Sunday Supreme Court Justice Edmond Levy presided over a hearing on a petition submitted by one Shimshon Cytryn requesting to be released from Dekel prison and placed under house arrest. Justice Levy deferred his ruling to a later date.
Cytryn, 19 a yeshiva student from the community of Nachliel in the Binyamin Region, is accused of attempted murder. Last June 28, two groups of teenage boys pelted one another with rocks on the Muwassi beach area in Gaza adjacent to the Israeli community Shirat Hayam. As the fight raged for three days without IDF intervention, the Israeli press set up shop near the boys and waited.
On June 28 the media sprang into action. Channel 1 filmed a series of narrow lens video clips which showed only the Israeli youths – including Cytryn — throwing rocks. Then Yediot Aharonot reporter Yitzhak Saban "heroically" inserted himself into the drama. He jumped before the cameras and "saved" a Palestinian youth whom he and his fellow reporters claimed had been critically wounded by the Israeli youths in a manner that recalled "a lynch." The next morning a photo of Saban's "intervention" was on the front page of Yediot. Television and radio news broadcasts led with stories about the "lynching" carried out by "right-wing extremists." They reported that the Palestinian "victim" was hospitalized in Gaza and fighting for his life.
Yet that Palestinian "victim" was in and out of the hospital in the space of two hours. The picture of health, he gave multiple interviews to Arab and European reporters where he expounded on the "heroic battle" he and his friends fought against the "Jewish settlers." The fact of the "victim's" miraculous recovery from his life threatening wounds was not reported in the Israeli press until several days later and then the story was hidden in laconic reports on the inside pages of the papers.
The "lynch" story was manufactured against the backdrop of a steady drop in public support for the Sharon government's plan to expel all the Israeli residents from Gaza and northern Samaria. Polling data showed that less than 50 percent of Israelis supported the plan. But the "lynching" story reversed the trend. In the space of 24 hours, the public's support for the withdrawal rose to over 60 percent.
After the expulsions were completed last August, IDF commanders, including then OC Southern Command Maj. Gen. Dan Harel admitted that there had never been anything even vaguely resembling a lynching. But the crime's fabrication did not prevent the police from arresting Cytryn nor did it did stop the state prosecution from charging him with attempted murder. So now Cytryn sits in prison awaiting trial for a crime that was never committed.
THE LEGAL environment that enabled situations like Cytryn's to arise is part of the judicial legacy of retiring Supreme Court President Aharon Barak.
Barak has presided over the Court for 11 years. As a self-declared "judicial-statesman," he used his position on the bench to reshape Israeli society and politics in his own image through his "constitutional revolution."
Barak's revolution placed the judicial branch above the legislative and executive branches. The elevation of the high court was enacted in four ways: First, the Court gave standing to petitioners who were neither directly nor indirectly affected by the matters they brought before the Court.
Second, by cleverly interpreting a series of new Basic Laws to say something their drafters had never dreamed of, Barak was able to gain the power to overturn lawfully promulgated legislation.
Third, the Court empowered itself to intervene in government decisions by raising the standards of "permissible actions" by the government and the Knesset in a manner that constricted the freedom of elected officials to set policy and legislate laws.
Finally, Barak insisted that "everything is justicible."
The consequence of all these actions was the effective transfer of executive and legislative authority to the judiciary. As a result, private and public behavior that has traditionally been seen as the realm of morality and prudence; military decisions regarding Israel's national security that had previously been under the exclusive authority of the executive; ideological questions that had been the preserve of private citizens and state bodies; and religious questions that had been the exclusive reserve of religious authorities, now all came under the authority of the Supreme Court.
As he was establishing his power to overturn government and legislative decisions, Barak also consolidated his control over the judiciary. Using his control over the judicial selection process, over the past 11 years Barak transformed Israel's judiciary into a near unitary organism whose members are overwhelmingly united in their support for Barak's political agenda and his use of the judiciary as a means of forcing his political agenda on the Israeli public.
