1. Since 1948 Israelis have used various terms to designate the Palestinian Arabs who remained within Israeli territory: Israel's Arabs, Israeli Arabs, Palestinian Israelis, Falastini Israelis. See, generally, Dani Rabinowitz, "Nostalgiyah Mizrahit [Oriental Nostalgia]," Teoryah u-Vikoret 4 (1993): 141; Uzi Benziman and Atallah Mansour, Dayare Mishneh [Subtenants] (Jerusalem: Keter, 1992).

2. E.A. 1/65, Yeredor v. Chairman of the Central Elections Commission, 19(3) P.D. 365 (1965).

3. See Lustick, Arabs in the Jewish State; Benziman and Mansour, Dayare Mishneh; Sabri Jiryis, The Arabs in Israel, trans. Inea Bushnaq (New York: Monthly Review Press, 1976); Jacob M. Landau, The Arabs in Israel: A Political Study (London: Oxford University Press, 1969). For an analysis of the legal status of Israeli Arabs, see Kretzmer, Legal Status . In the Kafr Kassem incident of 1956, forty-seven Israeli Arabs, including fifteen women and eleven children, were massacred by members of the border police. A military court presided over by Judge Benjamin Halevy convicted eight and acquitted three of the accused. The incident fed the anger and increased the demoralization among Israeli Arabs. See Yigal Elam, Memaley ha-Pkudot [The Executors] (Jerusalem: Keter, 1990), 53-70.

4. "We also call upon the government to halt the persecution of Arabs in Israel and recognize the Arab Giant currently awaking and the peoples of Asia and Africa as the light towards which it should turn." Kifakh Al-Ard [The Struggle of Al-Ard], 7 December 1959, in the author's files.

5. H.C. 241/60, Qardosh v. Registrar of Companies, 15(2) P.D. 1151, 1154 (1961); 4 Selected Judgments of the Supreme Court of Israel 7 (1961-1962).

6. Cr.A. 228/60, Qahwaji v. Attorney General, 14(3) P.D. 1929 (1960). Qahwaji was a poet and schoolteacher. He was later dismissed from his teaching position. Al-Ard did apply for a permit to publish, but the government took its time pondering how to respond, and Al-Ard decided to publish while the application was pending. The publications contained polemical criticisms of Israel and were later used as evidence of Al-Ard's intentions. The opinion was written by Justice Landau. Agranat concurred. break

7. Qardosh, 1169. In the further hearing Agranat's majority prevailed. F.H. 16/61, Registrar of Companies v. Qardosh, 16(2) P.D. 1209 (1962); 4 Selected Judgments of the Supreme Court of Israel 32 (1961/2). One can discern an interesting pattern of increasing recognition of Israel by Al-Ard. In 1958 Al-Ard urged Arab voters to boycott the elections and thereby deny Israel legitimacy. By petitioning the Court in Qardosh, Al-Ard was signaling its readiness to offer Israeli institutions some recognition. The pattern peaked in the Yeredor case, when Al-Ard's members wished to run for the Knesset.

8. According to Jacob M. Landau, Al-Ard increased its capital from 1,500 to 120,000 English pounds. When the group was outlawed, a Haifa district court put the Al-Ard corporation out of business. See Landau, Arabs in Israel, 97, 100, 106.

9. See Jiryis, Arabs in Israel, 188; Landau, Arabs in Israel, 92-107.

10. H.C. 253/64, Jiryis v. Supervisor of Haifa District, 18(4) P.D. 673 (1964).

11. In 1961 and 1964 they attempted to attract international attention to their plight by protesting to the United Nations and foreign embassies in Israel about the "military government, expropriation of land, and the condition of Arab culture in Israel" (Landau, Arabs in Israel, 97-98). That, too, could not have endeared them to the Israeli authorities.

12. It is also possible that the Communist Party, which correctly understood Al-Ard's potential as a competitor for Arab votes, encouraged the Central Elections Committee to ban the party.

