Shaul Gordon: Chief justice, police lawyer enigma

Demanding equality for Palestinians in IDF courts, but defending a top police officer accused of sexual harassment, Shaul Gordon doesn’t fit in a box.

An ultra-Orthodox Jewish man speaks to an Israeli policeman after police removed him from a synagogue before closing it as they enforce restrictions of a partial lockdown against the coronavirus disease (COVID-19) in Mea Shearim neighbourhood of Jerusalem March 30, 2020. (photo credit: RONEN ZVULUN/REUTERS)
An ultra-Orthodox Jewish man speaks to an Israeli policeman after police removed him from a synagogue before closing it as they enforce restrictions of a partial lockdown against the coronavirus disease (COVID-19) in Mea Shearim neighbourhood of Jerusalem March 30, 2020.
(photo credit: RONEN ZVULUN/REUTERS)
Shaul Gordon does not fit into any boxes.
On one hand, he was the powerful chief lawyer of the police – for an unprecedented 11 years (2006-2017) – who defended top police official Roni Ritman from a stiff punishment for sexual harassment.
Some on the Left might not approve of his views on such issues.
On the other hand, as IDF chief justice of the West Bank’s courts (2000-2006), he was ready to administratively detain extreme activist Jews and is a rare former Israeli judicial official who believes all alleged Jewish settler crimes should be handled in those courts, just like Palestinians.
Some on the Right might not approve of his views on these issues.
Currently, Jews in the West Bank are tried in Israeli civilian courts and only appear in IDF courts for special administrative detention or restricted movement cases.
Wearing a blue button-down shirt and black business-casual slacks, Gordon recently sat down with the Magazine to discuss some of the hottest issues confronting the IDF and the police for which he had a front row, and sometimes decisive, seat for more than 30 years, dating back to 1987. Gordon is also still involved in the public sphere.
“That Palestinians won’t like [Israeli] military courts, I can understand them. But if they would see that Israelis involved in crimes are brought to the military courts just like Palestinians, they would see we are talking about a system that is really independent and focused on the law,” said Gordon.
When the attorney-general’s office decided as a matter of policy (not law) in the 1980s that Palestinians would still be tried in the IDF courts but West Bank Jews would not, Gordon said, “they said they don’t want Israeli military officers dealing with Israelis.”
Another former IDF West Bank chief justice, Aharon Mishnayot, is in favor of other reforms, but believes Israelis must be in civilian courts.
Mishnayot said he believes this since West Bank Jews are citizens. Likewise, he says Israeli-Arabs must also be in civilian courts, but that Palestinians must be in military courts, because they are foreigners.
Critiquing the view of keeping West Bank Jews out of IDF courts, Gordon said with his not politically correct (for a former top IDF official) and matter-of-fact manner, “If we are talking about equality, then I think there should be equality. I think it’s wrong.”
Next, he was pressed if the government legal officials who made the decision were concerned about how the High Court might rule on the issue.
He said the military commander and the military courts in the West Bank “have the responsibility and the authority. Those two things exist also when bringing Israelis to trial.”
He said he was not talking about “tax or parking” issues, but violence, such as “rock throwing or striking someone physically.”
“They are not sitting in the same cells” with Palestinians when “waiting for their trial, so there are some adjustments we would have to make, but I had Jewish administrative detention in the military court of appeals,” he stated.
“When detaining Noam Federman… I didn’t have him next to a Palestinian in the courtroom, but an hour earlier there were Palestinians in the same seat” as the Kahanist Federman had been.
“So why only when it is for administrative detention is it ok, but for regular cases it should be different? I really understand the Palestinian side on this matter. They say you aren’t objective, because you only bring Palestinians to this court.”
This led into a discussion of many controversial aspects of administrative detention, a legal proceeding that includes judges and some oversight, but does not grant a detainee all of the same protections as a defendant in a standard criminal proceeding and allows presenting classified intelligence evidence.
Responding to criticism on the Right of placing Jews in administrative detention or other tough measures, he stated, “If I have intelligence that shows a person is a threat to the security of the territory of Judea and Samaria, then yes, you shouldn’t hesitate.”
In mid-February, Defense Minister Naftali Bennett canceled the administrative detention of a Jew who threw a rock at a Palestinian in a vehicle less than two days after signing the order.
The next day, the Shin Bet (Israel Security Agency) unleashed a rare public attack on Bennett.
Asked which side he believed was right, he gave a determined look, saying, “I have some criticism against the decision of Bennett. It is a matter for the professionals and not for the politicians. It is quite clear his decision was based on – though I cannot say anything completely for sure – there is every reason to believe he was [politically] pressured to change his decision.”
Delving into questions about administrative detention reforms, Gordon was asked if he supported appointing a central defense counsel who could view all of the classified intelligence evidence against detainees that their personal lawyers cannot.
“It is not a bad idea. I really felt attorneys for detainees cannot really do their job. Lawyers stand there and say my client didn’t do anything… But they do not know what they are talking about,” because they cannot see the classified intelligence evidence, he said.
“If I decided to release one of these detainees, it was not because of the defense attorneys [who did not get to see all the evidence], but despite what they said,” he commented.
