Chapter 9—
Who Is the Guardian of the Law:
The Minister of Justice or the Attorney General?

The Rule of Law

The same week that Adolph Eichmann was executed, a social commentary appeared in Davar , titled "Restlessness in Israeli Society—Why?" The 1961 volume of Ha-Praklit , the bar's law review, was full of complaints about the "weakening of the rule of law."^[1] At the same time, the long-simmering tension between the minister of justice and the attorney general exploded. Within weeks the government appointed Agranat chairman of a commission to decide who was in charge of law enforcement in Israeli democracy.

Israelis perceived the Eichmann trial as the epitome of justice. But no one felt completely at ease with its kernel of lawlessness: Israel had abducted Eichmann from Argentina and transported him, against his will, to stand trial in its courts. Was there symbolism in the fact that as Eichmann's plea for pardon was pending, it was revealed that one of the leading attorneys for the prosecution was guilty of making false representations and, in fact, was not qualified to practice law?^[2]

In the background rumbled the angry echo of the "Lavon Affair." In the early 1950s, Israelis and Egyptian Jews executed an ill-conceived and disastrous clandestine operation, aimed at sabotaging Western and Egyptian relations. A cover-up followed. The questions of what the minister of defense knew and when he knew it (or, in the Israeli parlance, "Who gave the order?"), had haunted the Israeli leadership ever since. In 1960, while the Eichmann trial was in progress, a committee of seven ministers

chaired by Minister of Justice Pinhas Rosen concluded that Pinhas Lavon, then minister of defense, did not give the order. Furious, Ben-Gurion resigned, and his resignation led to the dissolution of the Knesset and to new elections. The new government, established after the election of the fifth Knesset, in 1961, did not include the Progressive Party.^[3] For the first time in ten years the Ministry of Justice went to MAPAI. Bernard Joseph, the man who had precipitated the 1953 crisis with the judiciary, again found himself in charge of the Ministry of Justice.^[4]

Ben-Gurion's fury had complex roots. A battle over the control of MAPAI, and therefore over the leadership of the country, was under way. Many saw Ben-Gurion's crusade as a last-ditch effort to remain in power. The struggle was also perceived as a clash over the nature of the polity: should Israel continue its emphasis on etatism (the Eichmann trial could be perceived as a part of this trend), or should it strive to become a more pluralistic, more tolerant democracy?^[5]

Meanwhile, tension developed at the Ministry of Justice. When Joseph took over as minister of justice, he was determined to exercise more influence over the decisions of the attorney general. Ben-Gurion actively supported his efforts. The more Hausner resisted, the more their relations deteriorated. Rumor had it that Joseph shunned Attorney General Hausner (appointed by his predecessor) and frowned on the latter's insistence on professional independence. The media reported that the attorney general was no longer invited to cabinet meetings, that MAPAI bosses were apprehensive about the reputation Hausner had acquired as Eichmann's successful prosecutor, and that they were looking for an opportunity to be rid of him.^[6]

The institution of the attorney general was indeed constitutionally peculiar, "somewhat fish, somewhat meat, and somewhat milk, but in any event not kosher."^[7] In England and the United States the attorney general serves as both a political confidant and as a legal professional. Israel split the position into two: the minister of justice, a politician and a member of the cabinet, and the attorney general, a professional lawyer.^[8]

The matter came before the cabinet, and the cabinet's inability to decide led to the appointment of the Agranat Commission. On 26 June 1962 Ben-Gurion asked Agranat, along with Justice Berinson and attorney Avraham Levin, to determine who had the power to decide what at the Ministry of Justice.^[9]

That summer Chief Justice Olshan was away on vacation, and Agranat, as deputy chief justice, was in charge of the Court. It fell to him to play host to the chief justice of Peru, then visiting in Jerusalem. In last-minute

preparations he hurried to buy shoes; Carmel was busy elsewhere, his own shopping skills were minimal, and he soon realized that he had bought shoes one size smaller than he needed. The painful sensation of the pinching shoes served as a metaphor for his general state of mind. He felt exhausted: the Eichmann trial, the details of the carnage, the international limelight, the decision to violate a cardinal component of his worldview and sentence a man to death, and now the need to choose between Ben-Gurion and the attorney general. In some way the dilemma evoked the Weizmann–Brandeis Split of the 1920s. Ben–Gurion, the widely admired, visionary, yet pragmatic founder of the state, stood against the attorney general who represented Progressivism and the rule of law in Israeli political culture. Could Ben-Gurion's request conjure Agranat's old exasperation at being forced to choose?

