Israel's new A-G holds the country’s future in her hands

LEGAL AFFAIRS: From Pegasus to the Netanyahu trial and from the ICC to coronavirus, Gali Baharav-Miara will have to hit the ground running as the incoming attorney-general.

 NEWLY APPOINTED Attorney-General Gali Baharav-Miara waves during a welcome ceremony for her in Jerusalem this week.  (photo credit: YONATAN SINDEL/FLASH90)
NEWLY APPOINTED Attorney-General Gali Baharav-Miara waves during a welcome ceremony for her in Jerusalem this week.
(photo credit: YONATAN SINDEL/FLASH90)

Incoming Attorney-General Gali Baharav-Miara is a largely unknown quantity to most of the public.

She may decide everything from how to handle the Pegasus police spying scandal, to the fate of former prime minister Benjamin Netanyahu in his public corruption trial, to coronavirus policy, to confronting the International Criminal Court (ICC), to settlement policy and to religion and state issues.

Baharav-Miara may also be the key to the dream of the right wing and of Justice Minister Gideon Sa’ar to splitting up the powers of the attorney-general, such that her prosecution powers may devolve to State Attorney Amit Aisman.

That and the fact that she is one of the key officials controlling the country’s future are reasons to learn all we can about her.

She has been a private-sector lawyer at Tadmor-Levy & Co. for the last six years.

 Justice Minister Gideon Sa'ar seen alongside Likud's Yuli Edelstein (credit: MIRIAM ALSTER/FLASH90) Justice Minister Gideon Sa'ar seen alongside Likud's Yuli Edelstein (credit: MIRIAM ALSTER/FLASH90)

But before that she worked for over three decades in the Justice Ministry, including from 2006 to 2015 heading the more than 200-person Tel Aviv Civil Division – the largest civil division in the country.

During that time, she handled the full range of civil issues, from labor disputes to land issues to defending against West Bank Palestinian civil lawsuits against the State of Israel.

In 2018, she was asked by Defense Minister Benny Gantz to write a legal brief on his behalf to defend against a war crimes case in the Netherlands national court system.

In May 2019, she signed on to a public statement along with other top former Justice Ministry officials.

It opposed initiatives to grant the Knesset an override of the Supreme Court or to grant then-prime minister Netanyahu immunity from prosecution as head of the government.

That is what is on her impressive résumé on paper. But going a little broader, there are some other biographical facts that give some insight into who she is.

During her army service, from 1978 to 1980, she served in IDF intelligence. She then married Zion Miara, who in the past served for decades in operations in Israel’s defense establishment and now has ALS.

Reading between the lines, Baharav-Miara is a woman who is comfortable with the defense and intelligence establishments.

Though she comes from and lives in the “Tel Aviv nation” part of the country in terms of culture, she seems to be quite similar to Sa’ar’s style of coming from within the system to embrace somewhat conservative/rogue ideas.

For example, splitting the attorney-general’s powers to delegate prosecution powers to the State Attorney is overwhelmingly unpopular within the Justice Ministry.

Basically, every attorney-general, including outgoing Avichai Mandelblit, has opposed this split.

But there is basically no way Baharav-Miara would oppose such a split, given that Sa’ar picked her.

Further, her complete lack of criminal law experience, as opposed to the usual pick of a candidate with heavy criminal law experience, directly facilitates the split.

Who is she to tell career criminal prosecutors that they are making the wrong call?

She is also ready for the hardball environment that she is being thrown into.

Though she is not necessarily as experienced with politicians and the media as Mandelblit had been (he had served as cabinet secretary and the IDF’s chief lawyer before taking office), she has handled decades of continuing a high-powered career while also caring for her ailing husband.

In the years before he was sick, when he was in operations, she also probably experienced more than a few sleepless nights not knowing whether he would return.

These are the kinds of life experiences that can make the difference in those moments where the attorney-general is alone in making history-altering decisions under unspeakable pressures.

Mandelblit noted in one of his outgoing speeches that unlike his decades in the IDF where he and others could always draw strength from those in the ranks both above and below him, the attorney-general has no one above besides fidelity to the law and doing the right thing.

Whether Baharav-Miara has and will develop the political-tactical instincts that can be helpful to an attorney-general in understanding politicians’ needs, styles and timing, is more of a developing question.

