by David Landau
f A bout of flu at the beginning of December enabled Sharon to deliver another heavy hint through the mouth of Ehud Olmert, whom he asked to stand in for him at the annual graveside memorial ceremony for Ben-Gurion. “Let us assume that we can conquer the whole of Eretz Yisrael by force of arms,” Sharon (through Olmert) quoted the founding father. “I’m sure we can. But what then? We will create a single state. But the state will want to be democratic. There will be general elections—and we will be in the minority … When the choice before us was the whole of Eretz Yisrael but no Jewish state, or a Jewish state but not the whole of Eretz Yisrael, we chose a Jewish state.” To drive the point home, Sharon (Olmert) added: “In the near future, the leaders of Israel will need to gather all their inner strength, all their Zionist faith, in order to determine our destiny with the same remarkable fusion of vision and realism [as Ben-Gurion’s]…that requires painful compromise for peace.”
g See Appendix.
h In truth, nor did Kurtzer want to do it. His colleagues at State regarded the Weissglas-Rice side letter as little short of a disaster because it gave official U.S. sanction to settlement activity within the “construction line,” wherever that was, of each individual settlement within the blocs. “We would rather have had settlement activity without the sanction than with the sanction,” Kurtzer admitted. But that was the U.S. policy as formulated by Rice and her staff in Weissglas’s letter, and it prevailed. Weissglas’s verdict on Kurtzer: “A nice chap, but a bit strange, and he wasn’t really in the loop about the big moves. Ambassadors are a bit passé.”
i Ya’alon dismisses the involvement of Brigadier General Eival Gilady—a representative, after all, of the defense establishment—in the early, secret stages of the initiative as “improper … This is a case of improper behavior by an improper officer … That’s why he had to quit the army and was not promoted to commander of the planning branch as he wished … In army planning procedures people come up with all sorts of scenarios. To make out that one such scenario was the basis of the disengagement plan, and hence arrogate the disengagement to oneself, was not exactly accurate.”
j Etrogization was a word invented later by the prominent political commentator Amnon Abramovitz to depict what he said was the media’s mollycoddling of Sharon during this period. An etrog is a species of citrus used in Jewish ritual on the Festival of Tabernacles, or Sukkot. It has a delicate little crownlike growth at its tip. If that breaks off, the fruit is no longer kosher for the ritual. The etrog is traditionally wrapped in layers of wadding to protect it. By analogy, Sharon, though embroiled in criminal inquiries, was wrapped in protective wadding by the Israeli media, which strongly supported his disengagement plan.
CHAPTER 16 · ISLAND IN THE SUN
The alternative narrative seemed to have the timing on its side. Sharon unveiled his disengagement plan precisely the day after a new attorney general took office. No more would the witty, rumpled, stern, but ultimately soft Elyakim Rubinstein hold the key to the prime minister’s legal and hence political future. In his seven years as attorney general, the religiously pious and reputedly rightist Rubinstein had ordered police investigations against all three prime ministers whose governments he advised.a But he stopped short of indicting any of them.
The new man, Menachem “Menny” Mazuz, had risen to the position of deputy attorney general over years of quiet toil inside the Ministry of Justice. His political sympathies were unknown. As a member of the secular intelligentsia, he most likely favored peace over “Greater Israel.” If so, he might hesitate before bringing down a prime minister actively engaged in withdrawing Israeli forces and settlements from sizable swaths of the occupied territories. That, at any rate, was the buzz that quickly began to circulate on the right.
On Mazuz’s desk soon after he settled into his new office was a recommendation from his most senior subordinate, State Attorney Edna Arbel, to indict Sharon for receiving bribes. Her recommendation, moreover, was public knowledge; she or someone else had made sure to leak it. Furthermore, Arbel was angling to become a justice of the Supreme Court. If she succeeded, Mazuz knew, he would meet her again, probably frequently, during his term as attorney general. But the configuration between them would be different then: he would be pleading before her. He would need to be brave, some would say foolhardy, to overrule her now. All this was uncomfortably clear to Sharon, his sons, and the rest of his friends and advisers on the “ranch forum.”
To appreciate quite how bad Sharon’s situation and his survival prospects were at this crucial moment in his prime ministership, we need to wade back into the two affairs that were threatening to end his career in obloquy. The “Greek island affair,” the subject of Arbel’s recommendation to indict him, had been looming steadily larger since Sharon had fobbed it off a year before in his famously blacked-out television broadcast. He had boasted to viewers of his son Gilad’s business prowess and high earning potential. Gilad hadn’t even been questioned by the police, he had added smugly.
