speech for senior government officials and replaced it with an Orwellian Thought Police. The justices declared themselves empowered to oust or deny promotion to any official whose public statements fail to meet their standards of morality and good taste. The case began with the Israel Air Force's assassination of senior Hamas terrorist Salah Shehadeh in 2002. The operation had been aborted repeatedly for fear of harming civilians, but this time intelligence reported no civilians present in Shehadeh's building, and tests had indicated that a one-ton bomb would not damage surrounding buildings. However, both assumptions proved wrong: Civilians were present in Shehadeh's building, and the bomb seriously damaged the shoddily constructed neighboring buildings. Altogether, 15 civilians were killed and over 150 injured. In response, 31 "authors and intellectuals, academic researchers of the first rank, former senior civil servants, reserve pilots and members of nongovernmental organizations" (to quote the ruling) asked the court to order IAF Commander Dan Halutz, who authorized the bombing, investigated for "war crimes."

In March 2004, while this petition was still pending (as it is even today), Halutz was promoted to deputy chief of staff of the Israel Defense Forces. The 31 therefore asked the court to suspend his promotion until it rules on the original petition, arguing that a man suspected of war crimes (albeit only by themselves) does not merit promotion.

The petition also argued, however, that Halutz's statements in an August 2003 newspaper interview showed him morally unfit for high command, by "proving" that the civilian casualties were not an error, but the result of "a 'successful' operation planned and executed according to parameters that stem from the respondent's moral worldview."

For instance, Halutz asserted that he "sleeps well at night" despite regretting the civilian deaths -- since great efforts were made to avoid them, and zero human error is an impossible expectation.

He also said that an assassination might be justified even if civilian casualties were certain, if this were the only way to prevent an attack that would kill many more innocent people.

JUSTICES EDMOND Levy, Miriam Naor and Jonathan Adiel quickly dispensed with the petitioners' first argument, saying that since the state prosecution saw no grounds for a criminal investigation of Halutz, and the court has yet to rule otherwise, Halutz's promotion was reasonable.

However, they rejected the state's contention that Halutz's alleged "war crimes" were the main pretext for the petition, with the interview being relevant only to demonstrate his alleged criminal intent. Instead, they decided that the interview on its own constituted possible grounds for suspending the appointment.

They therefore demanded that Halutz submit a written clarification of his "moral stance" regarding his earlier statements, and eventually devoted much of the verdict to this issue.

Levy summed up the court's position as follows: "One must regret the tone of the interview, as well as some of the things that were said, which would have been better unsaid."

Nevertheless, "other statements made in the same interview, and the clarifications that [Halutz] supplied in the context of this petition do not enable us to sufficiently establish a moral character that would obligate Halutz's suspension from his position at this time."

In other words, the justices could have ousted Halutz merely because they deemed his statements proof of poor "moral character"; this particular interview simply provided insufficient evidence.

In explaining this conclusion, Levy offered a remarkable portrait of the court's favorite step-by-step method for expanding its powers. It all began, he said, with Knesset legislation that barred people convicted of crimes involving moral turpitude from certain positions.

In 1992, the court, on its own initiative, extended this ban to other public positions. A year later, it also extended the ban to people under indictment -- which had no basis in law whatsoever. A few years after that, it asserted the right to bar people under police investigation from office, even though they might never be indicted.

Next, it decided that it could deny office even to people against whom a criminal investigation had been closed without charges, should it deem their behavior sufficiently improper.

Then, in Halutz's case, it went further still, asserting the right to bar the appointment even of someone whom the police and prosecution found no grounds for investigating at all.

"We cannot rule out the possibility that [a person's] behavior even if it does not constitute a crime, could be so extremely grave that it would be extremely unreasonable to enable him to remain in office," explained Levy, quoting an earlier verdict.

From there it was only a short step to the ultimate conclusion: that even statements in an interview could suffice for the court to bar someone from public office.

For a person to be forced out of office over something he said is hardly unheard of in the democratic world. Only in Israel, however, has the court asserted the right to determine whether a given statement renders someone unfit for office.

In other countries, this decision is left to the public (expressing its views through the normal tools of democratic pressure), or to its elected representatives.

Needless to say, the court usurped this prerogative without any authorization in law. In the process, it abrogated a fundamental democratic freedom: freedom of speech. And it did so in order to impose moral standards rejected by the vast majority of Israelis -- who raised no outcry in this case precisely because they backed Halutz's position.

Israel has allowed its highest court to expand its powers unchecked for far too long. One can only hope that this latest outrage will finally spur the Knesset to impose some badly needed restraints on the court's behavior.

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