On one hand, Agranat remembered that he initially preferred the American arrangement, in which the attorney general is both a political confidant and the guardian of justice. On the other hand, he tended to agree with the former minister of justice that, given the pressure cooker of Israeli politics, it was wiser to isolate the attorney general from politics.

The general malaise concerning the rule of law received further confirmation by the Robert Soblen affair, which erupted in early July 1962, just as the crisis of the attorney general was reaching a fever pitch. Soblen, a Jewish Holocaust survivor and former Troskyite, was convicted by American courts and sentenced to life in prison for conspiring to obtain secret defense information.^[10] Probably one of the last casualties of McCarthyism, Soblen jumped bail and arrived in Israel with a forged passport. The U.S. government (could it react to Israeli rhetoric during the Eichmann trial that had ended two months earlier, hailing Israel as a haven to all persecuted Jews?) was unequivocal in its demand that Soblen be returned immediately. Despite a pending court order enjoining the deportation and despite the fact that Israel had no extradition treaty with the United States, Soblen was handed over to agents of the Federal Bureau of Investigation (FBI) and flown to the United States without notifying his attorney.^[11] On the way he attempted to commit suicide, and his aircraft made an emergency landing in London, where he died. Prior to his death, English courts issued a writ of habeas corpus, which was honored by the British government.

The contrast could not be more disconcerting. Britain would not bend its legal procedures to accommodate American dictates. Israel would. In Jerusalem, Agranat grudgingly denied a petition to reverse the hasty deportation and to allow Soblen to exercise his rights under the Law of Return. Agranat justified the denial on the grounds that Israel's courts

lacked jurisdiction, because Soblen was no longer on Israeli territory. The press reported that the minister of justice did not consult with the attorney general before instructing the police to hand Soblen over to the FBI.^[12]

The Powers of the Attorney General

Agranat was familiar with the issue of the powers of the attorney general. Five years earlier, the Court had refused to overrule a decision by the attorney general, to dismiss the private criminal suit a woman had initiated against her lawyer.^[13] Agranat's opinion in Frieda Schor became the landmark case on the power of the attorney general to halt criminal proceedings. But it was one thing to opt for deference when the discretion of the attorney general was challenged in court and a different matter to hold that the minister of justice should defer to the attorney general's discretion in matters of law enforcement.

Joseph's strongest claim was for accountability. The minister, as a member of the cabinet, and the cabinet collectively, are accountable to the Knesset for the activities of the ministry. The democratic tenet of executive accountability, Joseph argued, should be the guiding principle. The officer who is most accountable should also have the final say. The pending visit in early August of Earl Warren, chief justice of the United States, may have sharpened Agranat's ever-present awareness of subtle cultural barriers. Rooted as he was in the American system of separation of powers, in which the executive was independent of the legislature, he asked himself whether he failed to understand something about the parliamentary system, in which the executive depended on parliamentary approval. He had long talks with Justice Berinson, another committee member, in an attempt to get to the bottom of the accountability claim. Writing the first part of the report, concerning the attorney general's powers to start and stop the engines of justice, was easy. But as he came to the question of whether that jurisdiction was exclusive to the attorney general or whether the minister of justice had the final say, Agranat balked.^[14] He felt restless and upset, slowly realizing that he simply could not write. He, reputed for diligence and productivity, could not deliver. He knew what he wanted to say, yet the words eluded him.

