Chapter 3—
Israel, 1948–1953

From the District Court to the Supreme Court

What happens at twilight, after a colonial power has left but the sovereign government is barely installed? The British behaved like shopkeepers closing a store: they locked the court buildings and kept the keys. The shutdown symbolized not only the British refusal to choose between Arabs and Jews but also the suspension of law and order.

Overnight Palestine had become Israel and its citizens Israelis. When Judges Agranat and Landau, one week after Independence, arrived at the court, they found the chambers shut and deserted. Landau remembered Agranat's personally kicking the door open, giving a little push to set the wheels of justice in motion again.^[1] Agranat remembered instructing the clerks to kick the door. Elated by the sweet taste of Independence, they were not prepared, in Agranat's words, to "let an Israeli court be closed even for one day." The episode serves as a metaphor for the condition of Israeli justice in 1948. The doors of the legal system had to be forced open, and the very act of breaking through was imbued with the symbolism of a new era. Still, the structures wherefrom justice was to be dispensed remained the same.

The question of the future of the judiciary now became acute. With the departure of the English and Arab judges, the courts of Haifa shrank to a small fraction of their previous size. Five judges remained to serve the population. Other judicial districts in Israel experienced a similar collapse; only Tel Aviv, the one wholly Jewish city, was not affected. An entire

judicial corps had to be assembled—and quickly. The burden fell on Pinhas Rosen, minister of justice in the provisional government.

Rosen's appointment as minister of justice is itself revealing. In the coalition government he represented the tiny Progressive Party, and putting him in charge of the justice portfolio indicated that law was not a priority for MAPAI, David Ben-Gurion's ruling party. Rosen, a prominent lawyer and an active Zionist, was thought fit for the job because, among other reasons, of his German background.^[2] In the hierarchy of the ethnic groups that composed the 650,000 members of the Yishuv, German Jews ranked highest in terms of refined legal culture and respect for law and order. In Tel Aviv, headquarters of the provisional government,^[3] Rosen and his staff were laying the foundations for Israel's judiciary.

Rosen's attorney general was Jacob S. Shapiro, a short and savvy man whose reputation soared when he represented the Yishuv in trials related to illegal Jewish immigration by sea. In previous years Shapiro had handled the Haifa business of Rosen's law firm and had used its Jerusalem offices. Apart from a close professional relationship, which must have made the choice more appealing, Shapiro had another important asset: he ranked high in MAPAI circles and enjoyed the confidence of BenGurion. Rosen and Shapiro complemented each other well. If Rosen represented the German component, the Russian-born Shapiro represented the less formal, more peppery, Eastern European yiddishkeit . Also, whereas Rosen did not conceal his clear preference for the continental legal model, Shapiro was overtly partial to the English way of doing things.

A longtime Haifa resident, Shapiro planned Rosen's visit to Haifa in June 1948, to acquaint the minister of justice with the bar and to initiate judicial appointments. Agranat had been Shapiro's close friend since they prepared for the bar examination in 1933, and the two had discussed the impending changes prior to Rosen's visit. Years later, Shapiro remembered Agranat's threatening to resign if he were not appointed president of the district court. "For the first time, I saw that Shimon had an appreciation of himself," Shapiro mused to me in a interview. In a way, Shapiro was right. Agranat was an ambitious man, but he was too proud to make explicit demands. It may well be that the volatility of the situation propelled him to overcome his inhibitions and to insist on a grand promotion. Shapiro, who had admired Agranat's learned opinions as a magistrate, had even grander plans for his friend. He lobbied Rosen to include Agranat among the five appointees to Israel's Supreme Court. One item on Rosen's agenda during his visit to Haifa was to assess Agranat's candidacy for that position.^[4]

Agranat liked what he heard from Rosen that afternoon as Haifa's Jewish judges and lawyers assembled to greet the minister. Rosen spoke of extensive legal reform, of plans for a constitution and for the fulfillment of the Zionist aspiration to create a just society. He also spoke—thereby endearing himself to Agranat—against the excessive formalism of the bar. "There was a lawyer among us," Agranat recalled Rosen's telling his audience, "who sought to invalidate a contract on the ground that it lacked the required stamps. What a great legal argument," Rosen added, sarcastically. "The man's gravestone will read 'here is buried the man of stamps.'" After a personal discussion with Agranat, Rosen was sufficiently impressed to inform him that he would be a nominee to the impending Supreme Court.