Since then, both Gilad and he himself had undergone lengthy police questioning. Gilad, on July 31, 2003, and again on September 3, stolidly exercised his right to remain silent. He also refused to hand over documents and tape-recordings that the police wanted. They couldn’t obtain a search warrant to look for them, Gilad’s lawyers argued, because Gilad lived in the home of a serving Knesset member, Ariel Sharon, which was protected by his parliamentary immunity.
Sharon père had received the police interrogators at his official residence in Jerusalem on October 30, 2003, and sat with them for six straight hours. He spoke a great deal and even joked with the detectives, a police source disclosed later. But at the end of the day, the source complained, the prime minister didn’t provide clear answers to the questions he was asked.1 He stuck to his guns: he had nothing to do with Gilad’s business affairs; he was not the owner of Sycamore Ranch (his sons were); there was no connection between Gilad’s contract with the building contractor Appel and Appel’s help to him during the 1999 Likud primary. Nor was his own involvement in hosting the Greek delegation in any way connected, or criminal.
In December, there was some (relatively) good news for the Sharons. The Tel Aviv prosecutor’s office recommended indicting Appel for giving bribes to various officials, including Sharon, but recommended closing the file on Sharon for accepting bribes—on grounds of lack of sufficient evidence. In Israeli law it is possible, though highly unusual, to indict a bribe giver while exculpating the bribe taker because he did not have the requisite criminal intent. He did not know, in other words, that he was being bribed.
But the relief at Sycamore Ranch was short-lived. Edna Arbel, it soon became clear, was not adopting the recommendation from Tel Aviv; she believed Sharon should be indicted, too. On January 21, 2004, during the “interregnum” between the retirement of Attorney General Rubinstein and the appointment of Attorney General Mazuz, Arbel, as acting attorney general, quickly filed the indictment against Appel for bribing Sharon. This was widely seen as an attempt to present Mazuz with a fait accompli. He would have to indict Sharon, too, or else resort to that seldom-used distinction between bribe giver and bribe taker. He would have to contend, in effect, that the Sharons were too naive to understand what Appel was about. “Senior officials are to be held to a stricter standard,” Arbel asserted in a speech. “In offenses involving governmental corruption we are obliged to indict, unequivocally obliged.”
Reluctantly, Sharon and his aides began discussing a retreat to a new line of defense: the law providing that a prime minister, unlike other ministers, is not required to resign if indicted, only if convicted. This would be a hard line to defend in the battlefield of public opinion. But they made ready to try.
Under the strict letter of the law, they had a good case. Whereas the Supreme Court had laid down a strong judge-made line of precedent, starting back in 1993, that a government minister, if indicted, must resign or must be removed by the prime minister, statute law provided explicitly t
hat a prime minister need step down only if he was convicted of a serious crime and his conviction was upheld on appeal. In Sharon’s case, the general expectation was that even if he were indicted, the trial and appeal would take many months or even years. No rush to resign, then, the prime minister’s advisers contended.
Would public opinion go along with that? Much would depend on lawyers’ arguments. The statute protecting the prime minister from summary removal was originally passed as part of the reform of the electoral system in the 1990s. Under that reform, the status of the prime minister became constitutionally different from that of other ministers. He was a semi-president. He was elected personally and directly by the public, in a separate ballot.
Since then, though, the electoral system had been changed back, mainly, as we saw,b at Sharon’s own dogged insistence. The prime minister was now, once again, in constitutional terms just a name on his party’s list of Knesset candidates, no different from the others, all elected in one single ballot.
But—and here was the rub—while many other provisions in the law had been changed back or abrogated by the Knesset, this one, about his removal from office for committing a crime, had been kept intact. An oversight, argued Sharon’s adversaries. Now that the electoral system had been changed back, the law reverted to the Supreme Court precedent. Not so, argued Knesset Speaker Rivlin, who was a member of the law committee in 2001. “We wanted to shore up the special standing of the prime minister even after the election system returned to the one-ballot vote.”
Edna Arbel was very clearly of the hard-liners’ mind. “The moment a criminal indictment is filed against a public figure, he is duty-bound to suspend himself from office,” she declared. She did not refer explicitly to the case of a prime minister, or specifically to Prime Minister Sharon. But behind the scenes she was working furiously to connect the dots.
