Netanyahu trial: Witnesses to go forward despite phone hacking scandal

The prosecution has until February 8 to respond to the allegations of using spyware to hack phones.

 OPPOSITION LEADER MK Benjamin Netanyahu has an animated conversation in the Knesset plenum last month.  (photo credit: YONATAN SINDEL/REUTERS)
OPPOSITION LEADER MK Benjamin Netanyahu has an animated conversation in the Knesset plenum last month.
(photo credit: YONATAN SINDEL/REUTERS)

The Jerusalem District Court on Friday gave the prosecution some breathing space on the cell phone-hacking scandal in the public corruption trial of former prime minister Benjamin Netanyahu, ordering that witnesses proceed to testify as scheduled on Monday, despite the defense’s demands that the scandal halt all testimony.

In addition, the court ordered the prosecution to provide an update on the scandal by Tuesday. The impression, however, was that the court will allow the next two witnesses to testify this week and only address the scandal before the testimony of former top aide turned state’s witness Shlomo Filber.

On Thursday, lawyers for Netanyahu and for Bezeq and Walla owner Shaul Elovitch filed motions with the court attacking the police and the state prosecution over a new scandal in which Filber’s cell phone was allegedly illegally hacked.

Filber had been due to testify in the coming weeks.

Shlomo Filber, the suspended director-general of the Communications Ministry, waits for his remand hearing at the Tel Aviv Magistrate’s Court on February 18, 2018 (credit: REUTERS)Shlomo Filber, the suspended director-general of the Communications Ministry, waits for his remand hearing at the Tel Aviv Magistrate’s Court on February 18, 2018 (credit: REUTERS)

On Monday, the government is expected to approve Gali Baharav-Miara as the next attorney-general, which will leave addressing this issue one of her first points of business even as Justice Minister Gideon Sa’ar had hoped to get the Attorney-General’s Office out of issues relating to the prosecution.

Netanyahu’s lawyers claimed the cell phones of multiple key players in the trial were hacked besides Filber’s. These include: Elovitch, Nir Hefetz, Yair Netanyahu, billionaire tycoon and Netanyahu-ally James Packer, as well as former advisers to Netanyahu and people close to Yediot Aharonot owner Arnon “Nuni” Mozes.

Hefetz told The Jerusalem Post on Thursday night that even in the event that his cell phone was hacked, he would stand by his testimony for the prosecution.

If he maintains that position, then while there could be negative personal consequences for police who might have broken the law, there is a good chance that under Israeli law, the court will allow his testimony to stand.

The situation with Filber, however, could be more complex since he has not yet testified.

Though the current Police spokespeople have not pointed the finger at the prosecution and prosecutors have appeared generally surprised and off-balance, some anonymous former police officials have generally alleged that the prosecution knew about the uses of cell phone hacking in the Netanyahu case.

IN THE motions, lawyers Boaz Ben Tzur and Jacques Chen demanded three things:

  1. The prosecution provide a full deconstruction of the scandal within days.
  2. The subject matter of this coming Monday’s hearing be shifted from witness testimony to exclusively focusing on this issue.
  3. The court reevaluate its view of the entire case to date and its expectations going forward.

The defense was expected to get some leeway to postpone Filber’s testimony and possibly other testimonies until the prosecution assessed the latest scandal and forwarded all relevant evidence to the defense.

The court’s initial ruling is an indication that unless the scandal harms actual evidence presented at the trial, the judges may say it should not help with Netanyahu’s defense and leave disciplining the Police to the Police and the prosecution.

It is also possible that the prosecution and defense could engage in a legal battle regarding how much data relating to the latest police-NSO cell phone hacking scandal must be disclosed – something that could delay the trial by several weeks.

According to the reports, the police cyber unit did not pass on the information it gleaned to the Justice Ministry’s Police Investigation Department or the prosecution.

Despite that qualification, a new revelation that the Police might have even used illegal cyber tools to collect intelligence on someone at the center of the Netanyahu cases sent shock waves throughout the country and led to wild speculation about altering the course of the case.

In the most radical scenario, the latest news could undermine the prosecution’s credibility with the court and empower Netanyahu to seek an improved plea bargain.

Alternatively, the prosecution might eventually seek to downplay the issue as irrelevant to the trial if they did not use it to prove the charges against the former prime minister.

Unlike the US, Israel does not have as strong a “fruit of the poisonous tree” principle that leans toward automatically disqualifying evidence illegally obtained, even if the evidence is true and proves the charges. Instead, Israel allows courts discretion to allow illegally obtained evidence if they view it as credible and decisive.

JUSTICE MINISTER Gideon Sa’ar, a longtime critic of Netanyahu, is pushing for a bill to make Israel tougher on the Police for such abuses. Either way, the law that courts would apply to the Netanyahu case would be the law that existed when the case started in January 2020, not laws adopted later.

In any event, Ben Tzur and Chen said that the prosecution must explain four things:

  1. When any illegal hacking occurred.
  2. Which police officials were involved in the hacking and had knowledge of or approved it up the chain of command.
  3. Whether any byproducts of the hacking were used to interrogate witnesses in the case.
  4. Whether any evidence acquired by later court orders was obtained using byproducts of the hacking without disclosing to the courts that illegal hacking had taken place.

The more the Police’s or prosecution’s case benefited directly or indirectly from the hacking, the more it could lead to motions by the defense to disqualify items of evidence and even for a mistrial.

To the extent that the hacking did not benefit the case, the sting for law enforcement might be limited to consequences for those involved in illegal hacking activity, but without harming the case against the defendants.

Channel 13 reported on Thursday night that the Police might have initially misled the prosecution earlier this week about what it did or did not do in terms of hacking.

These allegations are the latest spin-off of the Police-NSO affair, which has shaken the security service to its foundations in recent weeks.

The motions also presented a transcript of a recording showing that some police investigators learned about the use of the cell phone-hacking tool and even discussed it right before they questioned Filber.

The transcript indicated that the investigators seemed to think the hacking was illegal, but that they might not have been part of the decision to initiate the hacking.