Thursday, June 17, 2004

Here is what I intend to be 'my' second-last posting on the Appel-Sharon-Mazuz-Arbel issue. It will consist of a quote, an op-ed and the editorial commentary from today's Ha'Aretz, all dealing with the role and behavior of the Attorney general, as well as with the difference between legality and morality. Normally I put only hyperlinks to certain articles here, but because after a few weeks links to Ha'Aretz only lead to the paper's homepage and because some very basic things are said in the piece by professor Segal and in the editorial, I decided to quote both of them in full. First, in an article about the petition filed by the Movement for Quality Government against Mazuz' decision to close the Sharons' files questions are raised about the way in which the AG basically legitimizes possible corruption: "The Movement for Quality Government petition argued that, whereas the normal standard for submitting an indictment is a "reasonable chance to convict," Mazuz, though he claimed to be using this standard, in actuality used the standard of "almost certain conviction." He thereby exceeded his authority and "effectively turned himself from the head of the prosecution into a court," it said. "The attorney general's decision is full of assumptions that are unacceptable in a democratic society, which aspires to draw a line between capital and government," the petition continued. "This line is meant to prevent the modern form of corruption, which is based on politicians' dependence on tycoons for their election and political survival, on one hand, and on the tycoons' use of politicians to advance their businesses, on the other." Mazuz, the petition charged, "legitimized this type of corruption by his decision."" Here is one professional view on the matter. AG versus the prosecution By Ze'ev Segal Attorney General Menachem Mazuz has decided to close the case against Prime Minister Ariel Sharon and his son Gilad. That decision is within his authority and his rights. He did so because, in his assessment, a "sufficient infrastructure of evidence" for an indictment did not exist. He said he reached this conclusion using the test of whether there was "a reasonable chance to convict," and from a belief that "there is only one law for both the prime minister and the ordinary man." The attorney general proved to be a legal innovator in the way he reached his decision not to indict. The innovation lay not in the fact that his conclusion differed from that of a senior team headed by former state prosecutor Edna Arbel, which recommended indicting the prime minister. That has happened before. The previous attorney general, Elyakim Rubinstein, decided not to indict former prime minister Benjamin Netanyahu in the Amedi affair, despite Arbel's contrary opinion, but this did not create any "earthquakes" of the sort that are being felt now. Mazuz's legal innovation lay in the fact that he appointed a new team to evaluate the evidence - something that has never before occurred in the prosecution. From that moment on it should have been clear that something had happened that would affect the way decisions are made about indicting a prime minister or any other senior official in the future. The minute the conclusions of a skilled and experienced team are not accepted, a new team will be appointed in its stead. The mythological Buzaglo, who can be indicted by any police prosecutor, can only sigh as he reads the attorney general's declaration that "all citizens are equal before the law." The attorney general's lack of faith in the prosecution was not just expressed in his decision to set up his own team. It also emerged from many pages of his detailed and reasoned decision regarding Sharon. This decision contained a legal-factual analysis and an interpretation of the facts about which the last legal word has not yet been spoken. Yet it seems that never before has a document written and signed by the head of Israel's prosecution, the attorney general, portrayed the skilled team subordinate to him as an empty vessel. The attorney general's remarks about "evidentiary material that suffered from weakness" with regard to both the factual and the psychological elements of the crime, and that it "did not add up to a structure capable of standing on its own," essentially assigned a grade of "unsatisfactory" to the prosecutors whose job it was to assess what jurists call "the sufficiency of the evidence." The attorney general treated the prosecution's opinion as an "allegation" that Sharon had accepted a bribe. This allegation, in his opinion, "is based on a web of generalizations and indirect and circumstantial evidence." This finding is a direct slap at work in which great effort was invested. Not only is such a style not the norm among civil servants who are supposed to work together in enforcing the rule of law, it is also not to be found in criticisms by external bodies such as the State Comptroller's Office or the courts, which are always careful of an agency's dignity even when they cancel its decisions. High Court of Justice rulings that have overturned attorney generals' directives or their decisions not to indict someone due to lack of "public interest" have never leveled such grave accusations. The standard phrase used by lawyers, "my learned colleague," which has already eroded over