Barak's political agenda is one of leftist, post-Zionist multiculturalism and radical secularism. Barak used various methods to advance his agenda. While refusing to ever consult Jewish legal traditions, he has given anti-Israeli, non-binding UN General Assembly documents and International Court of Justice advisory opinions the weight of international law and has incorporated these "international laws" into Israeli law.
HE PUSHED the idea that elected leaders are not allowed to make their best faith judgments about Israel's defense, economy or ideological foundations. Working indirectly with far Left special interest groups that have eagerly embraced Barak's throwing open of the Court's doors to politics and flocked to the Court to gain through judicial fiat what they cannot hope to gain at the ballot box, Barak has ruled lawful, good faith government decisions regarding the defense of Israel and other national policy issues to be illegal.
Aside from that, through a legal precedent he himself established, Barak rendered our elected officials subject to blackmail by the legal bureaucracy. Barak's Court ruled that all ministers indicted for any crime must resign their offices. As a result, the police and state prosecution, backed by the Court, can effectively fire political leaders by indicting them on the basis of flimsy or non-existent evidence. Such charges led to the resignations of Justice Ministers Ya'acov Neeman and Haim Ramon and former Internal Security Minister Rafael Eitan, all of whom expressed opposition to some aspects of Barak's policies. Former Justice Minister Tzahi Hanegbi was neutralized in office by a criminal probe against him which remained open throughout the course of his tenure.
THROUGH HIS rulings, Barak made clear that some people's human and civil rights are more equal than others. He barred the IDF from utilizing certain tactical measures that protect the lives of the troops because Barak said those measures impinged on the human rights of civilians who sheltered wanted terrorists. Barak ruled that Arab farmers' free access to their crops outweighs the right of Israelis to defenses capable of protecting them from terrorist infiltration.
Retired justice Mishael Cheshin explained that Barak's support for the expulsion of all Israelis from Gaza and northern Samaria made Ariel Sharon and his son Gilad immune from indictment for what appeared to be clear acceptance of bribes. In his words, "If Sharon had stood trial, there would have been no disengagement."
And of course, under Barak's rule, religious Israelis could expect little to no legal protection for their human or civil rights. Last year Barak's Court enabled the abrogation of their freedom of
expression by approving the police decision to prevent buses from traveling to licensed demonstrations; he indirectly approved police harassment and violence against demonstrators; he enabled unindicted citizens to be barred from their homes and prohibited from seeing their families. He ruled that they could be divested of their property rights without due process and without equitable restitution by the government; could be divested of their livelihood without due process or equitable restitution; could be prevented from running for office; and could be held for months in administrative detention.
All of these decisions are part of the means through which Barak's "enlightened society" is cultivated and his "democracy" is protected.
UNFORTUNATELY for Shimshon Cytryn and the 65 percent of Israelis who in a poll last week said they believe that the Court's rulings are motivated by political interests rather than law, the guard will not change when Barak retires next week.
His hand-picked successor Justice Dorit Benisch not only subscribes to his judicial philosophy, during her 31 years in the State Prosecution, Benisch stacked the prosecution with what she referred to in a recent interview with Yediot as attorneys who "worked in accordance with the same values" that she ascribes to. As she has made clear through her actions and words, Benisch's "values" are post-Zionism; hostility towards the military; hostility towards religious Zionists; support for the Palestinians; and support for anti-religious social forces and pressure groups.
As Benisch replaces Barak next month she faces a situation where only 32 percent of Israelis think that she is qualified for office, and only 33 percent of the public has full faith in the Court. This is in contrast to the 85 percent of Israelis who had full faith in the Court in 1995.
Since it is clear that she will continue and attempt to widen Barak's usurpation of governing authority in Israel, the question that arises is whether our political leaders will have the courage to curb the court's power.
Unfortunately, given our current crop of politicians, there is every chance that Shimshon Cytryn will be tried and convicted of a crime that was never committed.
Originally published in The Jerusalem Post.