Supreme Court President Barak Dubious of

UNCLAS SECTION 01 OF 04 TEL AVIV 000522

SIPDIS


STATE FOR NEA/IPA TWILLIAMS, NEA/PPD AFERNANDEZ
STATE INFO FOR ECA DPOWELL/CMCROUCH/MCAIN/LMOODY
STATE INFO IIP RWINCHESTER
JERUSALEM PASS ICD DANIELS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV PHUM OEXC OIIP KPAO SCUL IS GOI INTERNAL ISRAELI SOCIETY ISRAELI PALESTINIAN AFFAIRS
SUBJECT: Supreme Court President Barak Dubious of
Current Knesset's Constitutional Agenda

SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY

REF: A) 05 TEL AVIV 6717 B) 05 Tel Aviv 5490


1. (SBU) Summary: In the Ambassador's January 31
meeting at the Supreme Court, Israel's Supreme Court
Chief Justice Aharon Barak shared his views on Israel's
constitutional future and his own future as he prepares
to retire from the Court in September 2006. He
described fundamental points of judicial interpretation
on which he disagrees with his friend U.S. Justice
Antonin Scalia, with whom he debated publicly at a
January 29 Law Symposium in Jerusalem celebrating the
50th Anniversary of the Fulbright Program in Israel.
Barak said he fears Likud MK Michael Eitan "and people
further to the right" will keep trying to pass
legislation to establish a separate Constitutional
Court in Israel. Their goal, he claimed, is to
decrease the influence of the independent Supreme
Court/High Court of Justice and increase the influence
of a body that is designed to be subject to political
influences from the legislative and executive branches.
Barak also said he expects current Deputy President
Justice Dorit Beinisch to succeed him as President of
the Supreme Court and head of the High Court of Justice
this fall, based on her seniority on the bench, and
noted he is trying to finish most of the 40 or so
remaining separation barrier-related cases still
pending before the High Court before his retirement.
End Summary.

Wary of Current Knesset Draft Constitution
--------------


2. (U) Ambassador Jones called on Aharon Barak at the
Supreme Court in Jerusalem on January 31. Barak is
President of Israel's Supreme Court, Israel's top
appellate court, and head of Israel's High Court of
Justice, which is a court of first instance, ruling
primarily in matters regarding the legality of
decisions of state authorities at all levels, including
the constitutionality of Knesset legislation. An Econ
officer, PD officer and PD's rule of law program
specialist accompanied the Ambassador. The Ambassador
also greeted Justices Salim Joubran and Dorit Beinisch
during a short tour of the Court.


3. (SBU) Barak shared his views on the critical
importance of judicial review and judicial independence
in protecting democracy and its institutions. Asked
for his assessment of the latest efforts in the Knesset
to draft and adopt an Israeli constitution, Barak said
he is strongly in favor of a constitution and has been
active for years in efforts to achieve a national
consensus draft. But he stressed that it would be far
preferable for Israel to remain without a constitution
than to adopt a bad constitution. He was openly
dismissive of Likud MK Michael Eitan, current Chair of
the Knesset's Constitution, Law and Justice (CLJ)
Committee, and of the draft Eitan plans to "roll out"
at a special Knesset reception in mid-February. Barak
said he turned down Eitan's invitation to attend and
speak at that reception. He feels that the Knesset's
current draft is not the right formula.


4. (SBU) "Any constitution draft with a hope of earning
wide consensus in a diverse society like ours will have
to involve compromises," he said. But Barak fears that
the deal the current Knesset CLJ Committee appears to
be pushing for involves adopting a written constitution
in exchange for significant representation of the
Jewish orthodox minority on a new constitutional court
which would be created to adjudicate constitutional
cases. When asked about the version of a draft
constitution recently completed by the Israel Democracy
Institute (IDI),Barak replied, "That's a good text,
and I'd support it."

