What is Missing from the Court's Decision on the MAG Leak Investigation
The High Court handed down a decision allowing the Minister of Justice choose the civil servant to oversee the investigation into the Sde Teiman video leak affair in the Attorney General's stead. This sets a concerning precedent and ignores the current political reality in Israel.
Photos by Yonatan Sindel/FLASH90, Oren Ben Hakoon/POOL
The words “exceptional,” “extreme,” “unprecedented,” “complex,” and “rare” appear dozens of times in the judgment written by Justices Wilner, Stein, and Canfy-Steinitz. In their view, the event in which senior officials of the Military Advocate General’s Corps are suspected, headed by the former Military Advocate General herself, is so extraordinary that it justifies deviating from the rule that there is no place for political intervention, direct or indirect, in the work of law-enforcement authorities.
Let us recall the exceptional (indeed) matter at hand: the most senior lawyer in the IDF, Military Advocate General Yifat Tomer-Yerushlami, was recently arrested after admitting to being the source of a leaked video of alleged abuse of Palestinian detainees at the Sde Teiman detention facility.
Serious as this event is, it may not be quite as exceptional and unprecedented as the decision handed down from the High Court this week: the recognition, for the first time, of the idea that a political actor (in this case, the Minister of Justice) may assign the role of overseeing an investigation to a different civil servant.
The Court hearing took place after the Attorney General, and other senior officials in the prosecution, participated in consultations regarding how to examine the leak affair. The Attorney General made clear that she is disqualified from dealing with the case, since in the course of the investigation her testimony, and the testimony of additional senior officials, may be required. The question the justices placed at the center of the hearing, then, was the manner in which the person who will accompany and supervise the investigation in her stead should be appointed.
The appointment of Judge (ret.) Asher Kula by Minister of Justice Yariv Levin was struck down in the Court's decision. The law did not allow Judge Kula to assume the role, due to the categorical prohibition on the Ombudsman for Complaints Against Judges from engaging in any other position or occupation.
But the Court did make a decision to authorize the Minister of Justice to choose the civil servant to whom the Attorney General’s authority will be transferred – such a decision is a precedent-setting. It seems the justices are well aware of this. They take care to remind the reader repeatedly of the fundamental rule that “the Attorney General’s powers to supervise a concrete criminal investigation must not be transferred outside the Office of the Attorney General or the State Attorney’s Office.”
Nonetheless, due to the exceptional circumstances, the justices allow a departure from this foundational principle. Their efforts to explain that this is an extreme and exceptional case, and therefore that the Minister’s ability to assume this authority must be severely constrained, are highly conspicuous: it may be transferred only in extreme circumstances;
the transfer of authority will be subject to limitations, including that it may be transferred only to a senior civil servant, a clear legal professional, without political affiliation, and only at the investigative stage.
But none of this diminishes the creation of the precedent: opening the door, for the first time in Israel, to political intervention in criminal investigations. And it must be said clearly: the disqualification of the entire prosecution, with all its senior officials, is itself unprecedented and inconceivable. True, the involvement of many senior officials creates a broad conflict of interest. But it is a major leap from that to an absolute “institutional disqualification” of the entire prosecution.
And the judgment is perhaps most striking not for what it contains, but for what it lacks. It contains no discussion of the broader picture. Of the reality around us.
There is no reference to the current government's systemic undermining of the Attorney General. To the fact that Minister Levin does not recognize the Attorney General’s legal opinions and openly acts contrary to them. There is no reference to his refusal to cooperate with her, in violation of a High Court injunction preventing her dismissal or any change to the rules governing her work or her status.
As though the affair of the Military Advocate General stands alone, in a well-functioning democratic state, rather than in the reality we are in, in the midst of a democratic backslide.
The omission of the broader campaign against democratic institutions, against the media, against gatekeepers, and especially against the Attorney General; the complete silence in the face of the larger story that warns “how democracies die”—all of this stands out more than any of the judgment’s 44 pages.
And still, the story does not end here. A request has been submitted for an additional hearing before an expanded panel of justices. The significance of this ruling, and what comes next, may still lie ahead.
This article was published in the Times of Israel