13. Yeredor, 371-73.

14. The irony of this result from the perspective of Zionism is striking. In the aftermath of the emancipation of French Jews, the slogan was "to the Jews as a nation--nothing, to the Jews as individuals--everything." In response, the Zionist movement insisted on the national rights of the Jewish people. Now the sovereign Jewish state was applying the same French slogan to the Palestinian Arabs.

15. See discussion on p. 93.

16. In interview, Agranat recalled that had he opposed efforts by the military governors to stifle Arab political speech by closing down Arab cafés under the pretext that heated discussions might cause a breach of the peace. In one case, he recalled, he ordered the reopening of such a café.

17. See discussion on p. 108.

18. Qardosh. Qardosh was the leader of Al-Ard. Agranat did, however, concur in the conviction of another Al-Ard leader. See Qahwaji . When asked about this case, Agranat said that his hands were tied because the violation of the law was so clear. Agranat's liberal view toward Arabs, however, was always tempered by the Zionist ethos. See, for example, Yoram Shachar, "Ha-Shimush be-Koah Katlani le-Bitsua ha-Din: Gold bi-Rei ha-Historyah [The Use of Lethal Force to Enforce the Law: Gold in Historical Perspective]," in Barak et al., Gvurot, 275.

19. Cohn said that the company registrar's decision was valid "whether reasonable or unreasonable, to the point or not to the point--I fear that even arbitrariness cannot suffice to invalidate such discretion." He tied this interpretation to judicial restraint, holding that the Knesset is free to change the contours of the discretion. Qardosh, 1172-73.

20. When the black-letter law served to suppress freedom, Agranat sought to continue

soften it through an interpretation that subordinated the language to the higher goals mentioned in Israel's Declaration of Independence. This was his view in both Al Couri and Kol ha-Am .

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

21. Qardosh , 1162.

22. Ibid., 1167.

23. Ibid., 1168-69. On the same page, he added: "My view is that to the extent that the legislature made specific and explicit arrangements, in which it vested in the executive branch the powers of 'prior' restraints on freedom of expression . . ., it is essential to insist that such powers be employed only pursuant to the conditions appearing in these arrangements through -- and this is the crucial point -- the administrative agencies designated to execute this difficult and delicate function, and through them alone" (p. 1169).

24. Further hearing, Qardosh , 1228. Olshan's reasoning centered on the fact that Agranat's limitation of the registrar's discretion reflected the Companies' Law as it obtained in Britain, not in Israel, and therefore amounted to judicial legislation.

25. Under Olshan's leadership, the chief justice retained complete control over the assignment of justices to the various panels. There is little question that this discretion enabled Olshan to manipulate the results of cases. Under Agranat's leadership, the system slowly shifted, and the panels were randomly composed by the Court's registrar. However, the chief justice still retains the privilege of assigning justices to particularly important cases.

26. The fact that Israel was the Jewish state was repeated twice in the section in which Agranat held that the "immortality -- of the State of Israel -- is a fundamental constitutional premise." Yeredor , 385-86.

27. Yaacov Yeredor, the petitioner, was a Jewish attorney and a member of a new leftist group, Ha-Peulah ha-Shemit (Semitic Action), dedicated to cooperation between Arabs and Jews. He started his political activity in the 1930s, as a supporter of the extreme nationalist leader Abba Ahi-Meir. During Israel's struggle for independence he was an active member of LEHI. In the 1950s, LEHI membership was split between the left and the right. Yeredor belonged to the leftist camp, which believed in a binational state. Later, his son, Reuven Yeredor, served as commander of Israel's high-security intelligence unit. The story is emblematic of the diverse roads to security, all in the family. Yossi Melman, "Yehidah Sodit Beyoter [A Top Secret Unit]," Ha-Arets , 14 April 1995, B4.

28. In Qardosh , 1172-73.

29. But he was too secular and modern to observe the other cardinal rule of orthodox Sabbath observance -- refraining from travel. Occasionally, he would take trips to visit family and friends.

