Rule of law: Attorney-general on deck

Avichai Mandelblit – a force to be reckoned with and an unfolding mystery: Where will he take the country on issues of religion and state, law of war, settlements, civil rights vs national security?

By YONAH JEREMY BOB
Updated: JANUARY 11, 2016 22:25
Avichai Mandelblit and Netanyahu (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit and Netanyahu
(photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Possibly the only thing that people can agree on about Avichai Mendelblit’s appointment as Attorney-General is that he will be a formidable force in the position, quite possibly punching in a weight class even higher than that of outgoing Attorney-General Yehuda Weinstein.
And that is saying something.
Weinstein has critics (and supporters) on the Left, on the Right and everywhere in between, and some viewed him as too passive in some instances, but he had a massive impact on the country in innumerable ways for six years.
Yet Weinstein came into his post without a real constituency, name in public service or expertise beyond the area of criminal law. He was viewed as one of the top minds in criminal law in the private sector, but that does not give one an army in public policy disputes.
Weinstein was a boxer in his youth –a man ready and used to standing alone. Mandelblit has been and still is a stand-out soccer player, a team sport where you often lead as part of an institution - and have an institution of backers.
In contrast to Weinstein, Mandelblit comes into office as one of the most powerful IDF Magistrate Advocate General’s in history, reigning from 2004-2011, almost double a typical term.
He was also one of Prime Minister Benjamin Netanyahu’s right-hand men serving as Cabinet Secretary since 2013 up until the present.
Whereas many attorney-generals, like Weinstein, come into office knowing little to nothing about international law and other specialty public law areas and rely heavily on their staff, Mandelblit is an expert in international law and some other areas in his own right.
Further, many of his former officers in the MAG have taken over key posts across the government and the IDF.
The current MAG Sharon Afek was Mandelblit’s deputy. The Justice Ministry’s oversight czar for the Shin Bet (Israel Security Agency), Jana Modgavrishvili was a division head for Mandeblit. The current Deputy Attorney-General for International Affairs Roy Schondorf was a mid-level officer in the MAG when Mandelblit was a senior officer. The list goes on and on.
 Mandelblit passed on commenting for this article, but that he will be a singularly powerful Attorney-General is without dispute.
Where he will help take the country with all of that power and whether he will use his closeness to Netanyahu to flip the prime minister on some issues or get flipped because of that closeness is hotly disputed.
First, there is the trust issue when it comes to enforcing purity of ethics and, if need be, indicting public officials.
Groups like OMETZ and the Movement for the Quality of Government in Israel as well as a list of legal scholars like Professors Uriel Reichman, Amnon Rubinstein and Adv. Shmuel Kleger believe Mandelblit should have been disqualified from being appointed.
Their objections rest on either his involvement in the Harpaz Affair or because he had no “cooling off” or gap period between being cabinet secretary and attorney-general.
But he also had a long list of legal scholars backing him, including: Professor Ariel Bendor, Amichai Cohen, Aviad Hacohen, Avi Sagi and Adv. Gidon Sapir.
Regarding the cooling off period, the dispute is whether the cabinet secretary position and Mandelblit’s actions there were political or non-political.
This debate can go either way as politicians like Opposition leader Isaac Herzog have used the position to launch a Knesset run, but those like Elyakim Rubinstein, have moved from the position back into legal jobs, such as his ascension to being Deputy Supreme Court President.
Ultimately, though the attorney-general selection committee head, former Supreme Court president Asher D. Grunis, voted against Mandelblit due to this issue, the other four committee members supported him.
The Harpaz Affair probably raises the emotional bar to the highest levels.
In addition to Mandelblit’s list of opponents above, his most important one was Weinstein himself who tried to indirectly torpedo his campaign for the attorney-general position by closing the Harpaz case against Mandelblit on ambiguous grounds.
In the Knesset, closing a case on any grounds is a ringing endorsement as even being indicted, tried and found not guilty for lack of evidence is enough to continue.
But to be attorney-general, any candidate would want a completely clean record with any case against them closed on the grounds of “lack of any basis to have been suspected” in the first place.
A closed file for “lack of evidence” would terminate most candidates chances for being attorney-general as it leaves the impression that the prosecution believed the candidate was guilty, but that it would not win in court.
On the record, Weinstein has carefully taken no position about Mandelblit’s appointment and the state has defended the appointment on technical grounds when attacked before the High Court.
But in closed conversations, Weinstein has strongly implied that he views Mandelblit as dishonest, or that he was dishonest in the Harpaz Affair, which stains his credibility to reign in corruption by public officials.
In his public opinion on Mandelblit’s involvement in the Harpaz Affair, Weinstein did not give an official ground for closing the file, but essentially left a strong implication that Mandelblit had deceived his senior deputy Raz Nizri and lied to the police.
He went so far as to direct that Netanyahu evaluate whether Mandelblit should be forced from his current position as cabinet secretary.