For once, Agranat felt the intoxicating sensation of having one's wildest dreams fulfilled—the end of foreign domination, the creation of the new Israeli state, and now ascension to the highest post a judge could have. He was the happiest of fathers, as he celebrated the bar mitzvah of Israel, his older son. The press announced the provisional government's list of five candidates for the Court, including Agranat.^[5] Congratulations poured in. At home, a mini-insurrection raged as the Agranat children announced that they would not leave their hometown. The sensation of success was spreading when a telephone call summoned Agranat to meet with Rosen in Tel Aviv.

The Ministry of Justice did not yet have its own headquarters. Official business was conducted in hotels; and over coffee at the Dan Hotel, Rosen delivered the bitter news. The government had decided to drop Agranat's nomination. For political reasons, it was important to obtain the broadest support for the nominations from the Provisional State Council (which preceded the Knesset). The General Zionists threatened to oppose any list that failed to include its own candidate, Shneur Z. Cheshin.^[6] Rosen felt compelled to sacrifice Agranat in order to obtain the unanimous vote. Agranat recalled his frustration. The seeming insulation of the judiciary from political considerations could not shelter him from the ugly hand of politics. Indignant, his immediate reaction was to cut all ties to the courts. He offered his resignation. But Rosen would not hear of it; even being considered for the Supreme Court was a great honor, Rosen said, trying to soften the blow. The district court was Agranat's; and in the near future, Rosen gently hinted, if the cabinet approved the expansion of the Court, Agranat would be the sixth nominee. Rosen's warmth and empathy helped calm Agranat. "Stay," Rosen implored. "Let us go to hear the Philharmonic tonight." Israel's Philharmonic Orchestra symbolized the

bond between the West and the reconstructed Zionist civilization. An invitation to listen to its music together was both a reminder of the sensibilities Rosen and Agranat shared and an assurance of personal friendship despite the pain and public embarrassment Rosen just inflicted on Agranat. Agranat stayed. The sound of Peter and the Wolf helped him regain his perspective. Armed with his appointment as president of the district court, he returned to Haifa.

Inaugurating the District Court

One argument for preferring Cheshin over Agranat was seniority. Cheshin had been a district court judge since 1944, whereas Agranat had only served as a magistrate. Considerations of seniority, however, did not prevent Rosen from bypassing the two Jewish district court judges in Haifa in favor of Agranat. Judge Aharon Shams, widely considered an anti-Zionist, was undergoing quasi-official disciplinary proceedings for allegedly having helped his son avoid military service. Why Judge Ya'acov Azoulai, another Sephardi, was bypassed is less clear. The Ministry of Justice had insisted that the preference was motivated by considerations of merit alone.^[7]

Presiding over men who only yesterday were his superiors was an awkward task. Agranat's modesty and gentle nature enabled him to provide a smooth start. Intuitively he knew that teamwork would diffuse the resentment his elevation must have generated. He sought Azoulai's advice about the pending inauguration of the court; he also suggested that the two visit Judge Shams, whose illness had confined him to bed. Azoulai also rose to the occasion, and the first district court in Israeli Haifa was ready for inauguration.

The police offered a special guard of honor. A taxi was arranged to drive the judges, because Agranat believed that arrival by bus would undercut the solemnity of the occasion. Because, as a magistrate, he did not have the privilege of wearing a judicial robe, he rummaged through the judicial chambers and was relieved to find a gown, red ribboned around the collar and sleeves, left behind by a British judge.^[8] In full attire and with modest pomp, President Agranat led the judges past the saluting guard and into the judicial chambers. The court was officially open for judicial business.

The Agranats now discovered the privileges associated with public office. A telephone—a very scarce commodity in Israel of 1948—was in-

stalled in their apartment. As a senior judge, Agranat was able to persuade the army to postpone the induction of the family's maid into military service. With four small children, domestic help was crucial for Carmel. Otherwise, Agranat continued his old lifestyle. He remained a workaholic, and his life continued to revolve around his judicial opinions. Now, however, he was in a position of leadership, and his opinions could make more of a difference.