Constitutional Court a Bad Idea for Israel's Democracy
-------------- --------------


5. (SBU) Barak went on to say he disapproves of the
effort by Eitan and others every six months over the
last couple years to adopt legislation that would
establish a separate Israeli constitutional court, the
judges of which would be appointed by the Knesset. The
goal of that legislation, in his view, is to make
judicial decisions subject to political influence and
remove or dilute a much-needed check on executive and
legislative power. "Prime Minister Sharon's views in
this regard were very constructive, and that draft
legislation thankfully never got very far in the past,"
he said. Regarding the future, Barak said he did not
know what mix of players would make up the Knesset's
CLJ Committee after the March 28 elections.

Protecting Civil Liberties in Israel's War on Terror
-------------- --------------


6. (U) According to Justice Barak, there have been over
80 petitions brought to the Supreme Court, seated as
the High Court of Justice, regarding the route of the
separation barrier. Of these, about 40 were settled
out of court in consultation between the plaintiffs and
the government, and the GOI successfully adjusted the
barrier's route in those cases. Justice Barak remarked
that on several occasions, he personally made
suggestions to the GOI, and he felt that the State was
usually flexible in adjusting the barrier's route. He
was optimistic that within the year the remaining 40 or
so cases could also be resolved. The cases taking the
longest to adjudicate or settle are those related to
the Jerusalem area, he said.


7. (SBU) Barak defended the Court against the often-
heard accusations that it is "dragging out" and
preventing the completion of the separation barrier.
He said that in some instances, the IDF did not issue
the land confiscation orders required to build the
barrier, which slowed down the process. In addition,
he commented that the GOI has changed the route of the
barrier on its own, and these cases must then start
again in court. Barak mentioned that to prevent appeal
after appeal, he is now creating 11-judge panels to
review many types of cases which might prove
controversial, rather than assigning normal 3-judge
panels which hear the vast majority of cases before the
Court. (Barak explained that plaintiffs have the right
to request appeals for their case to be "re-heard" by a
larger panel of judges. An 11-judge panel in the
current situation, where only 12 Supreme Court justice
positions are filled, is the largest possible panel,
and precludes the possibility of re-hearings.)


8. (U) Since the 1967 war, Palestinians in occupied
West Bank and Gaza have had recourse to Israel's
Supreme Court and High Court of Justice. Barak noted
that the Court has reviewed thousands of petitions
regarding proposed IDF demolition of Palestinian homes
and property in the West Bank and Gaza. He explained
that Israeli law dictates that house demolitions by
Israel's security forces must be preceded by a judicial
hearing by the High Court unless two criteria are met:
1) the demolition is necessary to clear a path in the
heat of battle, and 2) waiting for and/or conducting a
hearing will affect the outcome of the battle. Outside
the actual "hot field" of battle, there are separate
cases related to the effort by the IDF to use
demolition of the homes of suicide bombers as a
deterrent to future suicide bombings. In those kinds
of cases, he said, the Court has ruled that destruction
of a home that belongs to anyone but the actual
terrorist would be illegal because it constitutes a
punishment of the family. Similarly, he added, the
Court has ruled that deportation or transfer of the
family of a suicide bomber from the West Bank to Gaza
would be unconstitutional/illegal, since it would be a
punishment of persons other than the guilty person.

-------------- --------------
Scalia v. Barak: Opposing views on Judicial
Interpretation and Role of the Judge in a Democracy
-------------- --------------


