Cablegate: Powers of Inquiry: The Proposed Winograd Committee V. A

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Leza L Olson 09/19/2006 01:05:20 PM From DB/Inbox: Leza L Olson

Cable
Text:

UNCLAS TEL AVIV 03705

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

DISSEMINATION: POL
CHARGE: PROG

APPROVED: AMB:RHJONES
DRAFTED: POL:RBLAUKOPF/PVROOM
CLEARED: DCM:GCRETZ; POL/C:MSIEVERS; POL:SCROWLEY

VZCZCTVI401
RR RUEHC RUEHXK
DE RUEHTV #3705/01 2611034
ZNR UUUUU ZZH
R 181034Z SEP 06
FM AMEMBASSY TEL AVIV
TO RUEHC/SECSTATE WASHDC 6405
INFO RUEHXK/ARAB ISRAELI COLLECTIVE

UNCLAS SECTION 01 OF 02 TEL AVIV 003705

SIPDIS

E.O. 12958: N/A
TAGS: PGOV PINR KJUS IS LE

SUBJECT: POWERS OF INQUIRY: THE PROPOSED WINOGRAD COMMITTEE V. A
STATE COMMISSION OF INQUIRY

REF: A) TEL AVIV 3232; B) TEL AVIV 3370

1. Summary and Introduction: After several false starts (reftels),
Prime Minister Olmert proposed and the government approved a
"Government Review Committee" to "examine the functioning of both
the political leadership and the security establishment regarding
the campaign in the north." The Government Review Committee will be
chaired by retired Judge Eliyahu Winograd and will include two
reservist major generals - Menahem Einan and Haim Nadel, as well as
two academics - law professor Ruth Gavison and professor of public
administration Yehezkel Dror. Acting Justice Minister Meir
Sheetrit, who initially favored a "State Commission of Inquiry," has
stated publicly that the Winograd Committee will enjoy many of the
powers of a state commission -- specifically in regard to
subpoenaing witnesses and taking testimony under oath. Even with
such powers, a Government Review Committee is restricted to drafting
recommendations rather than prosecuting individuals.

2. Summary Continued: This cable contains our analysis of the
current principal differences between a "Government Review
Committee" and a formal "State Commission of Inquiry," and is based
on a reading of the relevant laws and expert opinion from the Office
of the Legal Advisor to the Knesset. Opposition leader Binyamin
Netanyahu and others -- including demonstrators in downtown Tel Aviv
-- continue to voice support for a state commission named by the
Supreme Court President rather the committee named by Olmert, but
only three ministers in Olmert's cabinet did not vote for the
Winograd Committee. End Summary.

--------------------------------------------- ---
Olmert's Proposal: A Government Review Committee
--------------------------------------------- ---

3. The points below pertaining to the Government Review Committee
are derived from the provisions of the Government Law of 2001 and
the Law on Committees of Inquiry of 1968.

-- The members of the review committee are appointed by a government
minister (NB: the PM in this case) and headed by a retired judge
(NB: in this case Winograd).

-- The mandate of the committee is to be drafted by the appointing
minister (NB: the PM in this case and it was reported he has asked
for assistance from the Acting Minister of Justice).

-- At the request of the appointing minister and with government
approval, the minister of justice may determine that the committee
may exercise powers similar to those of a State Commission of
Inquiry in regard to summoning of witnesses and taking testimony
under oath -- including testimony from the PM.

-- The minister who appoints the committee is obligated by law to
bring its findings before the government.

-----------------------------
A State Commission of Inquiry
-----------------------------

4. The points below pertaining to the State Commission of Inquiry
are derived from the provisions of the Law on Committees of Inquiry
of 1968.

-- The head of the Supreme Court (NB: newly named President Dorit
Beinish) appoints the members (normally a three-person panel) and
names the chairperson.

-- The mandate is determined by a decision of the government.

-- A State Commission of Inquiry is empowered more extensively than
a Government Review Committee in regard to subpoenaing of witnesses
and evidentiary procedures (e.g., it may issue a search warrant to
obtain evidence -- unlike a Government Review Committee).

-- The State Commission of Inquiry must draft a report on its
findings and is authorized to add recommendations. This report must
be submitted to the government.

---------------------------------------------
ELEMENTS COMMON TO COMMITTEES AND COMMISSIONS
---------------------------------------------

5. The following aspects are common to both the Government Review
Committee and the State Commission of Inquiry:

-- The findings, in the form of a report and recommendations
(including recommendations regarding specific persons if such are
made) are to be presented to the government.

-- The report is to be published; however, the committee/commission
is authorized to withhold publication in whole or in part if this
risks jeopardy to state security, foreign relations, vital economic
interests, the safety or privacy of an individual or to the method
of operation of an agency or body which has investigative powers
under the law.
-- A state commission is required to provide evidence to any
individual or the family of any dead individual whose reputation may
be impugned by its investigation -- a time-consuming, but
integrity-preserving requirement that is apparently also required of
review committees as well.

-- The committee/commission is authorized to publish the minutes of
its hearings in whole or in part. (NB: The cabinet communiqu of
September 17 noted that the minutes of the committee's discussions
and any other materials will be entrusted to the State Archives.)

-- The findings and recommendations of the committee/commission may
not be used as evidence in any legal proceeding.

-- The government is not bound to adopt or implement the committee's
recommendations.

-- In the event that operative recommendations are made by the
committee and are not acted upon by the government, a suit may be
filed with the Supreme Court by an individual or organization (such
as the Movement for Quality Government which organized the
demonstration in Tel Aviv on September 9 to demand a State
Commission of Inquiry).

-- If the Supreme Court sees fit, having weighed the matter from a
legal perspective (not a political or public interest perspective),
it is empowered to order implementation of the recommendations of
such a report.

-- Such a directive by the Supreme Court would require compliance on
the part of the government.

6. Since the mandate of any committee determines in large measure
its powers and possible findings, it is not yet possible to say how
far the Winograd Committee falls short of the scope and authority of
a State Commission of Inquiry - or how far back the committee will
look into the history of events preceding the most recent Lebanon
War. Press reports suggest that it will limit its work to the
period since Israeli withdrawal from Lebanon in 2000. However, PM
Olmert's Foreign Policy Advisor Shalom Tourgeman told the Ambassador
September 14 that the Committee will be allowed to look all the way
back to the 1996 Grapes of Wrath period.
JONES

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