One of his early opinions, reported by Ha-Arets, invalidated a conviction issued by his Mandatory predecessor. Two weeks before the end of the Mandate, the English president of the district court had convicted a man of violating the price-control laws. The conviction was entered on the basis of a guilty plea by someone who had claimed to represent the accused. Agranat invalidated the conviction, seizing the opportunity to assert the commitment of the new state to justice and to ground this commitment in the Jewish ethos. A cardinal principle of justice, he announced, was that a guilty plea should come only from the accused himself. This rule should be zealously guarded, Agranat said, particularly because in Jewish law even a guilty plea by the accused himself would not suffice for conviction.^[9] Agranat also tried to disconnect the emerging Israeli system from the Mandate by avoiding the death penalty prescribed for certain crimes by the criminal code. In the next two years he would lobby the Knesset to abolish the death penalty. The excitement of the establishment of the state had rekindled his deep commitment to social and legal reform. He was preparing to contribute his share to turning Israel into the model state he had always dreamed it would become.

The Inauguration of the Supreme Court

Four months after the establishment of Israel, Agranat attended the ceremony inaugurating the Supreme Court. In August 1948, when the Ministry of Justice announced that the Supreme Court would occupy the building that had previously housed the Supreme Court of Palestine, Jerusalem was a divided city, its Jewish Quarter and Western Wall under Jordanian control and its population shaken and distraught. The long siege and the ferocious war had taken their toll. The building designated for the Court was located in the Russian Compound, less than a five-minute walk from the cease-fire line. On lease from the White Russian Church, the hostel-turned-court was deficient in both decor and facilities. Why such a humble home for the highest court of the land?

In the summer of 1948, Tel Aviv was the indisputable center of governmental affairs. The justices had their eyes on a certain building on Tel Aviv's posh Rothschild Boulevard, not far from the site where the Jewish state had been declared. Although the provisional government was proud to establish the Supreme Court, to further symbolize sovereign Israel's place in the family of enlightened nations, such mundane matters as judicial facilities were rather low on its priority list. Tel Aviv suffered from an acute housing shortage, and the building originally targeted by the justices went to the Soviet Embassy instead. Protracted negotiations followed, and the justices became increasingly disheartened; a few threatened to resign. Only then was the idea of reoccupying the old building in Jerusalem raised. Later, long after the City of David had been officially annexed to Israel and embraced as its eternal capital, the establishment of the Court in Jerusalem was hailed as symbolic of the revival of Jewish political life. The actual reality, however, was much more prosaic. The Supreme Court of Israel was established in Jerusalem more out of necessity than out of choice.^[10]

Making his way from Haifa to Jerusalem to attend the inaugural ceremony, Agranat was torn between elation and sadness. Palestine was now divided between Jordan and Israel. Latrun, the crossroad to Jerusalem, which he had passed endless times in the past, was now enemy territory. A few passengers made their way through the "Burma road," a path carved in the mountains by Israel's army, in order to break the Arab blockade of Jerusalem. An occasional charred vehicle served as a stark reminder of the 6,000 youths, one full percent of Israel's Jewish population, who died in battle for Israel's Independence. The road was not fit for travel. At one point, the travelers were instructed to disembark from their vehicle and proceed by foot to facilitate passage through a particularly bumpy piece of road. They arrived at a sadly ravaged Jerusalem, wary of its future.

It was 13 September 1948 in Ellul, the last month on the Jewish calendar, devoted to soul searching in anticipation of Rosh Hashanah and Yom Kippur. Present were a few reporters, representatives of the Israeli judiciary, the minister of justice, the attorney general, the justices, and Colonel Moshe Dayan, military governor of Hebrew Jerusalem. It was a humble occasion, yet the assembly bravely suspended its worries and its resentment at the rough treatment inflicted by the administration, in order to rejoice in the fulfillment of the Zionist dream. To the music of sporadic bullets, Minister of Justice Rosen rose to inaugurate the court. "Honorable judges, like a nanny carrying the baby I hand over to you today this child of joy, precious of precious, which was raised and developed

for many difficult and tiring months. May it stand on its feet and carry itself and shine like heaven." The Child of Joy who shines like heaven in Jewish sources is Ephraim, and Ephraim, according to tradition, is the name of the "Messiah whose light shines from one end of the world to the other." The minister of justice was thinking of redemption (geulah ) as he inaugurated the Court.^[11] Chief Justice Moshe Smoira continued in the same vein: "For almost two millennia the Jewish people were praying three times a day, 'Restore our judges as at first'; trembling we approach today the fulfillment of this vision."^[12]

The creation of the state of Israel rekindled the flame of utopian Zionism. Everyone expected that Israel would soon have a constitution.^[13] The judges expected to partake in the miracle of Jewish revival, pursuing justice under law.^[14] And yet, grim reality kept chilling the grand expectations.

