The Winograd Committee believes the court has gone too far in its judicial interpretation of the law.
By DAN IZENBERGolmert winograd 298.88(photo credit: GPO)
It is easy to interpret the dispute between the High Court of Justice and the Winograd Committee over whether or not to publish the testimonies of witnesses given behind closed doors as no more than a fight over prestige between the two institutions.
After all, the five members of the committee headed by former Tel Aviv District Court president Eliahu Winograd are strong-minded and opinionated figures who have come far in their professional lives and are used to having their way.
As for the High Court of Justice, it goes without saying that the system of rule of law is posited, in part, on the fact that it has the final and decisive word in adjudicating disputes.
But it is much too simplistic, and too unworthy of both institutions, to look at it this way. At stake are several important issues relating to constitutional rights, including the right to freedom of information and the right to privacy, the extent to which considerations of national security may impinge on personal freedoms, the right of a commission of inquiry to determine for itself how it should operate, and how far the Supreme Court should go in interpreting the law.
Although the Winograd Committee is not a state commission of inquiry, the government of Prime Minister Ehud Olmert, which appointed it, promised the High Court to give it the same powers as defined in the State Commission of Inquiry Law. According to Article 20 (c) of the law, "the committee may, if it sees fit, publish the minutes of its hearings in part or in full."
Originally, on the basis of this law, the Winograd Committee did not intend to publish the testimonies at all, or at least not before it published its final report.
The committee also held all of its hearings behind closed doors. This, too, it believed, was in accordance with the instructions given it by the government to the effect that "the committee will not hold a hearing in public if doing so could endanger the state's security or foreign relations or for any other reason afforded by law."
THE COMMITTEE began hearing testimony on October 4, 2006. On January 1, Meretz MK Zehava Gal-On petitioned the High Court, demanding that the committee allow the public to hear the remaining witnesses and that it publish the testimony of the more than 60 witnesses who had already testified behind closed doors. In both cases, Gal-On added the reservation that these measures should be taken except when "it is certain they will cause substantial damage to national security."
The committee rejected both arguments. Regarding the publication of the transcripts, it warned that this would obstruct and delay the its work.
The High Court essentially rejected the Winograd Committee's legal interpretation of its prerogatives, saying it had ignored its obligation as a public, quasi-judicial body to allow open hearings.
"There is no doubt that the discretion of the committee with regard to the question of open hearings is not absolute," wrote Supreme Court President Dorit Beinisch. "Given the fact that the Winograd Committee is a body that has been given quasi-judicial powers, it must give proper weight to the principle of open hearings when it decides whether or not to hear testimony behind closed doors."
It applied the same principle to the publication of the testimonies.
Beinisch wrote that the committee had to apply Article 20 (a) "using its discretion in a reasonable matter and giving proper weight to all of the relevant factors [including the principle of open hearings]."
It was too late to deal with the question of open hearings because the Winograd Committee had already heard almost all of the witnesses by the time the petition was filed. With regard to the publication of the testimonies, however, the court ruled that the committee should, in principle, publish them. However, it was careful to grant it a great deal of leeway regarding the question of the timing of the publication and in determining what should be published and what should be censored.
Beinisch wrote: "The committee will keep in mind the principles discussed above and it can be assumed that it will take measures to publish those testimonies whose disclosure is permissible in a reasonable time and before it presents its final report to the government." The court did not define "reasonable time" except to say that it should be before the final report, whenever that would be.
Furthermore, in determining what should be withheld from publication, the court allowed the committee to balance the principle of open hearings not only with considerations of national security, but also with other "public interests," such as "protecting the proper conduct of the judicial process or the ability to uncover the truth."
The ruling was aimed at achieving a compromise that would satisfy both the Winograd Committee and Gal-On. However, it only served to anger both. The committee believed that court had unjustly interfered with its prerogatives. Grudgingly, it set about to implement the ruling.
Gal-On, on the other hand, felt that the court had not gone nearly far enough.
