How will spying scandal impact Bibi trial, broader law enforcement? - analysis

Israel's law enforcement structure needs a reboot from the bottom up, but who will take the blame and will it actually change anything?

 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)

One defense lawyer in the trial of former prime minister Benjamin Netanyahu called the cellphone spying and hacking scandal “an enormous plague,” while several others have said it is an “earthquake.”

But besides making sensational headlines in the coming weeks, months or years from now, what will the scandal’s impact be on the Netanyahu trial specifically and on law enforcement as a whole?

In the trial, early signs are much less than what you might think.

The Jerusalem District Court basically blew off the scandal in its Friday ruling to continue hearing witnesses as scheduled, even as it said the prosecution should explain the situation by the middle of this week.

Some might have thought that this was a case of the judges misunderstanding the magnitude of the storm surrounding them and thinking it would be corrected within days.

 Israel Police Commissioner Kobi Shabtai visits at a temporary roadblock on Highway 1 outside Jerusalem (credit: YONATAN SINDEL/FLASH90) Israel Police Commissioner Kobi Shabtai visits at a temporary roadblock on Highway 1 outside Jerusalem (credit: YONATAN SINDEL/FLASH90)

In this narrative, once Netanyahu’s and other defense lawyers threw down the gauntlet before the judges, saying the nation would lose faith in them if they did not immediately halt the trial, the judges would “come to their senses” and duck for cover.

But so far there are consistent signs from the judges, especially lead Judge Rivkah Friedman-Feldman, that they are only going to analyze the technical legal issues applicable to the Netanyahu case.

The public’s faith in law enforcement and other issues will be for the executive and legislative branches and any commission of inquiry to resolve.

Even on Monday, Friedman-Feldman was dismissive of the defense’s arguments if they could not show a smoking gun, allowing cable authority legal adviser and witness Dana Neufeld to testify for five hours.

True, her testimony halted an hour early when a direct issue came up about using texts between Neufeld and former top Netanyahu aide turned state’s witness Shlomo Filber, and Tuesday’s hearing has been canceled pending a prosecution update.

But all indications are that the prosecution will present an update and that the court may then very well return to hearing witnesses on Wednesday, or within a few days.

What would be the impact if the judges hone in only on technical legal issues?

We already know about the big questions regarding Filber and defendant Iris Elovitch, who is the wife of Bezeq and Walla owner Shaul Elovitch and was allegedly directly involved in facilitating the media-bribery scheme.

 

SO FAR on Monday, the prosecution said that any hacking of Filber’s cellphone took place in 2018 after there was already a court order that had given the police physical access to the cellphone in 2017.

The defense complained that the court order had expired and that it related to a second Bezeq-Walla spin-off case currently underway in Tel Aviv, which is not before the Jerusalem court.

But the court has ruled for the prosecution on other similar disputes in the past, weighing the substantive content at stake over the procedural issues.

If this holds up and the Police did not hack Filber’s cellphone before the court order, the prosecution will have dodged its largest curve ball.

If it does not hold up ,then the judges will need to decide whether the hacking produced incorrect evidence or was serious enough to disqualify aspects of Filber’s evidence, despite it being truthful.

Most Israeli courts admit evidence if they believe it is true and decisive, unlike in the US where a principle known as “the fruit of the poisonous tree” often disqualifies such evidence.

There are no specifics yet to the charges of hacking Iris’s cellphone, so those charges need to be substantiated to matter.

But even if they are substantiated, it is possible that there was also a court order there and Iris destroyed her cellphone to obstruct the investigation, which would give law enforcement extra legal ammunition on that debate.

However, if hacking her cellphone was illegal and there is no good answer, she could be freed from the case.

That would still not necessarily free up her husband, Shaul, let alone Netanyahu.

Others mentioned in either the Calcalist article, other media or by the defense include former Netanyahu top aide turned state’s witness Nir Hefetz, Netanyahu ally and tycoon billionaire James Packer, former Walla CEO Ilan Yeshua, Avner Netanyahu (possibly including his mother Sara, who allegedly used his phone), former Walla chief editor Aviram Elad, former Communications Ministry director-general Avi Berger and Bezeq officials Stella Handler and Dudu Mizrahi.

While this list sounds intimidating, other than Hefetz, there are strong reasons why each of the other witnesses’ testimony would be accepted by the court even if the charges are true.

Most of the witnesses came forward voluntarily to help the prosecution, and if they were hacked, it was by some overzealous cyber police officials wanting to make sure nothing had been missed.

So the Netanyahu case may end up going on as scheduled with some bumps over a period of days or weeks – something that already happened once in the summer and was only a temporary setback.

Of course, the defense and the court could also at some point use the scandal to press for a plea deal.

However, all of this is limited to the Netanyahu case.

 

IN THE broader picture, however, there will be a greater reckoning.

Anyone in the police cyber unit who acted illegally, or even questionably and who is viewed as expendable, will likely be fired and some may even be prosecuted.

Former police chiefs Roni Alsheich and Moti Cohen and some of their top officials who were likely involved will be grilled and shredded in public before some kind of an inquiry.

A new law will probably be passed giving the cyber unit an overhaul and limiting its powers.

Still, this will likely not turn out as black and white as people think.

Alsheich never wanted to come to the police from the Shin Bet (Israel Security Agency).

He was begged by Netanyahu after several other candidates flopped because of one scandal or another.

Until now, he was praised as a visionary for the police cyber unit’s achievements.

In fact, Alsheich and the Police started putting out public statements and videos from 2016 onward to describe how the police cyber unit is not only investigating crime, but seeking to prevent crime.

The statements not only speak of saving lives, but of breaking up organized crime’s funding and of preventing criminal hacking and social-media incitement that might have no explicitly violent aspect to it.

Anyone who was paying close attention to police statements; who noted that there was no new law to provide new regulations regarding the police cyber unit; and who knew Alsheich’s Shin Bet background and the background of many former Unit 8200 officials whom he brought into the police, should be surprised that this took almost seven years to blow up.

While Alsheich has gone silent for now, he is not a quiet personality. You can bet that when he speaks up, he will hit back hard and talk about which political officials knew what they had authorized broadly, even if they did not bother with the details.

It is well known, despite Netanyahu’s denials, that he used NSO cellphone-hacking technology in early stages to entice Saudi Arabia, the UAE, Morocco and Bahrain into a more pro-normalization stance with Israel – despite some of these regimes using the technology to violate human rights.

Former public security and justice minister Amir Ohana was caught on recordings advocating forPolice oppression of anti-Netanyahu protesters in violation of the law. Might he have pushed for the same in the cyber arena?

In individual cases where the cyber unit went especially rogue, he will probably claim (and very possibly truthfully) that he was not consulted.

Some of those police cyber officials could be in real legal trouble.

However, they will also probably claim that there was no clear law setting boundaries for them.

In the end, the police will be restructured and many officials will lose their jobs or reputations, but it is unclear who, if anyone, from the Police will go to jail for this unnatural disaster.