The family doctor prescribed sleeping pills, but these only worsened his condition. Next came a consultation with an expert, who pronounced that he suffered from "fatigue." Agranat's ironic tone and the twinkle in his eye as he recounted the story signaled Agranat's willingness to share

the euphemistic nature of the medical term "fatigue." He was advised to take a "complete rest," preferably away from Jerusalem.

Indeed, after a week or two in a luxurious villa owned by the parents of his daughter's friends in Herzlia and long walks with Carmel, Agranat was ready to complete the report. Dictating to his clerk, he was confident that he could complete the task "between Yom Kippur and the Feast of the Tabernacle."

Did the attorney general possess exclusive powers? Yes, came the unanimous answer of the commission. The attorney general must be free to exercise his discretion independently. Brushing aside the minister of justice's argument that continuity with the Mandatory arrangement required the subordination of the attorney general to the minister and emphasizing that the democratic nature of the state required that the law be superior to the judgment of the executive branch,^[15] Agranat explained the significance of an independent attorney general. At its base lay a distinction between politics writ small and Politics writ large. The attorney general, he maintained, was "the custodian of the public interest"; his was a "complex role," requiring the attorney general to preserve the rule of law while advancing the cause of justice.^[16] Agranat did not pretend that the public interest had legal content or that the reason for the attorney general's independence was his superior legal training. His report emphasized that the concept of the public interest required balancing the contending principles of the public good and demanded more than narrow legalistic considerations.^[17]

The spine of Agranat's argument was the need to check partisan considerations masquerading as the public interest. The fierce nature of Israeli politics, the conviction of each party that it alone understood Israel's best interests, and the nation's lack of a democratic tradition all combined to enhance the vulnerability of the principle of the rule of law. A minister of justice could hardly resist partisan considerations for long. The need for an insulated attorney general was obvious.

The attorney general should serve as a barrier and protection against executive attempts to pursue political-partisan goals by unjustly invoking the criminal process against the citizen. . . . It is important that justice be "seen" (not only "done") so that when the Government initiates criminal proceedings for reasons grounded in the public interest, the public will not erroneously attribute the decision to a lack of bona fide and partisan motives. We are dealing here with an important guarantee of civil liberties and the maintenance of good order in the state.^{[ 18]}

Indeed, Agranat observed, the attorney general must consult with the minister, "particularly where actions related to public or political security

are at stake,"^[19] and must keep him informed of the ongoing work. But, he emphasized, "to the extent that there is disagreement between [them] . . . the attorney general must decide . . . in keeping with his own understanding and conscience."^[20]

A more difficult question lay ahead: if the attorney general were autonomous, what was the purpose of making the minister of justice head of the ministry? When frustrated, was there anything the minister could do to guide his ministry? Surely the attorney general could be dismissed. But because he was appointed by the cabinet (as he was legal adviser to the government as a whole, not merely to the minister), he could only be dismissed by a collective cabinet decision. Short of dismissal, what recourse was left to a minister? For example, could he arrogate to himself powers that the law vested in the attorney general and thereby step into his shoes?

The question troubled Agranat deeply. A unilateral arrogation of power by the minister would undermine the rule of law and might even amount to usurpation of powers. For if the minister could simply arrogate powers to himself, thereby stripping the attorney general of his powers, and then proceed to indict or halt a pending criminal process, then the entire effort of sheltering the public interest from partisan calculations would prove to be a house of cards.^[21] The very presence of the option, it seemed, guaranteed that partisanship, not the public good, would prevail. In the end, and not without trepidation, the commission decided that the minister could unilaterally arrogate powers to himself.

