THE RIGHT TAKES ON THE JUDICIARY OVER AMBASSADOR'S MEETING

UNCLAS SECTION 01 OF 02 TEL AVIV 000159

SIPDIS

SENSITIVE

SIPDIS

E.O. 12958: N/A
TAGS: PREL PGOV KJUS KWBG IS
SUBJECT: THE RIGHT TAKES ON THE JUDICIARY OVER AMBASSADOR'S MEETING
WITH HIGH COURT PRESIDENT

REF: TEL AVIV 3111

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SUMMARY
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1. (SBU) On the eve of the Annapolis conference in November 2007, a
group of right-wing Israeli parliamentarians accused the President
of Israel's Supreme Court of violating professional ethics by
meeting with the US Ambassador to Israel (reftel) to discuss
settlement and separation fence construction issues as well as legal
cases. The group of legislators urged the Ministry of Foreign
Affairs to lodge a sharp protest with the State Department over what
they viewed as interference in the Israeli judicial system. They
were also vocal in the media in demanding that Justice Beinish
either resign or recuse herself from all cases concerning settlement
and barrier fence issues. The same group of right-wing legislators
has now put its protest in writing. In an unprecedented letter,
addressed to Supreme Court President Dorit Beinish and released in
the wake of President Bush's visit to Israel, the group of twenty
MKs once again demands that she recuse herself from presiding over
all cases pertaining to settlement and barrier fence issues.
Beinish, who is not likely to bow to dictates from the legislature,
is not expected, even by her toughest adversaries, to capitulate.
However, her opponents may have other strategic objectives in mind,
such as discrediting her rulings to the point where the settler
community en masse is emboldened to flout them.

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THE PRESIDENT CREATES A PRECEDENT
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2. (SBU) Precedent is a key argument in all legal discourse and
those who wish to see Justice Beinish divested of the power to rule
on settlement and separation fence issues argue that her discussion
of such issues with the US Ambassador was "unprecedented." (Note:
This is of course not the case. The Ambassador held several meetings
with Beinish's predecessor, continuing a tradition of such meetings
with the court. End Note.) In the initial wave of protest in
November, National Union-National Religious Party (NU-NRP) MK Uri
Ariel wrote to Justice Beinish that "By the very essence of agreeing
to meet and discuss this subject with the Ambassador you have
damaged the standing of the Supreme Court... and turned it into a
political organization." While MK Ariel focused his ire principally
on Justice Beinish, his faction colleague MK Arieh Eldad accused the
United States of "crude intervention in the Israeli legal system and
an attempt to pressure the Supreme Court." (Note: Again, this is
not the case. The office call was a normal diplomatic contact
intended to improve our understanding of past rulings. There was no
attempt to influence pending cases. Indeed, this would be almost
impossible to do; in the Israeli system rulings are issued by
multi-judge panels which often do not even include the president of
the court. End Note.) MK Zevulun Orlev [NU-NRP], who chairs the
Knesset's State Audit Committee, pulled the rhetoric and the
campaign away from a pre-Annapolis assault on the United States and
its officials and redirected it at Israel's highest legal court and
its president.

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TARGETING THE PRESIDENT...AND THE COURT
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3. (SBU) While Orlev's leadership of the campaign has so far
prevented the rhetoric from spinning out of control, he initially
went as far as to demand the resignation of the Supreme Court
President: "This is a serious action and absolute tampering with the
judicial establishment," he said. "This is more than an appearance
of American influence on the rulings of the Supreme Court and
abrogation of its considerations against political interests." At
present, however, Orlev's campaign has dropped the demand that
Beinish resign altogether and is instead seeking to limit her
ability to rule on West Bank issues. The open letter to Beinish,
signed by twenty members of right-wing and ultra-orthodox factions
in the Knesset, claims that the court president's meeting with the
Ambassador jeopardized Israel's sovereignty and the independence of
the judiciary and that it is therefore incumbent upon Beinish to
cease such discussions. The letter also calls for Beinish to recuse
herself from future rulings on issues related to settlements and the
separation barrier. However they stop short of calling for her
resignation.

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PRECEDENT BUT NO PROTOCOL
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4. (SBU) The members of Knesset, whose letter to the President of
the Supreme Court is itself a break with precedent, admit that they
have not had access to any report on the meeting, nor do they know
for a fact that political issues were discussed. This salient point

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emerged when Knesset Member Orlev was interviewed by Israel Radio on
January 14 and admitted that he had asked the MFA whether such a
report existed and if he could review it. Orlev said that to date he
had not received an answer and he did not plan to wait very long for
one. What was clear, he asserted, based on his own experience of
meetings with ambassadors, was that they did not hold such meetings
merely to hear others' ideas but to pass on a message and to exert
influence. (Note: Orlev has never met with the Ambassador.) Pressed
by the radio interviewer as to whether this could be said even of a
supremely democratic country such as the United States, Orlev said
it had been reported, only days ago, that over dinner at the Prime
Minister's residence, visiting President Bush had asked the Israeli
cabinet to "look after" PM Olmert "and let him work," so "who knows
what the Ambassador asked of the President of the Supreme Court..."
The end result, Orlev insisted, was a loss of public confidence in
the credibility of court and what was required in this case was that
at the very least, and if only for the sake of appearances, Justice
Beinish needed to recuse herself from presiding over settlement and
separation barrier cases, at least in the foreseeable future.

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A BARRAGE FROM THE BENCH
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5. (SBU) Acknowledging receipt of the parliamentarians' letter,
Supreme Court President Dorit Beinish responded: "Your claims that
the court is conducting political discussion or accepting dictates
from anyone, Israeli or foreign, are delusional, false and baseless"
she declared in a press statement, adding that her predecessors had
routinely met with foreign diplomats, both at the request of the
latter and at the request of Israel's Ministry of Foreign Affairs,
but that such meetings had refrained from addressing politics or
issues pending before the court.

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COMMENT
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6. (SBU) Almost three decades have passed since then Prime Minister
Menachem Begin made access to the Supreme Court a rightful resort
for Palestinian plaintiffs in appeal hearings against the occupying
authority. Since then, the court has been mired in controversy and
dispute over land and settler issues in the occupied territories.
The attack on Justice Beinish, however, marks a low benchmark in
relations between the right-wing and the judiciary in which insult
and disrespect may prove to be more than merely personal. The
parliamentary group headed by MK Orlev may only represent one sixth
of the plenary but comprises members from six factions, including
one Kadima MK. Such a challenge to the authority of Israel's highest
legal instance by the right wing over settlement issues may be
designed to provide a pretext for settler activists to deny the
legitimacy of any future high court rulings on settlement
evacuations, which could complicate efforts to implement Israel's
Roadmap commitments.

JONES