Israel’s High Court last week rejected petitions seeking to prevent the State Attorney’s Office from handling the Military Advocate General’s case in the Sde Teiman affair.

As a reminder, officials in the Attorney General’s Office and State Attorney’s Office covered up the leak of the doctored Sde Teiman video carried out by disgraced Military Advocate General Yifat Tomer-Yerushalmi by carrying out a feigned internal investigation and claiming that they were unsuccessful in identifying the source of the leak. Justice Minister Yariv Levin then demanded that an external party oversee the investigation. However, the High Court stymied those efforts by imposing impossibly harsh restrictions on the candidate’s qualifications. The Court then proceeded to disqualify Levin’s appointments twice, leading Levin to give up on his efforts for an untainted investigation.

In addition, there are deep suspicions that Attorney General Gali Baharav-Miara was deeply involved in the cover-up of the MAG affair. During his interrogation by the police over the lackluster internal investigation into the source of the leak, ex-Deputy Military Advocate General Brig. Gen Asael said that “all of my actions were guided and directed by the Attorney General’s office.” In addition, Baharav-Miara personally prevented the transfer of information on the case to Lahav 433.

Nonetheless, three justices—Yitzchak Amit and Justices David Mintz and Khaled Kabub—ruled that there were no grounds to order the police to carry out specific investigative actions.

Amit and Kabub also ruled that there were no grounds for judicial intervention in the opinion of the Justice Ministry’s legal adviser, according to which the State Attorney is no longer barred from overseeing the investigation into the affair, and that there were no grounds to grant Justice Minister Levin additional time to exercise his authority to appoint another official to oversee the investigation.

However, Justice Mintz disagreed with that conclusion. In his minority opinion, he held that a conditional order should be issued requiring Levin to explain why he was not exercising his authority to appoint an outside official to oversee the investigation in accordance with the conditions previously established by the High Court. Mintz believes that the previous ruling had been based on a clear premise that this was a sensitive investigation requiring outside oversight. According to him, the need for a supervisory official was evident both from the parties’ positions and from the justices’ statements and decisions in the previous proceeding.

Mintz noted the exceptional sensitivity of the affair, which, he said, concerns suspected involvement by the head of the IDF’s law enforcement system in leaking investigative materials and providing false information to the court. Under those circumstances, he held that appointing a supervisor from outside the Attorney General’s Office and the senior ranks of the State Attorney’s Office was not a secondary matter, but a prerequisite for creating an independent and reliable factual foundation free even from the appearance of a conflict of interest.

In his view, as long as the investigation had not been conducted under the oversight ordered by the High Court, it could not be determined that a new factual foundation had emerged that justified reconsidering whether the State Attorney was barred from involvement. He added that the police’s position that they had exhausted their investigative actions did not eliminate the need to examine the integrity of the process, even retroactively.

Petitioners Likud MK Avichai Boaron and the Lavi organization responded to the ruling by stating that they will seek a further hearing before an expanded panel of the High Court in an effort to overturn the decision by Amit and Kabub: “Such a fundamental issue, touching on the integrity of the investigation, conflicts of interest within the leadership of the law enforcement system and the public’s trust as a whole, cannot end with an incidental majority of two justices against such a forceful and well-reasoned minority opinion.

“We will not give up. We will not allow the affair to be whitewashed, and we will not agree to a situation in which those who should have been investigated, or whose system is involved in the affair, are also the ones overseeing the way it is closed. The truth must be investigated. And the investigation must be clean. Anyone who tries to legitimize a tainted investigation will encounter us through every legal and public avenue available to us.”

Finance Minister Betzalel Smotrich said: “Justice Yitzhak Amit’s corrupt decision to return the investigation of the Military Advocate General to the State Attorney as part of the whitewashing of the video leak, which caused unimaginable harm to our heroic IDF soldiers, is yet another expression of the ‘you scratch my back, I’ll scratch yours’ method practiced by the High Court justices, the State Attorney’s Office and the Attorney General.

“Instead of Gali Baharav-Miara sitting in the interrogation rooms herself, she will lead the investigation and ensure that her friend, who caused grave harm to the State of Israel, emerges from this serious affair unscathed. I call on those High Court justices who still have a little integrity left to stand up against this madness and not settle for side comments in a minority opinion.”

Law professor Prof. Moshe Cohen-Eliya responded to the ruling in a post entitled: “The Massive Cover-Up.”