time, has now suffered a mortal blow from the attorney general, who is supposed to set an example for young attorneys. The attorney general's temper had not cooled when he met reporters and launched an unprecedently vicious attack on the prosecutors who were part of Arbel's team. He described the head of the team as having "influenced" the others and of having set herself a "target" - something that to jurists would constitute an egregious lack of professional integrity. Hurling such accusations is like accusing the attorney general of having approached the Sharon case with the "target" of not indicting him - something that is equally inconceivable. The attorney general announced yesterday, a day late, that he would publish the state prosecutor's opinion and the draft indictment that she had prepared. This will make it possible to evaluate the nature of the evidence and the reasonability of the prosecution's recommendation and the attorney general's decision. But regardless of the reasonableness of the attorney general's decision not to indict, his style, and the accusation that he drafted against senior prosecutors who as civil servants are barred from responding publicly, are clearly unreasonable. Mazuz must now demonstrate leadership by putting his house in order, without defining a "target," and by finding a way to close the case of "the attorney general versus the prosecution." Finally a commentary on the problematic nature of Ariel Sharon's actions and position from a public-moral perspective. If it was only that perspective - and not a purely legal or moral-legal one - which lead Edna Arbel to recommend indicting the Prime Minister, her position as a Supreme Court justice could become intenable. That does not mean that the fight for a government clean of any questionable or possibly suspicious links to the big money should not be fought by lawyers and legal authorities. The question today is who made that fight more difficult: Edna Arbel by maybe using questionable arguements and methods in order to reach an indictment, or Menachem Mazuz by maybe ignoring potential pioeces of evidence or by certainly discrediting the whole state prosecution system. Disgraceful conduct ( Today's Ha'Aretz Editorial Commentary ) From the legal perspective, Attorney General Menachem Mazuz put an end to the Greek island affair by deciding to close the file on Prime Minister Ariel Sharon and his son Gilad - unless the High Court of Justice voices reservations on his considerations. But the legal aspects and decisions, important in themselves, cannot push aside the urgency of examining the prime minister's public behavior. This behavior, as the facts clearly show, is not in keeping with the public norms of personal and public propriety that are required of a person in public office, never mind the highest public office. The complex of personal, business and political relations between the Sharon family and David Appel, the huge sums of money received by Gilad Sharon for his services to Appel, despite lacking either experience or know-how, as well as other deals like the Cyril Kern affair which the prosecution is still probing, raise huge question marks. If the questions are not about the cleanliness of the prime minister's hands, then they are certainly about his cleanliness of mind: it is very hard to accept the "lack of knowledge" excuse that characterized Sharon's answers to questions about his son's business dealings. Mazuz's opinion that "the evidence does not bring us even close to the feasible possibility of conviction," as he put it, might give the mistaken impression that it is also a sweeping kosher certificate for all of the prime minister's behavior in this and other affairs. The values of society are not determined only in courts of law, or by the opinions of lawyers. They are constructed in a long process of public discourse, which guides and cultivates the rules according to which society requires its leaders to act. This is also why public discourse clashes with legal decisions. The criteria for conviction in a criminal trial are narrow and rigid, and in a law-abiding state, they should be. On the other hand, the moral and ethical norms that are supposed to guide a civilized society must be seen as broader in scope, yet at the same time flexible, so that they give a clear direction to anyone in public office facing a value-related dilemma. A "dry" trial cannot always overcome the built-in gap in any democratic regime - between what the public at large defines as immoral behavior and what the law books and verdicts define as such. By virtue of his high office, Ariel Sharon is also on public trial. The large amount of information revealed in the investigation file and the report written by the attorney general can and should be used as evidence by a public concerned for society's values - or at least as a basis for several hard questions Sharon should answer. The public trial is not restricted by the rules of evidence that are required for a judge's verdict, and it can also be based on feelings of revulsion aroused by these facts. Sharon may be permitted to derive satisfaction from the attorney general's arguments and decision, but the public too is permitted to define the prime minister's conduct as inappropriate - even disgraceful.

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