SENATOR SPECTER AND ISRAELI CHIEF JUSTICE BARAK

UNCLAS SECTION 01 OF 02 TEL AVIV 003366 SIPDIS SENSITIVE FOR H TO PASS TO SENATOR SPECTER E.O. 12958: N/A TAGS: KJUS PREL IS SUBJECT: SENATOR SPECTER AND ISRAELI CHIEF JUSTICE BARAK DISCUSS JUDICIAL ISSUES ¶1. (SBU) SUMMARY Senator Arlen Specter (R-PA) met with Israeli Supreme Court Chief Justice Aharon Barak at the Supreme Court Building in Jerusalem on August 20. Justice Barak, who is retiring in September, dropped several hints that he might be expecting a call to lead a commission of inquiry if one is formed to investigate Israeli military actions against Hizballah in Lebanon. Senator Specter asked about Israeli court decisions -- and Justice Barak's views -- regarding interrogation of suspects and discussed the separation barrier. The Senator and Justice Barak also discussed differences between the U.S. and Israeli Supreme Court systems, abortion decisions in various national supreme courts, differing judicial philosophies, media and the courts, mandatory retirement ages, and Barak's plans following his impending retirement. Senator Specter concluded the meeting with an offer for Justice Barak to visit him in Washington. END SUMMARY -------------- -------------- RETIREMENT PLANS - LEBANON COMMISSION OF INQUIRY? -------------- -------------- ¶2. (SBU) Justice Barak dropped several hints that he might be expecting a call to lead a commission of inquiry if one is formed to investigate Israeli military actions against Hizballah in Lebanon. When Senator Specter asked Justice Barak about his retirement plans, Barak said he is going to keep his schedule free, even from teaching obligations, an unspoken indication of availability if a commission of inquiry is formed to examine the military campaign. Barak said that he understands the need for age limits and would not endorse appointment of a new justice older than 65 because of their limited time available for the court before the mandatory Israeli retirement age of 70. Senator Specter cited Senators Thurmond and Byrd as examples of individuals making significant contributions at far more advanced ages than the Justice is now, and urged him to "get an active job" and to not "succumb to your wish" for a leisurely retirement. -------------- THE SEPARATION BARRIER -------------- ¶3. (SBU) Barak said the court has received 120 cases on the separation barrier, 40 of which have been dealt with. Barak had said that independent review is applied by Israel on many cases in the Occupied Territories and his court had "knocked out" several GOI decisions. -------------- JUDICIAL RULINGS ON INTERROGATION TECHNIQUES -------------- ¶4. (SBU) Senator Specter, saying that he is an admirer of the Israeli judicial system, asked about the interrogation of suspects. Noting the "potential for torture" and the recent U.S. Supreme Court decision on the subject, the Senator said that he and his colleagues are "wrestling in Congress" with the issue and asked about Israeli rulings on similar issues. Justice Barak, noting that the pertinent ruling pre-dated 9/11, said that the question is whether a state can authorize or regulate interrogation and whether in some circumstances -- i.e., a "ticking bomb" -- "excessive" force can be used. Barak said the whole court decided that a democracy cannot use torture, even if that means it must fight terror "with one hand behind the back." He clarified that his judgment dealt with state authorization of torture, and left open ex post facto questions of whether individuals who acted on their own could claim a defense of necessity. Barak said he disagreed with a 2006 German court decision that ruled unconstitutional a federal statute authorizing the German Air Force, under very specific circumstances, to shoot down civil aircraft. Barak said he believes that was a "wrong judgment" from "the Israeli point of view" and that at some point the question of cost/benefit needs to be considered. -------------- TWO DIFFERENT COURT SYSTEMS -------------- ¶5. (SBU) Specter and Barak discussed at length differences between the U.S. and Israeli Supreme Courts. Barak explained that a board decides appointments to the Israeli Supreme Court. The board, which meets in closed hearings, consists of two cabinet ministers; two members of parliament, one from the ruling coalition and one from the opposition; two members of the Israel Bar Association; and three current Supreme Court justices, chosen by seniority. Barak offered that this system produces a 5-4 majority to the "professional" side -- the legal profession -- over the "political" side and that the governing coalition holds only three of nine seats on this board. Barak also said that there is a big difference in the number of cases that the prospective courts handle, saying that the U.S. Supreme Court handles about 80 cases a year but his court handles 13,000 cases a year, of which "90 percent are junk" and "should not have come here." -------------- -------------- JUDICIAL PHILOSOPHY, ABORTION, TELEVISION IN THE COURTS -------------- -------------- ¶6. (SBU) Other subjects that were discussed included judicial philosophy, abortion, and television coverage of the courts. Barak characterized U.S. law as generally defining what the government is prohibited from doing, while Israeli law establishes dignity as a constitutional right, and legal decisions often define what the government is obligated to do. Expanding on the concept of government obligation, the Justice brought up abortion rulings in Germany and Canada. Barak also said he was not in favor of allowing television reporting inside the courts, but could not go against the "winds of change." ¶7. (SBU) Senator Specter, noting that he had visited Israel many times since his first trip in 1964, said that for the first time he is worried about the country, citing the intensity of the fighting from Hizballah and the "hatred" directed towards Israel. Justice Barak said that he is still optimistic and sees light at the end of the tunnel, although "the tunnel becomes longer and longer." Senator Specter concluded the meeting with an invitation for Justice Barak to visit him the next time he comes to Washington. ¶8. (U) CODEL Specter did not have an opportunity to review this message before departing post. ********************************************* ******************** Visit Embassy Tel Aviv's Classified Website: http://www.state.sgov.gov/p/nea/telaviv You can also access this site through the State Department's Classified SIPRNET website. ********************************************* ******************** JONES