9. (U) On January 29, two days before the Ambassador's
courtesy call, Barak and Associate U.S. Supreme Court
Justice Antonin Scalia gave keynote lectures and then
debated at a public Law Symposium co-sponsored by the
United States Israel Educational Foundation (USIEF)
with Hebrew University's and IDC Herzliya's Law
Schools. The topic of the two-day symposium, organized
to mark the 50th Anniversary of the U.S. Israel
Educational Foundation (Fulbright Israel),was
"International Influences on National Legal Systems."
Scalia had argued against the relevance of comparative
(foreign) and international law cases in the Supreme
Court's deliberations and interpretation of the
Constitution, while admitting that "to his regret,"
that wasn't the prevailing view on the Court today and
such cases would likely continue to be cited in U.S.
courts with increasing frequency. Barak argued in
favor of the relevance of comparative and international
law in domestic adjudication in certain circumstances,
and elaborated his "purposivist" approach to judicial
interpretation in contrast to Scalia's "originalist,"
text-based interpretation. Some 500 Israeli and
international legal experts, judges, students, press,
and public attended the January 29 session, at which
the Ambassador and Israeli MFA Director General Ron
Prosor and others provided welcoming remarks. Later in
the evening, the spirited debate and exchange continued
as the Ambassador, Israel's Foreign and Justice
Minister Tzipi Livni, Justices Barak and Scalia and 60
other guests attended a closed Fulbright Israel 50th
Anniversary dinner also organized by USIEF.


10. (SBU) In their January 31 meeting, Barak described
to the Ambassador his strong disagreement with Justice
Scalia's "originalist" philosophy, and explained his
own view that "purposive" interpretation was the more
appropriate approach in bolstering democratic
institutions and serving the cause of justice. "What
good is a dead Constitution? The U.S. framers intended
it to be a living Constitution," he said.
Characterizing Justice Scalia as one of the most
influential judges currently on the U.S. Court, Barak
lamented -- as he had done many times to Justice
Scalia's face, he quickly added -- that the Justice
takes such a black and white, text-based view, which
Barak said he sees as extremely regressive and
fundamentalist. Barak emphasized the critical role of
judicial review in the U.S. and Israeli systems as a
key tool in the protection of democratic institutions
of government, adding, "If you don't protect democracy,
democracy won't protect you." He explained that the
concept of judicial review was not included in the text
of the U.S. Constitution and is not enshrined in the
series of Basic Laws that currently serve as Israel's
informal constitution. Rather, judicial review in
Israel was established by an Israeli Supreme Court
decision drafted by Barak in 1994 in Israel's version
of America's landmark 1803 Marbury v. Madison ruling.


11. (SBU) Justice Barak spoke highly of his expected
successor as Chief Justice, Dorit Beinisch, and said he
expects her to continue along more or less the same
lines of judicial interpretation and outlook as his own
when she succeeds him in September.

Praise for Fulbright and PD Rule of Law Programs
-------------- ---


12. (U) Barak, who was a Fulbright scholar in the U.S.
in 1966-67, reiterated to the Ambassador his high
praise for the excellent public diplomacy speaker and
exchange programming that the Embassy has organized
with Israel's judiciary over the years. In an earlier
meeting (Ref A),he had outlined to the PAO some ideas
for future areas of PD programming, including longer-
term exchanges and/or sabbaticals in the U.S. for
Israeli judges and seminars and speakers on topics of
mutual interest. The Ambassador told Barak he
supported those ideas and would work to implement as
many as possible. Barak personally thanked the
Ambassador for the efforts of PD's rule of law program
specialist (also present at the meeting),whom he said
he had worked with for nearly a decade. He encouraged
the Embassy to continue to work with his successor on
the Court to keep up such mutually beneficial programs,
which he said provide much needed exposure for Israeli
judges to foreign legal systems. As he told the PAO in
November, "comparative domestic law and international
law are both becoming more important worldwide, and the
legal field is not immune to the overall trend toward
globalization." (Ref B highlights post's recent rule of
law related programs.)

--------------
Personal Plans
--------------


13. (U) Barak said he eagerly awaits his retirement in
September. The government had asked him to stay on as
President for two extra years, something which would
have required special Knesset legislation raising the
mandatory retirement age for all judges from age 70 to
age 72. He turned down the offer. "I approved their
idea of draft legislation raising the retirement age
for judges, specifically on the condition that it would
not apply to me," he laughed. A prolific author both
before and during his time on the Court, Barak looks
forward to time to write more and also lecture abroad
for a couple months each year, including at Yale
University Law School, where he has lectured frequently
over two decades. He emphasized that he intends to
spend most of his time in Israel, where his input seems
most relevant and needed.


JONES