Civil Fights: Why Winograd boosted Olmert's popularity

If no legal official declares an office-holder unfit to serve, then by default he is deemed morally and professionally fit.

olmert WAIT 298.88 (photo credit: )
olmert WAIT 298.88
(photo credit: )
Perhaps the strangest result of the Winograd report's publication was the boost it gave to Ehud Olmert's popularity. A Ma'ariv poll conducted the next day found that 42 percent of Israelis thought he should remain prime minister, and a Haaretz poll put the number at 37 percent. Yet in previous polls, this figure had hovered around 20 percent. The change would be understandable had the report significantly altered our understanding of the Second Lebanon War. But in fact, it largely confirmed what Israelis already knew: that the war was a fiasco, for which Olmert's government bore substantial responsibility. Admittedly, the report's summary sometimes bent over backward to downplay this responsibility. For instance, after acknowledging that "equivocation" between a "short, painful" strike and a "large ground operation" had impeded the war effort, and that "the choice between these options was within the exclusive political discretion of the government," it then blamed "both the political and the military echelon [for] not deciding between the two options." Similarly, it legitimized Olmert's decision to a launch a ground operation 60 hours before the cease-fire was due to start, despite noting that there had been no "serious consideration of the question whether it was reasonable to expect military achievements in 60 hours that could have contributed meaningfully to any of the goals of the operation." Yet how could it be reasonable to launch any operation without considering whether the time available suffices to achieve its goals? But even if such dabs of whitewash occasionally blurred the otherwise damning findings, the fact remains that Israelis lived through this war; they experienced in their own flesh what the report recapitulates in dry prose. They have all the information needed to make their own judgment, regardless of the report. Why, then, should Olmert's popularity suddenly surge just because the report, like any serious investigation, was nuanced rather than unrelieved black? THE ANSWER may lie in the uniqueness of Israeli inquiry commissions. Several recent comparative studies - by the Israel Democracy Institute, the Knesset's research division and others - reveal that in other democracies, inquiry commissions stick to examining the facts; they may not assign guilt or make personal recommendations. Moreover, they are appointed by the government and have no legal status, so the government is not required to accept their conclusions. In Israel, however, the Supreme Court president appoints most inquiry commissions, giving them quasi-judicial status. Such commissions can assign blame and recommend dismissals, and usually do. And the court has held that while governments may reject a commission's systemic recommendations, since policy-making is a core governmental responsibility, they have almost no right to reject recommendations concerning specific individuals, which are treated as quasi-judicial rulings. The Winograd Committee was doubly unusual. First, it was appointed by the government. Second, and more importantly, it refused to blame specific individuals or recommend dismissals, declaring - properly - that this is for the public to decide. Nevertheless, it operated under the shadow of 60 years in which Israelis have grown used to allowing quasi-judicial commissions to make such decisions for them. And since in judicial proceedings, anything short of conviction constitutes acquittal, Winograd's refusal to explicitly convict Olmert and sentence him to dismissal is inevitably perceived by some Israelis as an acquittal. AS CONSTITUTIONAL scholar Amnon Rubinstein aptly noted last week, this is merely one aspect of "the legalization of life in Israel," in which major political decisions, at both the personal and policy levels, are increasingly handed over to the legal establishment. The result is that the all-important concept of "legal but improper" is gradually disappearing: If a policy, or an individual's behavior, is not sufficiently egregious to be deemed illegal, it is ipso facto deemed acceptable. A classic example occurred in 1997, when then justice minister Tzahi Hanegbi falsely told the cabinet that the Supreme Court president had approved his nominee for attorney-general. In any normal country, a minister who lied to the cabinet about a major issue in his purview would be sacked. And initially, there were demands for Hanegbi's dismissal. But after the attorney-general concluded that his behavior, though despicable, was not criminal, and the High Court of Justice declined to intervene, these demands evaporated almost overnight - as if these rulings had retroactively made his behavior appropriate. OLMERT'S post-Winograd popularity surge follows the same pattern. And it stems from the fact that often, legal officials have declared people unfit to serve on moral or professional (as opposed to legal) grounds. The court-appointed Kahan Commission declared Ariel Sharon "indirectly responsible" for a 1982 massacre committed by Lebanese militiamen in Beirut, and therefore unfit to be defense minister. In 1996, attorney-general Michael Ben-Yair declared Rafael Eitan unfit to serve as police minister (though not agriculture minister) due to a criminal investigation (Eitan was later completely cleared). The High Court ruled Yossi Ginossar unfit to be Housing Ministry director-general in 1992 because of various unsavory incidents in his past. The court-appointed Or Commission declared Shlomo Ben-Ami unfit to serve as police minister because he mishandled the Arab riots of October 2000. And the list could go on. The pernicious result is that the public has grown accustomed to legal officials making such decisions on its behalf. And therefore, it has lost the habit of making them itself. If no legal official declares an office-holder unfit to serve, then by default, he is deemed morally and professionally fit. The Winograd Committee rejected this logic - and in that lay the most important recommendation of its entire report. Essentially, what it told the public is: Grow up. You don't need us to tell you whether Olmert is unfit to serve; look at the war's conduct and draw your own conclusions. Admittedly, that is unlikely to happen: People do not kick a 60-year habit of abdicating responsibility overnight. Yet at the same time, one cannot cure an addiction by feeding it. By refusing to make political judgments that are properly the public's job, the committee did what it could to set Israeli political life on the road to rehabilitation. Whether the process continues is largely up to us.