30. Sussman filed a concurring opinion, relying on the Weimar experience and on the constitutional law of the Federal German Republic. Insisting that "life experience requires that we do not repeat the same mistake that we were all witness to [the fall of Weimar]," Sussman relied on the concept of "a fighting democracy" in the Basic Law of Germany and on a holding by the German Constitutional Court that certain principles are so sacred as to bind the Constitution itself. Yeredor , 389-90.

Sussman, born in Poland and raised in Germany, was a young referendar (clerk) in the Ausgericht Berlin—Pankow—the magistrate court of Berlin, when the Nazis continue

came to power. Days later, the chief magistrate assembled the clerks: "I have a letter here which applies to the Jews among you," he said. The letter ordered the immediate suspension of all Jewish personnel. Within three months Sussman found himself in Tel Aviv. Dr. Wulf Cegla, interview by the author, Tel Aviv, March 1984.

The comparison of Agranat's and Sussman's opinions is a fascinating illustration of the material that forms Israeli constitutional jurisprudence. Sussman wove German constitutional law into the Yeredor opinion. Agranat wove American law and experience. Thus both the fall of Weimar and the American Civil War came to influence a result related to the Palestinian-Israeli conflict in the Middle East.

31. Yeredor , 386.

32. Ibid., 387.

31. Yeredor , 386.

32. Ibid., 387.

33. Jiryis , 192.

34. Quoted in Justice Cohn's dissent: "We do not sit here as a court of law, and therefore we do not require the strenuous proof required by the law of evidence. We may be satisfied with less than would be required in a legal suit." Yeredor , 372.

35. Ibid., 370.

34. Quoted in Justice Cohn's dissent: "We do not sit here as a court of law, and therefore we do not require the strenuous proof required by the law of evidence. We may be satisfied with less than would be required in a legal suit." Yeredor , 372.

35. Ibid., 370.

36. However, some of the leaders of Al-Ard left Israel after 1965 and participated in the Arab struggle against Israel. Habib Qahwaji joined the Syrian intelligence services and was rumored to be the mastermind behind the Arab Jewish spy ring in the early 1970s. His wife, Naif Akala, was convicted in Israel for spying for Jordan. Sabri Jiryis joined the PLO and became a scholar of the Arab-Israeli conflict. See Benziman and Mansour, Dayare Mishneh , 25.

37. Jiryis , 675. The full text of Article I reads: "To raise the educational, scientific, physical, economic and political level of all its members."

38. The reference to the "contemporary political dictionary" is Justice Landau's in ibid., 680. The classic analysis of the Palestinian discourse as one containing multilayered meaning is found in Yehoshafat Harkabi, Arab Attitudes to Israel (Jerusalem: Keter, 1972).

39. Dani Rabinowitz, discussing the complex connotations attached to any term describing Israeli Arabs (or Palestinians who are Israeli citizens, which is the term he prefers) observes that in the 1950s and 1960s the term Arab "connoted a demonic and dangerous conglomerate of persons and nations . . . ready and able to coordinate powers and effort at any moment, so long as the target is inflicting an injury upon Israel. This disturbing feeling is an inseparable part of my childhood memories." Rabinowitz, "Nostalgiyah," 145.

40. I use the Arabic term here, to distinguish it from Mandatory Palestine.

41. Yeredor , 386. In interview, Agranat defended his ruling by saying, "I did what the people wanted," by which I think he meant that the cardinal precepts of Zionism had to be upheld.

42. And which Chafee himself borrowed from English legal historian Frederic William Maitland. Zechariah Chafee, Free Speech in the United States (Cambridge, Mass.: Harvard University Press, 1964), 20.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

43. Yeredor , 386.

44. Ibid., 385-86, for the proposition that the Declaration of Independence has normative validity. break

45. Ibid., 386.

46. "It may be that Eichmann's trial will help to ferret out other Nazis--for example, the connection between Nazis and some Arab rulers. From what we hear on the Egyptian radio, some Egyptian propaganda is conducted on purely Nazi lines. . . . I have no doubt that the Egyptian dictatorship is being instructed by the large number of Nazis who are there." David Ben-Gurion, "The Eichmann Case as Seen by Ben-Gurion," New York Times Magazine , 18 December 1960, 7, 62.

