Beyond the veil of ignorance

One fact is clear: the moment the attorney-general announces his decision, half of the public will reject it, to the point of accusing him of serving political interests and not really seeking the tr

Avichai Mandelblit (photo credit: MARC ISRAEL SELLEM/THE JERUSALEM POST)
Avichai Mandelblit
A few months from now, Attorney-General Avichai Mandelblit will be announcing his decision in the several pending cases on Prime Minister Benjamin Netanyahu. Nobody knows what he will decide – indict or drop the charges. The investigators probed, evidence was collected, and plea bargains were signed with a few state’s witnesses: but from the attorney-general’s perspective, the information that has been amassed till now is still not sufficient to enable him to make a decision. So now we are on a break – a quiet interlude that allows for an unbiased discussion of the situation.<br /> <br /> One fact is clear: the moment the attorney-general announces his decision, half of the public will reject it, to the point of accusing him of serving political interests and not really seeking the truth. Paradoxically, as of today, Netanyahu’s guilt is not certain, but the attorney-general’s guilt is already engraved in stone in bold type, in both the political and media arenas. The only question is which half of the public will blame him.<br /> <br /> On the Right, the prevailing sentiment is that the legal system is a bastion of leftist liberals who take advantage of their power to further their ideological agenda. Therefore, if the attorney-general  decides to file an indictment, the Right will claim that the Left is exploiting the law as a political tool to oust a prime minister it has failed to unseat at the polls.<br /> <br /> On the other hand, if the attorney-general will be convinced that the evidence is insufficient for filing charges, the Left will accuse him of caving in to the government. Various personal allegations will be dredged up against him – he served under Netanyahu in the government, he meets with him regularly in private, he is religious and from a right-wing background, and more. Claims will be made that the prosecution has pulled its punches both to steer clear of the aggressive justice minister and in reaction to the widespread anger at the supposed “judicialization” of public life. <br /> <br /> The assault on the attorney-general from the Right, if he decides to file an indictment, will be led by politicians with bare fists, assisted by media outlets that we can already identify. And an attack from the Left, if no charges are filed, will be spearheaded by politicians and media outlets whose identity is already just as clear. Let us be candid: we can predict with a high degree of certainty what position will be taken by leading players in society – politicians, journalists, academics, and religious and social leaders – in reaction to the attorney-general’s professional decision on this delicate matter. The facts will be mobilized to serve each side’s a priori conclusion. <br /> <br /> Because the decision is still pending, now is a good time to state a plain and simple truth that does not seem to be welcome in the current reality: the attorney-general’s decision, when published, should be accepted without suspecting him of being motivated by extraneous considerations. In the absence of real and solid evidence of an abuse of his authority, we should all stand behind his decision, whatever it may be. The skeptics on the Left and Right – that is, almost all of us – may find this difficult; but supporting the legitimacy of the decision is the only option.<br /> <br /> The Left must acknowledge that the attorney-general has pursued the truth. This is clear from the long and unprecedented roster of state witnesses whose testimony was enlisted to broaden and deepen the investigation. The very fact that the attorney-general has already decided to file charges against the prime minister’s wife, should undercut the idea that he is a hired lackey. The attorney-general is a highly qualified public servant, with 30 years of experience in handling criminal cases. His professional suitability for the task at hand is crystal clear. Nor is he working alone. He is backed up and assisted by a large staff of professionals whose careers demonstrate their integrity and lack of bias.<br /> <br /> Nor does the Right have any valid reason to suspect that the decision is motivated by ideological reasons. The attorney-general ’s hand is not quick on the trigger. He has been conducting a deep and thorough investigation, despite the ceaseless populist pressures, including two years of weekly Saturday night demonstrations outside his home. When he concluded that the prime minister was not involved in the submarine affair, he wasted no time stating so publicly, without hesitation, despite the criticism.<br /> <br /> More important than all this, however, is the “zoom-out analysis” of the situation: The attorney-general is a cornerstone of our legal system. He is the member of the executive branch who is responsible for the protection of the rule of law. There is an ongoing debate if in his role as a legal adviser he is supposed to serve the government per se or the public interest at large. But there would seem to be no debate that in his role as the head of the state prosecution he must be totally independent. However, if his decision in the prime minister’s cases will be used to attack his legitimacy as a prosecutor, this might be the straw that breaks the camel’s back and leaves the attorney-general professionally vulnerable when wielding his authority to enforce criminal law. <br /> <br /> We do not have any alternative mechanism to the office of the attorney-general. All who hold the enforcement of criminal law dear must carefully weigh their stand, in principle and in practice, before they attack the legitimacy of these governmental agencies. <br /> <br /> I must stress the obvious: I am not arguing that it is forbidden to criticize and even object the professional decision of the attorney-general. But we must vigorously reject any attempt to undermine the integrity of the attorney-general and steer clear of any statement or insinuation of a miscarriage of justice, in any direction, in the absence of solid proof.<br /> <br /> Let us not forget the Midrash dictum: “Woe is the generation that judges its judges.”<br /> <br /> <em>The writer is vice president of the Israel Democracy Institute and a professor of law at Bar-Ilan University.</em><br />