It will help that, at least for now, she has the enthusiastic backing of Sa’ar.

WHAT ABOUT some of the specific decisions, such as the Netanyahu trial?

There are many options.

She could wash her hands of it, say it is a train that started years before she entered office and that all she needs to do is stay out of the way of the prosecutors running the case.

If Netanyahu’s defense team tries to reignite plea bargain negotiations, she could take the position that she will agree only to terms the prosecution team would agree to.

The Jerusalem Post reported on Sunday that such terms would require not only Netanyahu exiting politics for a minimum of seven years, but also a public confession on his part to the majority of the prosecution’s narrative.

It seems unlikely that she would agree to a plea deal more lenient than that agreed to by Mandelblit.

One of the main reasons cited that Sa’ar picked her over Deputy Attorney-General Raz Nizri, who was more senior and higher profile, was that Nizri had voted for less serious charges against Netanyahu. He was viewed as being a risk to agree to a more lenient plea deal.

There is an entirely different approach she could take.

If she and Sa’ar are looking to give away the attorney-general’s prosecutor powers, she could give the decision over Netanyahu’s fate to Aisman.

Netanyahu spent several months trying to block Aisman’s appointment.

There is no expectation that Aisman would give Netanyahu a deal more lenient than what Mandelblit was offering.

REGARDING THE Pegasus police cellphone hacking affair, Baharav-Miara can be expected to take no prisoners.

All of it happened before her term. In her very strongly worded message in her inaugural speech this week, she promised to act decisively to restore the public’s faith, even if that meant shaking up law enforcement.

If only three cellphones out of the 26 persons listed by Calcalist were targeted by the police cyber unit and there was court approval in all cases, she will doubtless stand by top law enforcement officials.

But if there were any police officials who went rogue or who have been lying about their involvement, expect no mercy from her in taking them down.

There are some controversial legal issues that she may also need to interpret in this area.

The Post understands that even among law enforcement officials there are some different understandings about what is permitted to do with NSO’s Pegasus or similar technologies.

Some believe that if a court can approve physical access to someone’s cellphone and computer or the bugging of a person’s telephone conversations, the remote hacking of a cellphone is exactly the same.

Others view hacking a cellphone as far more problematic. Absent very strong parameters, it allows far more access to far more different kinds of content. Also, it can be harder to set time limits in the way that court orders usually might be limited to a week or 30 days.

In their narrative, the cellphone hacking business should be much more reserved for the Shin Bet (Israel Security Agency), which has special powers approved by the Knesset.

Rather, the police cyber unit’s hacking should be more reserved to battling online hackers and crime.

What about hacking a cellphone if there was prior physical access to that phone via a proper court order? And what if a cellphone was connected or synchronized with a computer, such as with WhatsApp Web?

These might be gray issues since there is currently no real law to regulate the police cyber unit in the first place, and some of the involved technologies are very new.

Baharav-Miara will need to sort through these issues not only regarding allegations made by Calcalist in the past, but paving the way for what the proper balance should be in the future.

REGARDING THE ICC, her experience defending against Palestinian lawsuits in Israel and defending Gantz in the Netherlands may give her a significant role.

Mandelblit was highly involved because of his past in the IDF dealing with war crimes issues, but his predecessor, Yehuda Weinstein, had a more hands-off approach.

Little is known about her corona policy views.

But Sa’ar and his party have very strong views in favor of taking on some risk to keep the economy and schools open. As his pick, she would be expected not to block these policies.

The same can be said for settlement policy.

Mandelblit ruled that the Settlements Law was unconstitutional, a position later endorsed by the Supreme Court. But other than that, he went out of his way to try to facilitate government settlement expansion ideas, such as recently regarding rebuilding the Evyatar outpost.

Nothing is known about her views about religion and state.

But coming from “Tel Aviv nation” and being Sa’ar’s pick, she can be expected to assist the government in various reforms going against the will of the state’s ultra-Orthodox parties.

Regarding organized crime, the Arab sector violence wave, the impact of social media on elections, and controversial questions like the handling of the killing of settler Ahuvia Sandak or of special-needs Palestinian Iyad Halak, there is no reason to expect her to act differently than her predecessors.

One thing is for sure. With Pegasus and the Netanyahu case bearing down on her, Baharav-Miara will need to skip the “first 100 days” of grace and jump right into the deep end.