Moreover, “The most difficult task of a military judge was sitting for these judicial reviews where you are doing the job of three different people: the prosecutor, the defense lawyer and the judge… In regular cases… each one does their job and the judge just has to decide.”
He described how the volume of administrative detention cases coming at once was a crucial factor to fairness and the seriousness of the judicial review process.
“Before the Operation Defensive Shield era in 2002, there were only around 15 administrative detainees. There were huge thick files and you could dig into each piece of material and question the Shin Bet officials involved.”
However, he explained that when the number of detainees jumps to 800 or 3,000, “then it becomes really difficult. If there is a reasonable number of cases per judge per day, around five or six, a judge can do the job and really dig in. If it gets to 20 to 30 per day,” Gordon said throwing his hands up in the air, implying it could be unmanageable,
Gordon seemed to think that a central defense counsel might assist in situations where the caseload jumps and at the very least would remove some of the Palestinian side’s perception of unfairness.
HE HIMSELF made significant reforms on other fronts while serving as chief justice.
“We don’t have judges anymore that aren’t legal experts. I stopped it in 2002,” he noted with some pride. Prior to 2002, officers who did not have legal training could serve as judges in the IDF’s West Bank courts just as they can serve on certain soldiers’ court martial cases.
When he was pressed by the IDF military advocate-general about how he could possibly find enough qualified jurists who would be willing to serve in the IDF West Bank court system, he replied, “I will bring in reservist judges.”
Recounting the story like someone who had survived a battle in which he took a dramatic gamble, he said the MAG’s office told him, “We are in the Second Intifada – no one will come.”
“I said, ‘Let me try.’ I publicized and advertised that we needed new jurists for the courts in newspapers everywhere. I wrote that there are times in the life of a nation where people have to step forward,” he said.
Some 300 lawyers from all over, from the state prosecution, the public defender and everywhere – people said they were willing to come. I only needed 120, so we ended up not being able to accept everyone,” he said with an energized smile.
Recalling the enhanced interrogation (or torture, depending on your viewpoint) by the Shin Bet of detainees prior to the practice officially being banned in 1999, he noted a case during the 1993-1995 period when he was the chief judge for the IDF courts in Gaza.
In one jaw-dropping case, a Shin Bet interrogator was asked by the Palestinian’s defense lawyer, “Did you beat him?” and the Shin Bet interrogator replied, “‘It’s true.’ Suddenly, there was silence in the courtroom.”
Even today, Gordon appeared to be telling the Magazine about the story with some amount of disbelief.
After he was asked how it happened, Gordon said the Shin Bet interrogator said the Palestinian was spitting at the investigator and acting provocatively as if he was in control.
Gordon recalled the interrogator testifying, “It always needs to be clear who is investigating and who is in control. So he slapped him on his face and wrote it down, noting it was reported to his superiors.”
The current era, he noted, is different with rougher physical pressure banned and even lighter physical pressure “used only for ticking-bomb” cases and “not just to get control.”
He added that today’s Shin Bet “for many of its own reasons doesn’t like using it. If you pressure too much, you could get a confession from the wrong person and leave the real terrorist free outside.
“I know of cases where someone confessed and the Shin Bet didn’t accept,” even though the prosecution was ready to indict based on the confession.
SHIFTING TO Gordon’s 11-year career as chief legal adviser and a major powerhouse within the police, he discussed the Roni Ritman saga.
The saga rocked the police in general and led to intense debate over then-police chief Roni Alsheich as well as Gordon’s roles in addressing Ritman’s conduct.
Ritman was one of the top officials in the force, eventually heading Lahav 433 (the “Israeli FBI”) and was accused by female officer “S” of sexually harassing her.
Gordon’s overall message was that Ritman’s actual infractions were extremely minor, but that he acted too proudly in refusing to admit any fault whatsoever.
Next, Gordon said he found himself in the middle of a heated battle.
Then-attorney-general Yehuda Weinstein closed the criminal probe against Ritman, but wanted Ritman moved to a less sensitive and more behind-the-scenes position (an unofficial demotion).
Alsheich wanted to merely lightly reprimand Ritman with no limit on his future within the police.
Gordon said he had tried to strike a middle of the road position.
He wanted to make it clear that Ritman’s conduct was problematic, but that the consequences should be minor, such as foregoing seeking promotion for two years.
Alsheich took Gordon’s opposition to demoting Ritman as ammunition to reject Weinstein’s position and promoted him to head Lahav 433.
But the female officer who claimed Ritman had sexually harassed her filed a petition to the High Court of Justice. The court eventually compelled Alsheich to rebuke Ritman in a harsher and more public manner and to Public Security Minister Gilad Erdan, blocking any further promotions.
Questioned about whether he stood by his opposition to Weinstein wanting to demote Ritman even after the High Court appeared to take Weinstein’s side, Gordon viewed the issue differently.
First, Gordon, clearly still disturbed by the saga, acknowledged that Ritman was “a good friend. Still, I think that what he did was wrong… Now there was nothing dramatic, but he didn’t act in the right way which you would expect from a senior officer.