“Burying the Military Advocate General affair is the most serious scandal in the history of the High Court,” he wrote. “And the person responsible for this grave corruption is Yitzchak Amit.”

“When the affair broke, Amit panicked. He distanced himself from the issue, and therefore appointed a panel that was less activist than the hyper-activist group to which he belonged (Amit, Barak-Erez, Grosskopf, Kabub and Ronen). The panel consisted of Wilner, Stein, and Kanfi-Steinitz. That panel established the ‘Boaron precedent,’ which found a broad institutional conflict of interest applying to the State Attorney’s Office, due to the involvement of senior officials in the Attorney General’s Office and the State Attorney’s Office in overseeing the inquiry into the leak of the Sde Teiman video to journalist Guy Peleg.

“That ruling sent Amit (and the juristocracy in the State Attorney’s Office) into shock. Amit therefore immediately decided to step back in and take control of the matter. Because he cannot afford the downfall of Baharav-Miara, who constantly protects him.

“And that is where the erosion of the “Boaron precedent” began. First, the supposedly conservative panel itself imposed nearly impossible conditions on Levin in his search for an attorney to oversee the investigation. Thus, although the panel ruled that Levin was authorized, under the exceptional circumstances, to transfer the supervisory authority to another official, it also ruled that Asher Kula, whom Levin had appointed, could not take the position because of the statutory provisions that apply to him as the Ombudsman for Complaints Against Judges.

“And when Levin appointed retired judge Yosef Ben-Hamo, Amit stepped into the picture quite aggressively in order to block Levin and completely gut the Boaron precedent. As part of a request for an additional hearing on the ruling concerning Kula, Amit, sitting as a single judge, issued a temporary injunction freezing Ben-Hamo’s appointment on the grounds of ‘preserving the existing situation.’

“Amit now needed a legal avenue to bury the ‘Boaron precedent,’ and so he granted both requests for an additional hearing — filed by the Democracy Guard and the State Attorney’s Office — on the fundamental issues decided in the original ruling: the applicability of Section 23A(d) of the Civil Service Law and the scope of the justice minister’s authority under that provision in a specific criminal investigation, as well as the scope of the rule concerning a sweeping or systemic conflict of interest. He ruled that the case would be heard by all 11 High Court justices.

“An empirical study by Prof. Yehonatan Givati and Israel Rosenberg found that a justice who granted a request for an additional hearing voted against the original ruling in 87% of cases, compared with 65% among other justices who joined the expanded panel. In other words, Amit is seeking to bury the Boaron precedent through the additional hearing.

“And now to the damage in this specific case: How do you completely bury the Sde Teiman affair? After attorney Yael Kotik gave in to the juristocracy, which sought to allow State Attorney Amit Isman — who had been included in the institutional conflict of interest established by the Boaron precedent at the stage of overseeing the investigation — to resume handling the case after police announced that they had completed their investigative actions, a petition was filed with the High Court. In her updated legal opinion, Kotik determined that in light of the new factual basis, Isman was no longer barred from handling the case.

“Amit then stepped into the picture again, and this time a panel was appointed consisting of himself and Kabub — two members of the same hyper-activist camp — with Dovid Mintz added alongside them as a fig leaf (in place of Sohlberg). As expected, Amit and Kabub formed the majority on the central issues: They ruled that there was no basis to intervene in Kotik’s legal opinion that Isman was no longer barred from overseeing the investigation, and that Levin should not be given additional time to appoint another supervisory official. Mintz remained in the minority and held that a conditional order should be issued requiring Levin to explain why he had not appointed a supervisory official. All Dovid Mintz could do was take a swipe at Amit for effectively burying the Boaron precedent — which is precisely what Amit intends to do once and for all in the additional hearing.

“Never has such a corrupt judge served on the Supreme Court. And certainly never has there been a High Court president as manipulative as Yitzchak Amit.

“There is no justice in the High Court of Justice. All there is is manipulation of judicial panels whose sole purpose is to preserve the old hegemony, while trampling every principle of democracy and denying justice to the IDF soldiers who were harmed by the blood libel that the Military Advocate General pinned on them through the grave act in which she was involved.

“Because the only thing that interested Amit was how to get Baharav-Miara off the hook so that she could continue protecting him — at the expense of IDF soldiers and at the expense of the State of Israel.”

(YWN Israel Desk—Jerusalem)