There are so many fateful battles going on between the government of Prime Minister Benjamin Netanyahu on one side and the government’s professional level echelon, especially in law and security, on the other side, that it can be hard to keep track.
But the government’s decision on Sunday to create a new commission of inquiry to check into the police’s alleged illegal hacking of citizens’ cellphones set up one of the most staggering battles to date.
The commission can theoretically intervene regarding pending criminal cases, including Netanyahu’s public corruption trial.
The decision was opposed by the Shin Bet (Israel Security Agency), the police, the Attorney-General’s Office, the prosecution, and the National Security Council.
Some opposed the decision because it could risk exposing the Shin Bet’s sources and methods that it uses to combat terrorism.
Others opposed the decision out of fear that Netanyahu’s lieutenants would try to use the platform to unlawfully derail his trial in one fell swoop.
On the government’s side is the fact that the police initially acted as if they had done no wrong, and even the later probe by former attorney-general Avichai Mandelblit and deputy attorney-general Amit Merari downplayed what was a large volume of cases where the police violated citizens’ privacy rights.
Justice Minister Yariv Levin correctly states that as a general matter, the Attorney-General’s Office could be seen as having a conflict of interest in probing itself and that an external probe has a better chance of rooting out the errors
But let’s explore all of these claims in more depth.
The Shin Bet also hacks phones, but is that just as bad?
One would think that the Shin Bet’s concerns should trump any general transparency concerns absent evidence that the agency itself abused its powers in a way that deeply harms the public interest.
Life and death national security issues in Israel tend to trump values like privacy rights, even if the latter are important and can be used to hold off the police from certain investigative activities.
Part of the confusion here is that, at least this time, no one is accusing the Shin Bet of any law-breaking and the agency does not even use the same cellphone hacking program as the police.
The Shin Bet uses something more analogous to the full power of NSO Group’s Pegasus, which can hack just about all metadata and information on a cellphone with very few limits.
In contrast, the police were using “Ciphon,” a reduced power version of Pegasus, which entirely or mostly was limited to a carefully regulated warrant.
So maybe this has nothing to do with the Shin Bet, as they are using a different phone-hacking program.
Part of the problem is that Ciphon seems to be more powerful than some in law enforcement initially admitted and was able to gobble up a whole host of data beyond the confines of the warrants that the police obtained.
So maybe the police and Shin Bet’s phone hacking programs have more in common than some admit and the more terrorists or criminal organizations learn about the weaknesses and capabilities of one, the more they can learn how to outwit both.
Often the Shin Bet prevents a terror attack by intercepting a text message from a cellphone it remotely hacked.
Do we want to endanger that capability?
Presumably, the Shin Bet, represented by Attorney-General Gali Baharav-Miara, will sooner go to the High Court of Justice to protect its capabilities from the government commission than roll over.
What about pending criminal cases?
If the attorney-general could have a conflict and if the police or prosecution are winning cases having abused the law, whether against a regular citizen, or against Netanyahu himself, why stop the commission from intervening?
While this argument has merit, the context is crucial here.
The fact is that the police, prosecution, and attorney-general were hacking cellphones for some years during the former government of Netanyahu.
Netanyahu and some of his associates say they did not know, but essentially they could be probing themselves.
In fact, they did not seem to care about privacy rights when the Likud leaked millions of voters’ information into the public sphere during one election cycle, or until it became clear that the issue could help Netanyahu in his trial.
It happened to be that the Calcalist media outlet blew the top off the story to the public during the government of Naftali Bennett.
But the alleged abuses were not during his government, so his commission, which included the Mossad, which would seem to have no horse in this race, had no reason to hold back or cover anything up.
That is, unless they wanted to improperly keep the Netanyahu trial going despite violations of Netanyahu’s rights.
Here is where the details really matter.
The court in the Netanyahu case froze the trial back in 2022 when the Pegasus scandal broke.
It extensively examined the issue and found that though the police had violated witness Shlomo Filber’s rights in one case, nothing from that violation was used by the prosecution in their indictment of Netanyahu.
So actually, the Pegasus scandal already cannot impact Netanyahu’s trial because the court has already ruled.
Theoretically, could the government probe find new additional violations against Netanyahu which could decisively end his trial?
Yes, but that would ignore that most of the evidence against him comes from state’s witnesses who turned on him and provided their own verbal incriminating statements against him.
In the end, Baharav-Miara will also likely go to the High Court before turning over information about a pending case to the commission, let alone information that Netanyahu could improperly use to undermine the case against him.
There is no universe where it is okay for a defendant to be able to see the internal strategy of the prosecution against him. The fact that he did not vote about creating the commission seems irrelevant, given that Levin is doing all of this on his behalf.
So very likely, the issue will go to the High Court. Or if the High Court has already ruled in some way on other controversial pending petitions which have changed the constitutional balance of power between the executive and the judiciary, the government’s committee may back down.
Or both sides may let the issue sit before the High Court for an extended period without a resolution.
The commission itself was certainly not assembled in a way that would free it of claims of a conflict.
Levin appointed a distinguished former Jerusalem district court judge, Moshe Drori. But Drori is a rare judge who has gone on record in favor of the judicial overhaul and against the Netanyahu cases.
Public Defender Anat Meyassed Cnaan is on record as being pro-removing the tool from use entirely.
That is a legitimate position, but this is one of the only times that the Netanyahu government is taking the public defender, which they ignore on numerous Palestinian and other issues, more seriously – and it just happens to matter personally to Netanyahu.
Former senior Shin Bet official Shalom Ben Hanan’s views on the issue are unknown, but even if he is more favorable to the Shin Bet and law enforcement, he is set up to be outvoted.
So there will probably be another crisis between the legal and security establishments and the government.
At some point, the commission may just go ahead and complete its report, slamming the security and legal establishment for being allegedly intransigent, and it will give Netanyahu another public way to claim he has been mistreated.
But if Netanyahu hoped that forming this committee would pressure the prosecution into a more favorable plea deal for him to avoid another legal battle, then he probably does not realize how much his other actions have hardened the legal establishment’s resolve to his different forms of pressure.
One of the sad things about all of this is that there probably were more abuses against others besides Netanyahu, whose cases may not get fully reviewed because they will be caught up in these higher-stakes issues regarding the prime minister and the Shin Bet.