One reason Agranat chose this solution was because Joseph and Hausner also endorsed it. Why fight over something on which both agreed? But a deeper force informed his choice. The scheme looked neither neat nor logical, but it did give some muscle to a very weak tissue in the Israeli body politic: checks and balances. Under the parliamentary system of government, the only check on the executive is a parliamentary vote of no confidence. In England this state of affairs is somewhat fortified by a tradition of respect for the rule of law. The principle that "certain things are simply not done" has been an important part of British politics. But both the Lavon and Soblen affairs were painful reminders that Israel had yet to develop such a tradition. Drunk with Jewish political power, Israel's political leadership considered parliamentary control (majoritarianism) as adequate to check the executive. But were accountability to the Knesset and the concomitant availability of a no-confidence vote sufficient? In emphasizing the autonomy of the attorney general and simultaneously allowing for arrogation of his jurisdiction, Agranat introduced

an idea of checks and balances that was distinctly American. It was an intricate, hydraulic, and pragmatic solution, one that avoided the insular independence of any one branch of the government.

What about the danger to the rule of law posed by the minister's arrogation of responsibilities or the government's decision to dismiss the attorney general? The possibility of abuse remained real. But under Agranat's plan, any invasion of the attorney general's powers would be publicly seen. Any disruption in the delicate balance of power would occur in plain view, and the people and the Knesset would have the responsibility of holding the executive accountable.

Agranat conceded that his solution affected the relationship between the executive and legislative branches. The collective responsibility of the government to the Knesset in matters within the jurisdiction of the attorney general was limited,^[22] and consequently the supervisory powers of the Knesset over the attorney general became limited as well. But this was a price well worth paying for defending the rule of law against partisan politics.^[23]

Agranat's report thus constructed a system in which the attorney general, and therefore the administration of justice, was generally autonomous of the Knesset, the cabinet, and the minister of justice. It left the government two remedies—dismissal or arrogation of powers—and the Knesset the remedy of a vote of no confidence, but all three were harsh medicine, not to be casually prescribed. Thereby, Agranat encouraged the move toward professionalization and away from partisanship in the administration of justice, while allowing the government to prevail, provided that it did so publicly.

Once the report was submitted to Ben-Gurion, it became the most discussed item in Israel. The press interpreted it, not without justification, as a major victory for the attorney general. The cabinet, a student of these events has noted, "was stunned":^[24] it voted to adopt the commission's report, after much deliberation, despite Joseph's vociferous opposition and Ben-Gurion's reported opinion that the conclusions lacked logic.

From the bench, Agranat observed the rapid developments. Within weeks, Hausner resigned. In early 1963 Moshe Ben-Ze'ev, a district court judge from Haifa, was appointed attorney general. Ben-Ze'ev, a competent jurist, was a man after Joseph's heart, modest, gentle, and unassuming. It presumably did not hurt that he had been close to MAPAI circles in the early 1950s^[25] or that, as a district court judge, he was accustomed to having his decisions reviewed and sometimes overruled by a higher authority. In accordance with tradition, the chief justice was expected to

give his consent to the appointment, and Olshan conditioned it on Joseph's guarantee that the commission's recommendations would be followed. Later, however, Olshan learned that the new attorney general did not wait for the chief's approval before he accepted the appointment.^[26]

The effectiveness with which the government managed to quell repeated Knesset efforts to restructure the position of the attorney general during this period of upheaval and the successful secrecy in which Joseph shrouded his nominee prior to appointment reconfirmed Agranat's worries: in Israel the locus of power was in the cabinet, not in the Knesset. Neither accountability nor Knesset supervision could safeguard the rule of law from the constant interference of partisan politics. Only an insulated attorney general and an alert public could do the job.

Agranat considered his recommendations to be not an approval of the status quo ante but an important barrier against the real danger of the corruption of the rule of law by partisan politics. The commission's report became the cornerstone of a professional ministry of justice.

With the benefit of hindsight, it is clear that the report gave an important boost to the idea of the rule of law in Israel. However, one may also detect the seeds of Conservatism, the preference for pragmatic solutions whose reformist message was not too radical. Agranat was now a senior justice. Within two years, he expected to replace Olshan and become chief justice himself. In the aftermath of his encounter with personal "fatigue," the fervor of his belief in the capacity of utopian Zionism to transform Israel was also cooling down.