The ruling was handed down on February 6. On March 3, Gal-On petitioned again. She charged that the committee had ignored the first ruling by not publishing a single testimony during the four weeks that had elapsed and demanded that the testimonies of Olmert, Defense Minister Amir Peretz and former chief of General Staff Dan Halutz be released before the committee's interim report, due to be published at the end of April.
AT THIS point, the Winograd Committee made a serious mistake. In its initial response to the petition, it informed the court that it would publish its first three testimonies within a few days and would prepare those of Olmert, Peretz and Halutz immediately afterward. In the first hearing, on March 22, the committee, represented by Osnat Mandel, head of the High Court Section of the State Attorney's Office, promised the court the censored testimonies would be released before the interim report. The court, headed by Deputy Supreme Court President Eliezer Rivlin, turned the promise into an official decision.
But Rivlin, for no obvious reason, went further than necessary. He declared that the committee would publish the three testimonies before Pessah, one month earlier than Gal-On had requested.
During the critical days between the court decision and April 1, the committee changed its mind and decided not to publish the testimonies before the interim report. Thus, Pessah came and went and the testimonies were not published. Critics of the Winograd Committee accused it of contempt of court. Indeed, the court was stung by the development, even though Rivlin was partly responsible for what had happened.
Why did the committee change its mind? On March 22, it released the testimonies of Vice Premier Shimon Peres, former head of Military Intelligence Maj.-Gen. Amos Malka and Brig.-Gen. Arnon Ben-Ami.
Peres was infuriated by the heavily censored document that was published, which implied he had thought from the start that Olmert was mistaken in going to war but, instead of telling him, said so only in hindsight to the committee.
Peres's anger served to verify what the Winograd Committee members had felt all along, that it was a mistake to publish the testimonies. On April 1, it submitted another brief to the court, completely reversing its position and stating that it would only publish the testimonies after it released the interim report. It explained how Peres had been hurt by the partial publication of his testimony and declared that he was right.
At this point, Gal-On's petition became essentially irrelevant. The court's only real concern now was the fact that the Winograd Committee was fighting a court decision, and one which had been based on what the committee had told it in the first place. It is a fair assumption that the court would have rejected Gal-On's second petition had it not been for the Winograd Committee's change of mind and its violation of its own word to the court.
As far as the High Court is concerned, the Winograd Committee rejected its authority and disobeyed a court decision. But the committee members believe the court has gone too far in its judicial interpretation of the law and that it does not understand the committee's concerns and its assessment of what it needs to do to fulfill its responsibilities and analyze and assess the Second Lebanon War to the best of its abilities.
As is always the case in disputes like this, there are critics and observers with their own agenda. Some of those who criticize the Winograd Committee do so because they believe the government should have ordered a state commission of inquiry whose members would have been appointed by the president of the Supreme Court rather than the government. Some are motivated by political concerns: They want to bring down the government and suspect that the committee is a fig leaf established by Olmert to protect his interests. On the other hand, there are those who are hostile to the Supreme Court because they believe it is left-wing, or because it has greedily usurped the prerogatives of the government and the Knesset, and are happy for any opportunity to attack it.
There are, of course, critics of the committee who believe its members must accept the High Court decision and carry it out immediately, no matter what their private opinions, just as there are those who are not in principle hostile to the court but who still believe it has gone too far in interfering with the prerogatives of the committee.
The truth is that the Winograd Committee has already lost the battle. It has been forced to promise to publish the testimonies of Olmert, Peretz and Halutz at the very latest, two weeks after the publication of the interim report. That is much earlier than it would have had to publish them had the first court ruling stood, and likely much earlier than it would have had to publish them had it not violated the court's decision.
Ultimately, however, the court has suffered the greater loss. The committee will complete its work and disband. Making the safe assumption that it is a serious and independent body, it will leave behind a substantial piece of work. But the court has suffered from a challenge to its authority that will leave scars behind and may have an impact on its status in the future.
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