yuval Elbashan 224.88.
(photo credit: Ariel Jerozolimski)
Yuval Elbashan, the founder and director of the Center for Clinical Legal Education for Human Rights and Social Responsibility at the Hebrew University's Faculty of Law, sees a strong parallel between the condition of the State Attorney's Office today and the IDF during the Second Lebanese War.
Just as the wrong men were in charge of the army on the eve of the war, so the wrong men are in charge of the State Attorney's Office today, he said.
"The problem is that there is a lack of professionalism," Elbashan told The Jerusalem Post Monday. "The people in the State Attorney's Office do not know enough about criminal law on the simplest level. What the system needs is a Gabi Ashkenazi," he added, referring to the new army chief.
Now, said Elbashan, with a search committee headed by Attorney-General Menahem Mazuz seeking a replacement for outgoing State Attorney Eran Shendar, was the time to find him.
According to Elbashan, the comparison between the pre-war IDF and the current state prosecution is almost perfect. "[Former defense minister] Amir Peretz and [ex-chief of General Staff Lt.-Gen.] Dan Halutz were very intelligent and full of good intentions but lacked experience and were a bit arrogant. This combination of inexperience, intelligence and arrogance led them to the mistake of going to war. Now, we have Gabi Ashkenazi, perhaps less brilliant than Halutz, perhaps less impressive in the eyes of our American friends, but someone who knows exactly what it means to move troops in, take them back out, move them in again and give orders. Because he has been there himself," Elbashan said.
Elbashan does not accuse Mazuz and Shendar of arrogance, but maintains that they have no real experience in criminal matters. "Shendar, and even more so Mazuz, are very talented. I think Mazuz is a model attorney-general. But, what can you do? He has no experience in the criminal field. And when the man at his side also lacks experience in criminal law, that's the core of the problem."
And the problem, he continues, emerged in full force in the allegedly botched case of former president Moshe Katsav.
So, what should the search committee be looking for?
"Exactly that, a legal Gaby Ashkenazi," said Elbashan. "Someone who knows the job."
The assertion that the heads of the criminal justice system are not hands-on criminal lawyers but only have a theoretical knowledge of criminal law has filtered down to the lower echelons of the State Attorney's Office, Elbashan charged.
"In the old days, people were promoted through the system slowly, one step at a time, on the basis of their fieldwork. Now, values have changed. Expertise is not considered so important any more. Management skills are more important.
"That's exactly what happened in the army. They said, 'We don't need a ground army any more. We need a concept, we need genius, we need people who know how to look at plasma screens. We don't need people who get dirty in the mud.' The younger attorneys who want to get ahead see this and act accordingly," Elbashan said.
The other major problem in the state prosecution is that its leadership no longer stands for right and wrong, Elbashan said. "The trend began in the era of [attorney-general] Elyakim Rubinstein and has grown stronger in recent years," he continued. "The idea now is that the prosecutors are legal technicians, not moral leaders. They don't say what is proper or improper conduct."
When Supreme Court President Dorit Beinisch was state attorney and Nili Arad headed the High Court section of the State Attorney's Office, "the corridors of government trembled," Elbashan said. Under Beinisch, the office fulfilled a social role and it was right to do so.
"What do we hear from Shendar on matters of public concern?" asked Elbashan. "We hardly hear anything at all."
He believes the State Attorney's Office went too far under Beinisch and feels strongly that civil servants should not act in place of elected representatives. Nevertheless, under Mazuz and Shendar, the pendulum had swung too far the other way, Elbashan said. "The price we are paying for today's silence is the increase in corruption and the unacceptable norms of behavior in public life that stem from the fact that today we all know no one is carrying a steel hammer," he said.
According to Elbashan, the search panel must propose to the cabinet a state attorney who is an expert in criminal law and has a worldview and is courageous and outspoken in upholding it. "I'm afraid of two things," he continued. "The first is that the committee will choose someone who is not an expert in criminal law. The second is that the nominee will be someone who does not stand for anything, who gets the job because he didn't offend anyone along the way, someone who always knows how to belong to the group in power, someone who advances from one job to another, from one deputy post to another by pleasing his superiors."
Is there anyone out there who fits Elbashan's requirements? He quickly names three - former public defender Kenneth Mann, criminal lawyer Avigdor Feldman and former dean of the Bar-Ilan University Law Faculty Prof. Ron Shapira.
His first choice is Mann. "He is a criminal law expert, an honest man who stands by his beliefs, and he is familiar with criminal law from the bottom up, from the police interrogation rooms and the prison cells of the pettiest criminals."
Is there a chance that the search committee under Mazuz will pick Mann or a candidate of his stature? Yes, Elbashan said.
"Last time, Mazuz chose Shendar," he said. "I'm not sure it was the best possible choice. That is to Mazuz's discredit. But if there is anyone about whom I can speak warmly, it is Mazuz. He is an honest man, an expert and a wise person. Therefore, I believe that after the mistake he made in choosing Shendar, he will choose someone else, even at the cost of having a less loyal second in command."