While Netanyahu ignored this directive, Mandelblit was so concerned about Weinstein’s grounds for closing the Harpaz Affair regarding him that he filed a petition with the High Court to compel Weinstein to give him a special hearing so he could convince him to close the file on the grounds of “lack of any basis to have been suspected.”
Many called Weinstein’s opinion a legal “targeted assassination” of Mandelblit’s ambitions to succeed him.
And despite Mandelblit’s scholarly legal supporters, Weinstein might have had his way.
But former head prosecutor, and public sparring partner of Weinstein Moshe Lador, came to Mandelblit’s rescue.
Lador not only contradicted Weinstein’s evaluation of Mandelblit’s conduct, he said that Weinstein misapplied the law to the complex decisions Mandelblit confronted in the Harpaz Affair in balancing his duty as top IDF legal advisor with his duty to inform the attorney-general of matters relevant to the investigation.
Some have slammed Lador for getting involved and said that he does not represent the prosecution anymore now that he is retired from public service.
But for the selection committee vetting Mandelblit, Lador’s endorsement negated Weinstein’s “targeted assassination.”
Lador, if anything, was viewed as the prosecutor’s prosecutor and as the pinnacle of going after dishonesty and corruption.
If he disagreed with Weinstein and vouched for Mandelblit, it was assumed that many within the prosecution also did, even if they could not speak up due to chain of command issues.
The selection committee made it clear that this was their cover for ultimately passing over deciding if Mandelblit acted appropriately during the Harpaz Affair as an issue and “not taking sides” – which meant taking Mandelblit’s side.
Those criticizing the committee for side-stepping what they see as a fundamental problem wonder how Mandelblit will handle the next public corruption case against an Avigdor Liberman or Binyamin Ben Eliezer.
Will Mandelblit recuse himself from handling cases related to Netanyahu or will he appear to many to drag out and indirectly block Netanyahu investigations as many accuse Weinstein (who had represented the Netanyahus in private practice) of having done?
How can the symbol and enforcer of ethics for the state be someone who has a question mark about their ethics?
Supporters answer this latest question, pointing to Mandelblit’s record of aggressively prosecuting ethical issues in the IDF, such as against Maj. Gen. (res.) Yiftah Ron Tal.
In fact, some say Weinstein partially disliked Mandelblit because he was one of Ron Tal’s supporters in a hot dispute around a decade ago about handling a complex question of Ron Tal’s use of IDF subsidies for paying his rent.
Those supporters point to Mandelblit’s fearless pursuit of Ron Tal as a sign that no rank or office dissuades Mandelblit from prosecuting.
Critics say that Mandelblit’s prosecution of Ron Tal was opportunistic.
Regarding issues of religion and state, some are suspicious of Mandelblit being too close to religious parties because he is not merely orthodox, but became a “Baal Teshuva,” someone who changed to being Orthodox later in life, at the age of 26.
But these objections are perceived by many as superficial.
There have been no objections that he acted as a “religious MAG” when running the IDF’s legal division.
Anat Hoffman of Women of the Wall, credit’s Mandelblit as “fair and having integrity” in running the state task force for finding an arrangement for non-orthodox streams of Judaism to pray at the Western Wall – and this despite criticism of the ongoing general control of the Wall by the Haredi community.
Further, Mandelblit is said to have been inspired by Admor Baruch Shalom Halevi Ashleg who is viewed far more as a non-political Kabbalist than one connected to right-wing religious or Haredi politics.
Mandelblit also lives in politically moderate Petah Tikvah and attends a synagogue not known for being particularly ideological.
If there is one place where most view Mandelblit as a major asset, it is his experience in international law.
Netanyahu and Justice Minister Ayelet Shaked heaped praises on Mandelblit’s handling of war crimes investigations issues and of defending the IDF against delegitimization campaigns following the 2008-9 Gaza War and the UNHRC’s Goldstone Report.
Internally with top government lawyers, the position is similar with deep respect for Mandelblit.
If anything there could be a joke among government lawyers that they have gotten used to having free reign, and may need to answer more questions about policy recommendations from the next attorney-general since he has confidence and familiarity in the area.
In any event, with Israel and the IDF back near the war crimes dock of the International Criminal Court following the 2014 Gaza war, Mandelblit is viewed as a major asset for his expertise, strategy and communication skills in explaining Israel’s side to ICC Prosecution investigators.
Once again, with his former deputy running the MAG, it is also assumed that there will be unprecedentedly smooth cooperation, which was far from true sometimes between Weinstein and former MAG Maj. Gen. (res.) Danny Efroni.
On the critics’ side here, there is trouble deciding what to make of Mandelblit.
He was the MAG who reinstituted a long dormant policy of automatically and fully investigating every Palestinian death in the West Bank criminally, after years in which slow initial reviews were seen as having hampered investigations.
He also criminally investigated dozens of IDF personnel, including demoting a high-ranking general and other officers for their conduct during the 2008-9 Gaza war.
This brought him criticism from the Right, which protested outside his house.
