Analysis: Why is A-G investigating Ashkenazi, not Barak?

It doesn’t seem fair.

The State Comptroller’s Report on the Harpaz Affair, which came out on January 6, aimed its strongest criticism at former IDF chief of staff Gabi Ashkenazi, but lambasted both Ashkenazi and outgoing Defense Minister Ehud Barak pretty equally.

According to the report, both had staff people spying on each other to varying degrees and both crossed lines regarding their authority and interfering in the other’s affairs.

So why did Attorney-General Yehuda Weinstein decide on Tuesday night, only weeks after indicting former foreign minister Avigdor Liberman, to open a military criminal investigation into Ashkenazi’s conduct, and leave Barak in the clear? Weinstein’s decision specifically rejects investigating Ashkenazi for any criminal charges that a civilian could be charged with under the Penal Law. He also made it clear that the military police, not the civilian police, will be the ones investigation Ashkenazi and his former top aide, Col.

Erez Viner.

“Conduct unbecoming” a soldier, the charge Ashkenazi is being investigated for, does not exist under civilian law, which explains part of the fundamental difference between the treatment of him and Barak.

While the IDF chief of staff is one of the most powerful figures in the country, in the eyes of the law, special rules and regulations apply to anyone who wears a uniform.

Even if Barak and Ashkenazi’s actions regarding the Harpaz Affair were equally blameworthy from an objective point of view, or even if Barak was worse, their different uniforms, or Barak’s lack of one during the affair, mean they will be treated differently.

Barak cannot be charged for “conduct unbecoming” no matter how problematic Weinstein or any other official might find his behavior. Ashkenazi, on the other hand, is judged by a higher standard, as he was a soldier during the incident.

No matter how wrong Barak may have been with certain of his actions, he was Ashkenazi’s civilian superior, and if democracy is to be secure from military takeovers, there can be no second-guessing civilian decision-makers, not even by a highly popular IDF chief of staff.

Despite all that, Ashkenazi is still far from being in serious trouble.

The State Comptroller’s Report was damning in a very specific way toward Viner, but was much more general regarding Ashkenazi. Weinstein’s decision is simply to investigate, not indict, and is far from a court conviction.

Even if Ashkenazi is eventually convicted, a finding of conduct unbecoming will probably not legally impact his potential political career. Although the charge carries a maximum sentence of one-year imprisonment, maximum sentences are rarely used and Ashkenazi is no longer in the IDF.

The damage to his public image would be more significant, but Ashkenazi may be able to still shift much of the blame on to Barak in the court of public opinion. First he will need to invest in significant legal and political resources to fight for his innocence and rehabilitate his image.

Worst of all, he will need to continue tolerating his name appearing in headlines with the loose-cannon now-pariah Boaz Harpaz.