Rule of law: New sheriff in town

With efforts to politicize the post, the aftermath of the Olmert and Liberman losses and a new panel overseeing prosecution, new State Attorney Shai Nitzan faces a volatile mix of challenges and opportunities.

By
November 21, 2013 22:42
Attorney Shai Nitzan

Shai Nitzan 311. (photo credit: Courtesy)

 
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Who is the most powerful person in Israel? The obvious choice would be the prime minister and some might say the governor of the Bank of Israel, but a leading candidate should be the new state attorney nominee, Shai Nitzan.

The anointment of Nitzan as state attorney gives him control of a prosecutorial apparatus that his predecessor used to topple a prime minister and a foreign minister.

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Nitzan himself will need to decide in the near future whether to indict former Ashkenazi chief rabbi Yona Metzger and former IDF chief of general staff Gabi Ashkenazi, among other major cases awaiting his decision.

He has a six-year term without needing to run for reelection, and essentially answers to no one - though the attorney-general can overrule him in some circumstances.

Or at least that was true about his predecessor Moshe Lador. Though sitting in the same chair as Lador, Nitzan enters a different world under unprecedented scrutiny.

The process by which he was appointed, in which the government has final approval but is viewed by many as a rubber stamp for the attorney-general, has been questioned, and may be changed while Nitzan is in office.

Currently, the state attorney is nominated by a five-member panel chaired by the attorney general.



In the US, for example, the highest prosecutor in the land is the attorney-general, who is nominated by the US president, but gets interrogated by Congress and must obtain its approval. In other words, the people’s elected representatives are more directly involved.

But the systems are hard to compare, as the US attorney-general combines some of the powers of Israel’s state attorney, attorney-general and justice minister into one, creating a super-powered legal official with no exact Israeli match.

With that in mind, it should be recalled that Israel’s justice minister is an elected official and that the justice minister essentially picks the attorney- general, who basically picks the state attorney – so the people do have some say.

But, do Israelis really want a political appointee in the post of state attorney who will be regularly accused of playing politics in prosecutions? Even under the current system, some on the Right tried to paint Nitzan as an ultra-leftist, in trying to oppose his appointment.

Nitzan has never made his political views public and whether he is right- or left-wing, his career decisions have been notably aggressive in confronting both sides.

For much of his career, Nitzan was known as a staunch defender of the Shin Bet (Israel Security Agency)’s interrogation methods.

In 1999, when the Supreme Court famously banned past methods used by the Shin Bet as torture, Nitzan argued the case for the state trying to uphold the methods.

At a Knesset hearing earlier this year, against an onslaught by left-wing MKs and NGOs to reduce the Shin Bet’s powers, regarding the length of time it can detain certain security suspects for questioning, Nitzan fervently defended the agency’s powers – asking those opposed if they wanted the next terror attack on their heads, if it was not prevented because a suspect was prematurely released.

Nitzan has also been one of the top legal officials involved in the thus-far successful fight against the Goldstone Report, delegitimization efforts and lawfare (foreign lawsuits against Israelis for alleged war crimes), which have been pushed by some leftwing groups and various foreign countries.

He also defended restrictions on Mordechai Vanunu’s speech and movement following Vanunu’s unauthorized revelations about Israel’s alleged nuclear weapons program.

The fact that in recent years he has also issued administrative orders against some right-wing activists in efforts to remove outposts; and launched an investigation into a group of rabbis who wrote Torat Hamelech and other works, over allegations of incitement against Arabs, has been used to paint him as an ultra-leftist. But many say this ignores the rest of his career, and risks politicizing a post that aspires to be non-political. Do those who want the Knesset more involved want a state attorney to balk at filing cases because of political considerations? Another issue under debate is how aggressive the state attorney should be in prosecuting public corruption.

Nitzan may be hamstringed by deafening criticism against Lador and the prosecution for filing and losing the Ehud Olmert and Avigdor Liberman cases. Partially because of the Olmert loss, delays in the decision to indict Liberman and other cases, a brand new post overseeing prosecutorial decisions was just created.

So now Nitzan will need to look over his shoulder with every decision he makes, especially in going after public officials, in a way that Lador did not need to.

Many believe that this oversight apparatus was a necessity for a prosecutorial apparatus which had gotten overly aggressive in its zeal to fight corruption, leading to unjustifiable toppling or hampering of public officials for ethics violations that were not criminal.

Others, especially prosecutors themselves, argue that the cases still had deterrence value and note that Olmert was convicted of a crime, and that the same courts which exonerated Olmert and Liberman also condemned them for unethical behavior unbefitting senior officials.

They say that even as the prosecution “lost,” public officials considering corruption will need to weigh that “winning” could mean losing office, and multiple years of embarrassing litigation and unflattering publicity.

Some of the dynamics of the new oversight apparatus will be evaluated on an ongoing basis, especially because the apparatus cannot intervene in the middle of a decision, only after; and also since it has no power to remove officials, but can merely criticize. It is thus not clear how powerful it will be.

But not everyone may think that limiting oversight is bad. Most agree that public corruption in Israel is out of hand, would not endorse the idea of a handicapped state attorney afraid to stop public corruption due to retaliation concerns, and believe that holding public officials accountable is a cornerstone for the rule of law.

Stepping into this volatile mix of circumstances, Nitzan has the challenge and the opportunity to reshape one of the most powerful posts in the land.

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