47. It is important to note that Agranat did not altogether deny Arabs the right of representation. In a dictum he emphasized that the Declaration of Independence stated that Arabs should be adequately represented in all government institutions. Yeredor , 386.

48. "No free regime would assist and recognize a movement which strives to annihilate the same regime." Ibid., 388, quoting Justice Witkon in Jiryis , 679.

49. Ibid.

48. "No free regime would assist and recognize a movement which strives to annihilate the same regime." Ibid., 388, quoting Justice Witkon in Jiryis , 679.

49. Ibid.

50. See Segev, Seventh Million , 373.

51. Indeed, that was the theme which animated Justice Sussman's concurrence in Yeredor , 389.

52. Golda Meir, then Israel's foreign minister, said in the Knesset: "The strong connection between Hitler's regime and Cairo is known since Hitler's days. . . . [E]ighteen years after [the Holocaust] . . . the sons of this people [the Germans] reappear to partake in activity designed to destroy the state of Israel, where the Holocaust survivors have assembled." Segev, Seventh Million , 373.

53. Sir Ernst Barker, Reflections on Government (London: Oxford University Press, 1942), 405, quoted in Yeredor , 388.

54. Dennis.

55. In addition, in the early 1960s, Israel's security services had uncovered a few Soviet moles working within the Israeli security establishment. Their convictions, upheld by the Court, acquainted the justices with Soviet involvement in Israeli affairs. See, for example, Cr.A. 45/61, Cite v. Attorney General , 15 P.D. 1373 (1961); Michael Bar-Zohar, Ha-Memuneh [Isser Harel and Israel's Security Services] (Jerusalem: Weidenfeld and Nicolson, 1971), 179 (discussing the conviction of Yisrael Baer, a senior analyst in the Ministry of Defense who was convicted of espionage in 1962); Cr.A. 28/62, Ploni v. Attorney General , 16 P.D. 2305 (1962).

56. State Papers by Abraham Lincoln (1907): 9, quoted by Agranat, Yeredor , 388. Recall that Agranat wrote the entire opinion on a Saturday night. The fact that he kept a volume of Lincoln's speeches in his personal library made the insertion of the quotation in the opinion possible.

57. In his last year, he was thrilled to watch Ken Burns's epic on The Civil War on videotape.

58. Yeredor , 386.

59. In a curious way, the Eichmann trial and the heightened awareness of the Holocaust, which were meant to empower the Israelis, in fact paralyzed them. Fear for the Jewish state made it impossible to take risks or to think about the meaning of life other than in terms of mere survival. Thus the Court lost an opportunity to encourage a dialogue between Israeli Arabs and Jews.

60. Yeredor , 384. An article by a rabbi and retired professor of Hebrew, Louis Isaac Rabinowitz, in the right-wing newspaper Herut tied together the three events continue

in October—the final phase of the Tel Giborim scandal, Al-Ard, and the Judges Conference in an interesting way. The article challenged the idea that judicial decision making was objective and advised the readers that textual deconstruction could well explain the justices' worldview and thereby facilitate the prediction of results. Agranat and Sussman, the author observed, were devoted to the Jewish cause; hence their decision to sustain the ban on Al-Ard. Justice Cohn was not so devoted; hence his decision to invalidate the ban. Louis Isaac Rabinowitz, "Hakayemet Bikhlal Obyektiviyut ba-Mishpat [Is Law Objective?]," Herut , 22 October 1965, 3. The characterization of Cohn as a "bad Jew" was based on Cohn's commitment to the principle of the separation between church and state. Cohn's opinion in Spiegel and his comments, the previous year, that "because of an ancient Talmudic rule, racist-Nazi principles became law in the State of Israel" particularly enraged religious Jews. See H.C. 4/64, Vagnar v. Attorney General 18(1) P.D. 29 (1964), in which the Court rejected a petition challenging the decision not to open criminal proceedings against Justice Cohn.

61. One landmark opinion, however, stands out in this period: Bergman.

62. Benziman and Mansour, Dayare Mishneh , 111.