THE DISCLOSURE that the police have compiled a file containing potentially criminal allegations against a string of government ministers and Knesset members raises serious questions about police procedure in a democracy. For example, is the document part of work in progress, or is it being held back for later use against politicians running for, or appointed to, high office? In other words, is it a case of democratic checks and balances in action, or something akin to J. Edgar Hoover’s FBI gathering data and compiling secret files as a source of power over active politicians? In Israel, the police gather both open and covert source intelligence during the undercover stage of criminal investigations. They are duty bound to gather data in the same way on suspected criminal offenses by government ministers, Knesset members and other senior public officials. This is clearly of paramount importance for the struggle against public corruption in Israel, which has grown significantly over the past two decades. Only thorough, deep and systematic intelligence gathering is likely to unearth acts of corruption by people in high places.
When the police find out about a suspected offense, they are obligated by law to open an investigation. However, the State Prosecution and the police have the authority to decide not to proceed further if, for example, the information they have is flimsy or has no evidentiary value in a court of law, or if, on preliminary examination, the allegations are refuted.A major problem in the Israeli system is that there is virtually no legal guidance for the gathering of intelligence and the conduct of undercover investigations. Electronic surveillance, or “bugging,” for which there are clear rules, is an exception.The gathering of data in a preliminary undercover stage before launching an open investigation has many advantages. Primarily, it enables greater freedom of action and better chances of unearthing evidence, precisely because of the suspect’s lack of awareness of what the police are doing.STANDARD PROCEDURE is meant to proceed as follows: Gathering data through open source intelligence (OSINT), operating regular or random informers (covert human intelligence sources (CHIS), electronic and other forms of surveillance, anonymous information, and so on. The information gathered is then stored in police data bases for further analysis and evaluation. Based on the results, decisions are taken with regard to additional intelligence gathering and the methods to be employed. When the covertly collected information ripens, or if external circumstances limit continued covert intelligence gathering (for example, if the suspect learns about the police action), the police then decide whether to launch an open public investigation. At this stage, the credibility of the sources and the reliability of the data are of vital importance. In cases of commercial, economic or political rivalries – which are liable to give rise to false allegations – early fleshing out and evaluating information is crucial.Government ministers, Knesset members and senior public officials who come under police scrutiny are usually suspected of white collar crime or corruption. In such cases, investigations are particularly complex and complicated, hence the special importance of the undercover covert intelligence gathering phase.It is worth pointing out that a large percentage of white collar crime is organized, with several people working together. If in the past most offenders in corruption scandals, including senior officials, acted on their own, over the past two decades many of these crimes were perpetrated by organized groups. This was the case with the “Holyland affair,” the Jerusalem high-rise building scandal involving former prime minister Ehud Olmert, and the earlier “Hirschson affair,” in which former finance minister Avraham Hirschson was convicted of embezzling public funds. In both cases, more than ten people were indicted.Knesset members and government ministers have parliamentary immunity (albeit limited) against arrest, search, indictment and more. But they do not have immunity against criminal investigation, where their legal standing is the same as that of as anyone else. Yet although the police do not require authorization to open investigations against Knesset members and cabinet ministers – including the gathering of covert intelligence – the customary procedure is to seek the attorney-general’s approval. Only in the case of investigation of a sitting prime minister is such approval mandatory.When the police gather information on “regular” criminals, they decide whether to launch an open investigation or continue covert intelligence gathering depending on the reliability of their sources, and whether they believe the trail is leading to hard evidence that will stand up in a court of law.When the suspects are senior officials, the police have an added public (if not legal) obligation to examine the data thoroughly, leaving no stone unturned, in order to validate or refute the allegations, except in cases in which the degree of suspicion inferred from the data is extremely low. This added obligation is a function of the democratic system, and the fundamental need to eliminate corruption among the people in power.Therefore the practice in the case in question of filing away information on government ministers or Knesset members without acting on it is patently inappropriate. If the information seems credible and the sources reliable, it is wrong to allow corrupt individuals to remain in high office; by the same token, it is also wrong to allow fabrications against senior officials to fester unrefuted. Unfortunately, police conduct in this case and in several others has apparently failed to meet these standards.ACCORDING TO what we know of the case in question, the police compiled a document cataloguing suspicions against government ministers and Knesset members, but without acting on the intelligence data. In other words, they did nothing to corroborate or refute the allegations. To sit on such a document without it serving as a basis for follow-up action is totally out of order. On the one hand, it opens up possibilities for blackmail and other abuses; it also enables possibly corrupt public officials to remain in high office and continue their corrupt conduct. Shelving the material without further action until people concerned are up for nomination or election to higher office is totally unacceptable.For example, in the bribery and corruption case against former cabinet minister Binyamin (Fouad) Ben-Eliezer, police sat for some time on hard incriminating evidence, which included a document showing the transfer of a large sum of money from one of the suspects in the case to Ben-Eliezer’s bank account. Only when Ben-Eliezer put forward his candidacy for president did the police suddenly remember the file and start investigating. After a brief enquiry, they found enough evidence to indict Ben-Eliezer and two others.Then there was the case of former general Gal Hirsch, in which police had data on suspected bribes in arms dealings with foreign countries.Although such allegations are of wide global interest, it was not until Hirsch was nominated to take over as chief of police that the criminal investigation department decided to shake the cobwebs off the file – perhaps to torpedo the appointment of a police chief from outside police ranks.Obviously, the police must be free to gather intelligence on criminal activities, all the more so in cases of suspected corruption involving senior officials and leading politicians. In such cases, though, the police must waste no time in examining the material as closely as possible – to be in a position to quickly close cases in which the allegations don’t stand up, or, on the contrary, to deepen the intelligence gathering and launch open investigations where the evidence warrants it. That said, gathering material Hoover-like on Knesset members and cabinet ministers as a specially targeted group, and then filing it away without further examination but for possible use later, is absolutely untenable, and needs to be rooted out without further ado. Dr Meir Gilboa, a former deputy head of the police serious crimes investigation department and former special adviser to the state comptroller, teaches in the Law Faculty at Bar Ilan University.