“The right thing, the smart thing for his [Ritman’s] own interest would have been not to try to cover it up and say everything is fine. To do something with it. I gave him suggestions about what he could’ve done. And if he had done it, there would have been less criticism. What bothered everyone was that he didn’t do anything with it,” said Gordon.
“It turned out that I was right,” that Ritman could not smooth over the incident, once the High Court intervened, according to Gordon.
While disapproving of Ritman’s conduct, Gordon implied that some of the incident was blown out of proportion because “S” was allied with top police official Guy Nir, who was being probed by the Police Investigation Department for another charge.
Gordon said Nir told PID to speak to “S” as an offer to bring them dirt on a different top police official, if they would leave him alone.
The Ritman saga eventually got wrapped up into two broader debates surrounding the police.
One was Alsheich’s campaign against anonymous complaints against senior police officials, seeking complainants to come forward, at least to PID.
In most of the media, Alsheich’s opposition to anonymous complaints was portrayed as against the spirit of the #MeToo movement, as trying to cover up the police’s dirty laundry and trying to protect his senior echelon after a wave of scandals.
But Gordon viewed the issue differently.
He said the campaign was not to eliminate all anonymous complaints, but to try to bring them into a more reasonable proportion and to achieve more reasonable timing.
With a sarcastic look, he said, “It was amazing that whenever we would approach the time period for promotions, suddenly we would get anonymous letters from so many places.”
Gordon explained that most of the letters they got were based on flimsy or manufactured facts.
These were blatant attempts by competing police officers to sabotage the career of their competition, or just naked retaliation by some officers against others who they did not like, he said.
He said it was important to try “to stop this practice,” which hurt morale and unity within the force.
At the same time, Gordon said, “Any idea of completely not dealing with anonymous letters is wrong… I know of so many cases [where] things really happened, but people are afraid to come forward.”
WHERE DO these issues come from?
Gordon’s opinion is that most of the top officials who are abusive were part of a generation and group of officers who were abusive from the start.
He said there used to be a culture not only in the police, but also in the IDF and other arms of the defense establishment, of senior officers covering for each other.
Moreover, he said one reason there was so much recent focus on the police regarding sexual harassment and some actions violating modern conflict of interest principles relating to corruption was that the IDF addressed the same problems earlier.
Getting personal, he said, “I know a case where a superior police official started touching a woman I knew [it was] while she was in an elevator. She went to his boss… The boss said, ‘You are joking, forget this!’”
He said that because that boss, who incidentally was female, did nothing to the abusive officer at the time, “He continued making problems. Eventually, when he was going to be promoted to be a top official… suddenly PID received around five anonymous complaint letters.”
“PID checked and found all the complaints were true. The officer was not promoted and had to leave the police. If these problems were dealt with earlier and ended when they were small, perhaps they would not reach this state.”
Clarifying, Gordon said that even in only the last few years, sexual harassment rules are being enforced more strictly.
Gordon also addressed criticism of how the police handles minority groups, such as Arab-Israelis and Ethiopian-Israelis.
Straight-out, he said, “We have a problem,” but then pivoted to reforms put forth by his wife, “who was the head of police education and today is the chief judge of the disciplinary court for police.”
One reform has been to proactively train police in bridging cultural differences.
“We don’t all come from the same culture… There are a lot of differences in the way we deal with people according to their culture,” he said, noting that there was a whole plan for integrating Arabs and ethnic Ethiopians and Russians into the police and for dealing with specific-related cultural issues.
For example, “usually when you speak to someone, if they don’t look you in the eye, you will think they are lying. But with Ethiopians, it is not polite for a younger person to look at an older person at eye level. They wouldn’t dare. It is a question of respect.”
He said it can be crucial for police to be trained about such cultural differences so that they don’t misinterpret how people act across cultures.
Moreover, Gordon said a police campaign to integrate minorities has succeeded in increasing the percentage of Muslim Arabs (in addition to Christians and Druze) in the police force from 1.5% to 3.5%, with a goal of reaching 7%. This would get closer to the 17% of the population that are Arabs.
He said that today there are even “female Arab interrogators who wear the hijab and female haredi [ultra-Orthodox] interrogators covering their hair, both to handle sensitive crimes, like sex crimes, for their communities.
“Haredi girls or women victims definitely won’t open up to a man, but not even to a woman who is not from her background. Sometimes they will open up to only a haredi woman who dresses like them. The same thing is true with female Muslim interrogators,” he remarked.
Gordon added that the police are “recruiting Muslims from all over, not only to serve in their own villages,” but to serve everywhere and to enrich “the regular police courses for all recruits in Beit Shemesh. They should see Muslims” as part of the police force from day one.
He also expressed optimism that Israeli-Arabs now support building additional police stations in their villages and that the state is investing more funds in more camera surveillance and enforcement abilities to give Israeli-Arab villages greater security.
Agree or disagree with Gordon, in an era when so much of society’s policy decisions seem to be formed by tribal party politics loyalties, it is refreshing to see an official who looks at each issue with an eye to what is best and honest, leaving politics aside.