Still, critics on the Left, say that he ultimately translated very few criminal investigations into indictments and that often his friendlier communications style did not change end results of cases, with too much whitewashing of IDF attacks on Palestinians in the West Bank.
On settlement policy where the attorney-general can have a decisive impact, Hagit Ofran of Peace Now views Mandelblit’s appointment as a move in the wrong direction.
She noted his heading Shaked’s committee for essentially seeking ways to implement aspects of the Levy Report to “legalize certain unauthorized outposts, even if they are on private Palestinian land.”
Ofran cited a December 31 legal brief by the state as proof that Mandelblit was more pro-settlement than Weinstein since the current attorney-general ruled “there was a legal block to adopt” some of Mandelblit’s ideas in a current petition before the High Court.
But Ofran suspects that in three weeks, once Mandelblit replaces Weinstein, that in the next bunch of petitions, the state may endorse paying compensation to Palestinians or giving them new and different lands in land swaps for land which is currently built on by unauthorized Jewish outposts.
For Ofran this would be a game-changer which could massively expand the settlement enterprise and endorse years of illegal tactics by settlers which the state until now has allowed in practice, but always declared illegal as a matter of principle.
Former top foreign ministry legal advisor Alan Baker, one of the authors of the Levy Report begged to differ.   
He said, “I really don't know Mandelblit…it's strange that they didn't invite me to participate, especially since Edmond Levy is no longer around!...As such it doesn't appear to me to be serious.”
Baker continued, “the reason the Levy report was sidelined was that Weinstein was personally offended when Bibi and [Yaacov] Neeman decided to appoint an external group of senior lawyers, thereby bypassing the state attorney’s office. He was furious, and was egged-on by the senior state attorney people.”
“He insisted that he be given the report for his approval, and only then would he allow it to be discussed and implemented. Since then he has been sitting on it,” commented Baker.
 
The former foreign ministry legal advisor recounted that, “When we presented the report to Bibi and Neeman, they were both extremely enthusiastic. Bibi was so happy he said ‘where have you people been up to now’!” also noting that Defense Minister Moshe Ya’alon claims he is implementing the report.
“Whether Mandelblit, once he's free from Weinstein's influence and personal pique at being bypassed, will decide to reopen the issue, remains to be seen,” he said.
He concluded, “the state attorney’s office came under some indirect criticism in the Levy Report, and thus I assume that they will make life difficult for Mandelblit should he decide to push its implementation in a more direct manner.”
How will Mandelblit’s relations be with the Knesset as opposed to Weinstein?
Probably more harmonious than the often acrimonious Weinstein-Knesset relationship.
Some of that may mean that Mandelblit may be more ready as a “man of the system” both in the MAG and as cabinet secretary, to go along with certain Knesset initiatives which Weinstein opposed since the Justice Ministry rank and file opposed.
But some of that may also mean that the Knesset will back down and respect Mandelblit more than it did Weinstein when he suggests it back off on an initiative of questionable legality.
For example, Weinstein alternated between trying to get the Knesset to water down the punitive aspects of its migrants policy, while each time telling people that he believed a revised policy would pass High Court muster.
Most would say that the Knesset, the High Court and Weinstein all failed to communicate sufficiently in that area, eschewing in years of challenges, voided policies and general disorder.
No one can blame Weinstein for this, but maybe Mandelblit might be able to avoid such stalemates.   
Where Mandelblit will come out on balancing national security and civil liberties which do not relate to the IDF, but too the civilian sector, is more uncertain.
He headed a state task force dealing with security in east Jerusalem, and many new policies such as letting police use Ruger refiles have come under criticism by human rights groups.
But it is unclear there if he was following Netanyahu directives as his representative, in which case, as the more independent attorney-general, he might take a different path, or whether he personally identified with those policies.
And that is one of the biggest dynamics here – the unfolding mystery of Mandelblit.
Virtually no one is certain of how to interpret his actions as cabinet secretary – where to attribute to him being Netanyahu’s man as part of his job description and where his actions were in line with his personal views.
As MAG he was more independent, but still bound by the military chain of command and dominated by national security concerns.
He may be partially indebted to Netanyahu for his appointment, but his six-year term as attorney-general leaves him unchecked, his view is broader and it gives him more independent power than he has ever had before.
So which paths will he choose? Will he be swayed more by politicians or by the legal establishment on controversial issues?
One way to answer this question is by looking at his overall career trajectory.
Had he not been plucked up by Netanyahu to become cabinet secretary, most predicted he would become a district court judge, a position he was actively seeking.
It stands to reason that in six years, he will hope to follow a line of former attorney-generals to the Supreme Court.
So while Mandelblit is closer to the politicians than some past attorney-generals, he will likely never tread too far from the legal establishment.
In that way, he may frustrate some on the Right who expect him to be “their guy” just as they expected Weinstein to be their guy when they selected him over career government lawyers, and critics on the Left may be surprised that he may take their side more than expected.