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Cablegate: Senator Specter and Israeli Chief Justice Barak

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Leza L Olson 08/24/2006 03:28:11 PM From DB/Inbox: Leza L Olson

Cable
Text:


UNCLAS TEL AVIV 03366

SIPDIS
CXTelA:
ACTION: POL
INFO: IPSC PD IMO RES ECON DCM AID ADM DAO AMB RSO
CONS

DISSEMINATION: POL
CHARGE: PROG

APPROVED: POL:NOLSEN
DRAFTED: POL:ARHOLST
CLEARED: NONE

VZCZCTVI004
RR RUEHC RUEHXK
DE RUEHTV #3366/01 2361117
ZNR UUUUU ZZH
R 241117Z AUG 06
FM AMEMBASSY TEL AVIV
TO RUEHC/SECSTATE WASHDC 5856
INFO RUEHXK/ARAB ISRAELI COLLECTIVE

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

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