An Equal Branch of Government?

Rosen kept his promise, and Agranat was appointed to the Supreme Court in January 1949, six months after its inauguration.^[15] He found his five brethren operating under dire circumstances. The euphoria had faded, and the hardships of everyday life were taking their toll. The winter of 1949 was bitterly cold, heating oil was scarce, and the justices were freezing in their chambers. Smoira arranged for electric heaters to be placed in the court's chambers (not an easy task, given the regime of rationing and the fact that heaters were a luxury), only to find that the electrical system in the building was insufficient to meet the demands. Short-circuits occurred with maddening frequency. The rain, the winds, and the high ceilings and stone walls all conspired against warmth and comfort. Paper was scarce. The opinions of the first few years of the Supreme Court of Israel were written on the reverse side of completed Mandatory forms left in the wake of the British evacuation. The cheap ink stained the cheap paper. There was no library and no way to verify the legal citations relied on by the lawyers pleading before the Court.

More stinging was the wind blowing from the government. Revolutionary times usually inflate the significance of the executive branch. Israel's leaders had good intentions about, and high expectations from, the rule of law. But it is one thing to appreciate the theory behind separation of powers and checks and balances, and quite another to experience these limitations in practice. The executive rejected liberal principles as soon as they appeared to contradict necessity. The Knesset, well aware of the

potential abuse inherent in a strong executive, swiftly secured its own status by granting itself parliamentary immunity, broader than any known in the Western world.^[16] A bill providing for full independence of the judiciary would be enacted only after much struggle and a number of crises, in the summer of 1953.^[17] Stories from this period abound, describing a mean-spirited attitude toward the judiciary. The justices were not included in the list of regular invitees to formal ceremonies and public events. Negotiations concerning salary and benefits were always adversarial and frequently humiliating. The Ministry of Foreign Affairs, in an inexplicably niggardly mood, refused to issue the justices diplomatic passports for travel, despite agreement that they were equal in status to cabinet ministers.^[18]

This state of affairs can only be explained by an ambivalence toward the idea of legality. The political culture of the Yishuv contained deep streaks of lawlessness. As revolutionaries constantly fighting convention and the powers that be, both within and without Judaism, the Zionists were not, could not, be law abiding. The acceptance of illegality as a legitimate mode of behavior gained particular ascendancy during the 1940s, when the Mandatory government outlawed the haganah, prohibited the purchase of Arab land by Jews, and, most importantly, prohibited Jewish immigration into the country.^[19] At the same time, MAPAI's leaders rejected the liberal notion that law was independent of social imperatives. If reality was socially constructed and people were responsible for shaping its content and institutional forms, as they had firmly believed, then law was nothing but a tool to advance the particular ideology that dominated society. The legal system in general, then, and the courts in particular were expected to pursue and implement the needs of the nation as articulated by the government.

Looming above this complexity was chronic anxiety about survival. There was a sense that national security was at stake in almost every important legal issue raised before the Court, that every adverse move would weaken the government, hence the state, and that deference to the needs of the executive was imperative to the survival of the fledgling nation. Not surprisingly, these elements seemed to strengthen catastrophe Zionism—the idea that history is a chain of calamities perpetrated against the Jews. Simultaneously, this condition conspired to tame the great hopes of utopian Zionism for a just legal system, worthy of the vision of the great prophets of Israel. Nothing illustrated this state of affairs in the nascent Israeli political culture better than the events that occurred within two weeks of the inauguration of the Supreme Court.

The Assassination of Count Bernadotte

In 1950 Agranat was appointed chairman of the investigative commission to look into the assassination of Count Folke Bernadotte. Bernadotte, the U.N. mediator for Palestine, was assassinated on 17 September 1948 in Rehavia, Jerusalem, then under Israeli military control. The assassination occurred four days after the inauguration of the Court. Israelis were almost uniformly hostile to the Swedish count. His plans to end the war included a substantial shrinkage of Israeli territory, an unconditional return of Palestinian refugees, and a denial of Israeli sovereignty over Jerusalem. But whereas Ben-Gurion's government was pursuing its offensive against Bernadotte through diplomatic channels, extremists of the far right deployed the tactics they had mastered during British rule—terrorism. The assassins were members of Lohame Herut Yisrael (LEHI; Fighters for the Liberation of Israel, known abroad as the Stern Gang).^[20]

