Thought police (JERUSALEM POST OP-ED) By EVELYN GORDON 01/31/05)
JERUSALEM POST Articles-Index-Top
Last week, the High Court of Justice abolished freedom of speech for
senior government officials and replaced it with an Orwellian Thought
Police. The justices declared themselves empowered to oust or deny
promotion to any official whose public statements fail to meet their
standards of morality and good taste.
The case began with the Israel Air Force´s assassination of senior
Hamas terrorist Salah Shehadeh in 2002. The operation had been
aborted repeatedly for fear of harming civilians, but this time
intelligence reported no civilians present in Shehadeh´s building,
and tests had indicated that a one-ton bomb would not damage
However, both assumptions proved wrong: Civilians were present in
Shehadeh´s building, and the bomb seriously damaged the shoddily
constructed neighboring buildings. Altogether, 15 civilians were
killed and over 150 injured.
In response, 31 "authors and intellectuals, academic researchers of
the first rank, former senior civil servants, reserve pilots and
members of nongovernmental organizations" (to quote the ruling) asked
the court to order IAF Commander Dan Halutz, who authorized the
bombing, investigated for "war crimes."
In March 2004, while this petition was still pending (as it is even
today), Halutz was promoted to deputy chief of staff of the Israel
Defense Forces. The 31 therefore asked the court to suspend his
promotion until it rules on the original petition, arguing that a man
suspected of war crimes (albeit only by themselves) does not merit
The petition also argued, however, that Halutz´s statements in an
August 2003 newspaper interview showed him morally unfit for high
command, by "proving" that the civilian casualties were not an error,
but the result of "a ´successful´ operation planned and executed
according to parameters that stem from the respondent´s moral
For instance, Halutz asserted that he "sleeps well at night" despite
regretting the civilian deaths – since great efforts were made to
avoid them, and zero human error is an impossible expectation.
He also said that an assassination might be justified even if
civilian casualties were certain, if this were the only way to
prevent an attack that would kill many more innocent people.
JUSTICES EDMOND Levy, Miriam Naor and Jonathan Adiel quickly
dispensed with the petitioners´ first argument, saying that since the
state prosecution saw no grounds for a criminal investigation of
Halutz, and the court has yet to rule otherwise, Halutz´s promotion
However, they rejected the state´s contention that Halutz´s
alleged "war crimes" were the main pretext for the petition, with the
interview being relevant only to demonstrate his alleged criminal
intent. Instead, they decided that the interview on its own
constituted possible grounds for suspending the appointment.
They therefore demanded that Halutz submit a written clarification of
his "moral stance" regarding his earlier statements, and eventually
devoted much of the verdict to this issue.
Levy summed up the court´s position as follows: "One must regret the
tone of the interview, as well as some of the things that were said,
which would have been better unsaid."
Nevertheless, "other statements made in the same interview, and the
clarifications that [Halutz] supplied in the context of this petition
do not enable us to sufficiently establish a moral character that
would obligate Halutz´s suspension from his position at this time."
In other words, the justices could have ousted Halutz merely because
they deemed his statements proof of poor "moral character"; this
particular interview simply provided insufficient evidence.
In explaining this conclusion, Levy offered a remarkable portrait of
the court´s favorite step-by-step method for expanding its powers. It
all began, he said, with Knesset legislation that barred people
convicted of crimes involving moral turpitude from certain positions.
In 1992, the court, on its own initiative, extended this ban to other
public positions. A year later, it also extended the ban to people
under indictment – which had no basis in law whatsoever. A few years
after that, it asserted the right to bar people under police
investigation from office, even though they might never be indicted.
Next, it decided that it could deny office even to people against
whom a criminal investigation had been closed without charges, should
it deem their behavior sufficiently improper.
Then, in Halutz´s case, it went further still, asserting the right to
bar the appointment even of someone whom the police and prosecution
found no grounds for investigating at all.
"We cannot rule out the possibility that [a person´s] behavior even
if it does not constitute a crime, could be so extremely grave that
it would be extremely unreasonable to enable him to remain in
office," explained Levy, quoting an earlier verdict.
From there it was only a short step to the ultimate conclusion: that
even statements in an interview could suffice for the court to bar
someone from public office.
For a person to be forced out of office over something he said is
hardly unheard of in the democratic world. Only in Israel, however,
has the court asserted the right to determine whether a given
statement renders someone unfit for office.
In other countries, this decision is left to the public (expressing
its views through the normal tools of democratic pressure), or to its
Needless to say, the court usurped this prerogative without any
authorization in law. In the process, it abrogated a fundamental
democratic freedom: freedom of speech. And it did so in order to
impose moral standards rejected by the vast majority of Israelis –
who raised no outcry in this case precisely because they backed
Israel has allowed its highest court to expand its powers unchecked
for far too long. One can only hope that this latest outrage will
finally spur the Knesset to impose some badly needed restraints on
the court´s behavior. (© 1995-2005, The Jerusalem Post 01/31/05)
Return to Top
MATERIAL REPRODUCED FOR EDUCATIONAL PURPOSES ONLY