Power without responsibility

The elected government thought the best man for the job was Maj. Gen. Yoav Galant. I’m not qualified to judge whether he was in fact superior to the other contenders, but he was clearly a reasonable choice. As GOC Southern Command, he played a major role in drafting the plans for Israel’s war with Hamas in Gaza two years ago and training the troops who fought it. And that war, unlike the Second Lebanon War in 2006, is generally considered a military success: It fully accomplished the limited goal the government set – significantly reducing the rocket fire from Gaza – with minimal Israeli casualties.

But after the government announced its choice, environmental groups petitioned the High Court against it, saying Galant’s alleged takeover of state lands near his home disqualified him for the job. Then, while this case was still pending, state comptroller and retired judge Micha Lindenstrauss began his own probe.

We don’t know exactly what Lindenstrauss discovered, since his full report wasn’t made public. But we know he concluded that Galant was less than truthful in two documents: an affidavit filed by his lawyers to the court, and an earlier letter to the Israel Lands Administration. Attorney General Yehuda Weinstein then decided that because of these untruths, he could not defend Galant’s appointment in court. And since the government knew the court wouldn’t approve an appointment the attorney general opposed – even though his reason for opposing it (the alleged untruths) had nothing to do with the reason for the petition (the alleged land grab) – it bowed to the inevitable and rescinded the appointment.

We also know three other things. First, whatever Galant’s alleged untruths were, they don’t amount to criminal offenses. Nobody is talking about indicting him for perjury; yet lying to a court on a substantive matter that could affect the outcome of a case is very definitely a criminal offense. This implies that at least the alleged affidavit lie was a fairly minor one.

More importantly, however, it means we are talking about an ethical rather than a legal violation. And neither the comptroller, the attorney general nor the court ought to be deciding whether someone is morally unfit for a certain post; their job is to determine legal unfitness.

Second, it’s very easy to make mistakes, especially about incidents that occurred years ago, as Galant’s alleged land grab did. This is particularly true of minor details, but repeated studies have shown that it can be equally true of major ones.

In the famous gorilla suit experiment, for instance, half the people present would have vehemently denied afterward that someone in a gorilla suit had walked across the basketball court, nor would they have been deliberately lying: They simply had no recollection of having seen such a thing. Memory plays funny tricks on everyone. Thus while it’s obviously possible that Galant lied deliberately, it’s also possible that his memory was simply at fault.

Finally, legal professionals aren’t always the best judges of whether something is a deliberate lie or an honest mistake, even though theoretically, that is their job. A classic example is then-Justice Minister Yaakov Neeman’s indictment for perjury in 1996. The indictment was approved at the highest professional level, by then-State Attorney (and now Supreme Court Justice) Edna Arbel. Yet it was thrown of court without Neeman even being asked to present his defense.

Why? Because the indictment stemmed from minor errors in Neeman’s testimony on a certain issue – for instance, he cited one event as occurring in 1992 rather than 1991 – that he himself discovered and reported to both the police and the High Court. The trial judge sensibly concluded that indicting people for trying to correct honest errors in their testimony would gravely impair the legal system’s ability to discover the truth. Yet where the judge saw an honest effort to correct honest mistakes (and I suspect most people would agree), an equally senior legal professional like Arbel saw grave and deliberate lies.

So were Galant’s untruths mistakes or deliberate lies? Were they major ethical violations of the kind that outweigh his decades of dedicated and successful military service, or where they minor ones of the kind that all people make occasionally, precisely because they are human beings rather than angels?

Without the facts, we have no way of judging for ourselves. Nor is there any one right answer; reasonable people of goodwill could easily disagree. Indeed, even the jurists aren’t unanimous: Several senior jurists, including the man who drafted the IDF’s code of ethics, wrote Weinstein last week to argue that Galant’s alleged untruths shouldn’t disqualify him.

But here’s what we do know: The people we elected to make precisely these kinds of judgment calls were denied the right to do so. The decision was made instead by an unelected comptroller and an unelected attorney general, thanks to an unelected court that has repeatedly ruled the attorney general’s moral judgments binding on the elected government. That isn’t a victory for democracy, as one prominent commentator Orwellianly claimed, but a travesty of it.

For if the decision goes sour – if, say, the second-choice candidate botches a vital military operation – it is the elected government that will get the blame, not those unelected officials. The latter thus have that most dangerous of all commodities, power without responsibility. And the government is left with the worst of all worlds: responsibility without power.

The writer is a journalist and commentator.