The assassination touched the deepest fears in the provisional government. Not yet accepted as a member of the United Nations, yearning for international legitimacy and recognition, the government feared it would be judged by international public opinion either as condoning terrorism or as unable to control its own turf.^[21] Even worse, the assassination fanned fears of an internal putsch.^[22] The government reacted swiftly. The existing emergency powers were ruthlessly applied,^[23] further emergency regulations for the prevention of terrorism were promulgated,^[24] and, as if these were not enough, the government asked the Provisional State Council to enact the same regulations into law.^[25] The statute, quite similar to the Defense (Emergency) Regulations already in force, reflected the stress Israel's leadership experienced as a result of the assassination.^[26] These maneuvers also disclosed the government's impatience with conventional principles of due process and disdain for political and civil liberties. In the debate in the Provisional Parliament, responding to Liberal objections that the proposed bill violated due process, Prime Minister Ben-Gurion reflected on law and lawyers: "The question is this: have we been made for the legal principle or has the legal principle been made for us? Every jurist knows how easy it is to weave juridical cobwebs to prove anything and refute anything. . . . [A]s a [former] law student I know that no one can distort any text and invent farfetched assumptions and confusing interpretation like the jurist. . . . [W]e need recognition of the reality and knowledge of the facts, and this should be decisive, not juristic, legalisms."^[27]

While it resolutely crushed dissidents at home, the government sought to show its uprightness abroad. The Swedish government, conducting an independent inquiry, concluded that Israel's failure to supply the count with armed escorts was reckless and that the Israeli police investigation lacked the necessary rigor and desire to find the assassins. On 22 March 1950 Ben-Gurion's cabinet appointed a commission to study the Swedish report and make recommendations to the government. Agranat was its chairman.

The sixty-two-page Agranat Commission report rejected some of the Swedish conclusions. The commission found that "the failure to supply an armed escort should not be placed at the feet of Israel's government." It agreed with the Swedish report, that the investigation by the Jerusalem Police Department was "negligent and incompetent." However, the commission rejected the Swedish assertion that there was an Israeli policy to avoid bringing the assassins to justice and attributed the flawed investigations to the political chaos in Israel in general, and in Jerusalem in particular, at the time of the assassination. The commission declined to recommend a new police investigation into the matter but said that the file should remain open and that if the assassins were found they should be brought to justice. The report, kept secret for more than forty years, did contain some criticism of the government and ended with a recommendation that Israel apologize to Sweden for the deficient investigation.^[28]

In hindsight, it is quite evident that Ben-Gurion did not do all he could to find the assassins, partially because he feared fanning political passions and preferred to quell the LEHI and Irgun forces by other means.^[29] The language of the report amounts more to a defense of the Israeli government than to the findings of an impartial arbiter. The Agranat Commission, it appears, bent over backward to assist the government in what it perceived to be a major international crisis.^[30] More than thirty years after the events, Agranat recalled the commission's anxious effort to "prove to the world that the State did all it could to prevent terrorism" and particularly to persuade the Scandinavian countries, which had suspended their recognition of Israel pending the investigation, that Israel's government was innocent of wrongdoing and could be trusted as a lawabiding sovereign.

The entire episode captured well the multilayered attitude toward law, order, and the role of the judiciary that dominated Israeli culture in its formative years. On the surface was the government's commitment to a democracy under law, manifested in the establishment of a judicial system, the enactment of the Prevention of Terrorism Ordinance, and the

appointment of a commission of inquiry. Underneath lay the perception that the concept of justice lacked a well-defined core and that law was an instrument to further social goals. Still deeper lay the perception on the part of Israel's ruling elite that the normative order, particularly as it was administered by members of the legal profession, was nothing but a sterile set of cobwebs, an obstacle rather than a means of obtaining justice. At bottom lay the belief, widely shared by both members of left and right, that what really mattered was "what the Jews do." Not values, norms, or words but action made the difference, and everything else diminished before the main, colossal task of surviving as a sovereign state.^[31]

The Bernadotte affair captured the impossible dilemma faced by the legal profession in matters of national security: on one hand, judges and lawyers wished to restrain the executive branch, maintain the rule of law, and expose manifestations of illegality. On the other hand, they were constantly aware of the government's fragility, the dangers from without and within. There was always a sense that the state was holding on by the skin of its teeth; that the world was arrayed against "us," applying a magnifying glass to Israel's slips and errors; that citizens had a duty to protect the government against the chorus of ill-wishers. This dilemma, the tension between utopian and catastrophe Zionism, would accompany Agranat for decades to come.