Ehud Olmert’s Impending Indictment—And the Challenge of the Rule of Law in a Newly Affluent Society

A swirl of events within little more than a week—all of them related, in one way or another, to the rule of law or to the problems of law enforcement—served to remind Israeli citizens that, while deadly enemies do lurk outside, some of the most vital challenges to our cohesion as a nascent nation still lie within. There were the sad and deeply troubling echoes from the three cases of child-murder within families. There was a brazen shooting at high noon of a major underworld figure, in a popular restaurant in Netanya, which left him badly wounded and three innocent bystanders slightly hurt. They were luckier than Margarita Lautin, a mother of two shot to death a few weeks ago on the beach of Bat Yam, another name added to a long list of unintended victims of the escalating warfare among Israel’s crime families. There was also an ugly internal brawl over the abrupt dismissal from the national police force of one of its brightest officers, Nitzav (a rank equivalent to major general in the IDF) Uri Bar-Lev—whom we came to know at Beit Moses as the hard-driven man who led a mission of Israeli police officers, shortly after 9/11, on an AJC-sponsored tour of U.S.

Then came the dramatic vote in the Cabinet on Sunday, September 7—with barely 13 for (including the prime minister and his minister of justice, Professor Daniel Friedman); and 12 against (including all four contenders for the leadership of Kadima, the governing party, in next week’s primaries—Tzippi Livni, Shaul Mofaz, Meir Sheetrit, and Avi Dichter), over a proposal put forward by Friedman, aimed at curbing the power of the judiciary to annul laws of the Knesset. Arguing that the Supreme Court’s activist stance now threatens the ability to govern, Friedman proposed a law that would give the legislative branch the ability to overrule any such annulment by a straight vote of a majority of the full Knesset—61 MKs. He also added other clauses that he felt would help restore the supremacy of the people’s elected representatives; and which his detractors saw as a deliberate attempt to gut the Supreme Court and undermine the constitutional balance of powers.

Finally—on the very same day, and, mysteriously, just within TV prime time—the police presented to the attorney general its recommendations in three of the investigations conducted into the prime minister’s financial affairs: the “stuffed envelopes” case, which involved an American fundraiser, Morris Talansky, and his personal dealings with Ehud Olmert, the latter’s assistant, Shula Zaken, and the prime minister’s friend and lawyer, Uri Messer; the “Rishon Tours” scandal, involving the double or triple submission of receipts for official travel; and the investment center case, in which Messer played a major role in arranging economic favors that suited Olmert’s interests. On all three, the investigating officers and their commanders felt the evidence would be sufficient to indict, but the ultimate call will be made by Menachem Mazuz, the attorney general. (In Israel, this position is called the legal adviser to the government.)

In the past, recommendations to indict were served against prime ministers while in office—Ehud Barak for campaign finance offenses, Benjamin Netanyahu for receiving gifts and favors, and Ariel Sharon (already during Mazuz’s tenure) for his and his sons’ complex relations with a notoriously corrupt contractor (recently convicted in a different case)—but the decision was made not to indict. (Sharon’s son, Omri, later went to jail in a separate campaign finance scandal.) This time, however, the momentum has become so strong that such a turn of events now seems unlikely. Olmert himself chose to accept early primaries in Kadima, and then a month ago agreed not to contest them, but he still refuses to resign from his present post until an indictment is actually served. A remarkable career, marked by some exceedingly brave security decisions, many instances of grace under pressure, and a good stewardship of Israel’s thriving economy, but marred irretrievably by the 2006 Lebanon War and now by this accumulation of petty misdemeanors, is apparently coming to an end.

This, however, is only part of the story. To some stricken Israelis, what they witnessed amid the turbulence of recent weeks was a profound moral failure, an almost prophetic writing on our tenement walls: Are we on our way down to the abyss of corruption that has ruined so many new nations? For others (and certainly for those who took up Olmert’s or Friedman’s case), the problem lay elsewhere, namely, in the aggressive overreach of the Supreme Court and its bid to undo the politicians it did not like. (Interestingly, many of the justice ministers who tired to curb the judiciary’s powers ended up being probed by the police.) To those caught in the middle, the full range of “police affairs” provided an opportunity to reflect upon where we are, as a young state without a written constitution, caught in a highly complex conjunction of local and global trends:
  • The relationship of power and money (really big money, nowadays—we have our share our billionaires, a term that to a former generation of Israelis applied only to legendary figures across the ocean) in a world where the fiction of free trade often meets the fact of governmental involvement in major decisions;
  • The problems of governance in a society far more complex and unruly than David Ben-Gurion ever had to handle—and he did not have an easy time, either—and one in which crucial matters, including life-and-death security decisions (such as the route of the anti-terrorist barrier) have come under judicial review;
  • The activist philosophy of the judiciary in general and the Supreme Court in particular, which some deem to be vital to sustain democratic and civilized norms in a savage political atmosphere, and others see as an usurpation of the rights and duties of the Knesset;
  • At the murky edges, where a globalized economy meets worldwide crime, Israel saw in recent years the rise of a few powerful mafia-style clans—Avitbul, Ohanina, Alperon, etc.—some of whose “business” interests reached overseas; indeed, in recent years it was U.S.-Israeli cooperation that sent some of them to jail. Still, they are often successful, enjoying all that big money can buy in the race to stay ahead of the law enforcers.
  • Finally, there is the Israeli police, a national force under unified command, but torn by internal rivalries; largely committed and dedicated, but with a few bad apples in the crate; well integrated within the successful effort to curb terror, but for this very reason, overstretched and troubled when it comes to fighting common crime.

Put all of these ingredients together and you have the making of a week like the one we have just had; a stark reminder that we still need to get our act together when it comes to the basic duties of a government toward its citizens. Almost desperately enthusiastic after a bad night, Olmert was at the airport early on Monday morning to welcome 235 new immigrants from the U.S. who made aliyah with the help of Nefesh B’Nefesh, a new NGO that has now (in typical fashion) overtaken the role of the tired Jewish Agency in this vital realm of Zionist endeavor. “This is a wonderful country,” he said—and despite all of the above, he was right. And he added a familiar phrase—to older Israelis—namely, that “America is here.” The latter is a somewhat outdated way for us to take pride in our newly established affluence; and when it comes to economic growth, to the amenities of life, to the richness of cultural offerings, he may well be right again. And yet when it comes to the primal battles over judicial review and the rule of law, if this is America, it is America of the 1830s; and with no magic wands (or inspirational leaders) in sight, a solution to our dilemmas is still far off.
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