By March 28, aided by a team of six handpicked government attorneys, Edna Arbel had completed her last major opus as state attorney and submitted it to Mazuz: The State of Israel v. Ariel Sharon. It was a complete draft indictment, accusing the prime minister and his son Gilad of taking bribes from David Appel, both in the form of political support from Appel in Sharon’s 1999 primary campaign and in the form of cash paid by Appel into the account of Sycamore Ranch as Gilad’s ostensible salary. In return, according to the draft indictment, Sharon had helped Appel with his plans to build a vast new residential suburb near the town of Lod and with his even vaster (but unsuccessful) plans to build the holiday paradise on the Greek island.
During the 1990s, the draft indictment recounted, Appel spent some $40 million buying up agricultural land in four villages around Lod. The largest tracts were in the village of Ginaton. His investment strategy depended on the lands eventually being rezoned from agricultural to residential. That was where Sharon came in. As the minister of national infrastructures with control over the powerful Israel Lands Authority (ILA), and later as prime minister, still with direct control over the ILA, Sharon took part in Appel’s plot by trying to get the bureaucrats to do the developer’s bidding.
As minister of infrastructures, he failed. Two successive directors of the ILA stood firm against Appel’s applications and against Sharon’s relatively subtle attempts to push them through. As prime minister, Sharon took the gloves off, the draft indictment charged. He announced that he was making the expansion and development of the down-at-heel town of Lod his “personal priority.” “Following that, defendant No. 1 [Sharon] took action to transfer lands in the Lod area, including the land of Ginaton, from the ILA to the Municipality of Lod, and to rezone the land for residential purposes. He did so knowing that the Ginaton lands had been acquired by Appel, that the ILA disapproved of residential building on them, and that his action would significantly further the commercial interests of Appel and his company.”
Regarding the Greek island, the draft indictment chronicled Sharon’s participation during 1999 at the dinners Appel gave for the two high-level Greek delegations whose visits to Israel he had arranged.c During that same year, Appel hired Gilad “for work of indeterminate nature,” in the words of the draft indictment, on the Greek island project. He was to receive $10,000 a month, plus a $1.5 million bonus when the Greek authorities licensed the project, plus another $1.5 million bonus once the project was up and running. “Appel and defendant No. 2 [Gilad] reached their employment agreement even though Appel had no idea of defendant No. 2’s professional abilities—other than that defendant No. 2 had no knowledge whatever of the field in which he was to be employed. Appel made the agreement with defendant No. 2 … in order to obtain the active help of defendant No. 1 both in promoting his real estate project in Lod and in advancing his Greek island project.”
Gilad’s services to the project, in quantity and quality, were “worth far less than what he was paid … For part of the time he did no work at all.” Yet Appel remitted to the Sycamore Ranch account a total of 2.6 million shekels over a period of less than two years, as Gilad’s salary. Appel also organized political and logistical help for Sharon in the 1999 Likud leadership primary. He promised to field “300 ‘suicidal’ activists” on Sharon’s behalf, and “he was active in circles susceptible to his influence in order to bring about the election of defendant No. 1 as leader of the Likud.”
Whatever the contentions in the hypothetical dispute between jurists, it is reasonable to assume that Sharon would have been forced out of office by massive political and media pressure had he been indicted as Arbel recommended. The charge was bribery, plain and unequivocal. It was not the nebulous catchall charge of breach of faith that had often been filed against unethical politicians, but less often made to stick.
Arbel’s indictment, however, was never filed. On June 15, 2004, Attorney General Mazuz announced that he was overruling her and closing the case against Sharon. The facts and findings, he said, didn’t “even come close to a reasonable chance of conviction.” He publicly accused Arbel of aiming at Sharon and then drawing the rings around him to turn her shot into a bull’s-eye. Arbel, meanwhile, had been appointed to the Supreme Court.
Mazuz, always low-key and unemotional, first telephoned the prime minister and informed him matter-of-factly of his decision. Sharon, at his most controlled, was similarly matter-of-fact. Mazuz then walked into a pre-convened press conference at the Justice Ministry and informed the nation and the world that he was closing the case. Beyond the personal drama, of course, his closely argued seventy-six-page legal opinion meant one thing: the disengagement plan was still on course.
His firm position, Mazuz explained, was that a public official, even a prime minister, should be judged by the same standards as anyone else. Not more leniently, but not more stringently either. The same burden of proof was needed to justify an indictment of a senior official. This, he insisted, contradicting Arbel, was the clear import of the Supreme Court precedents.
In Sharon’s case, that burden of proof had not been discharged. Not with regard to the alleged bribe: political help and cash payments. And not with regard to the alleged quid pro quo: Sharon’s attending the dinners and pushing for the rezoning of the Lod lands.
Sharon had known Appel for years, Mazuz wrote. He had known Appel’s father. Their families were friendly. Appel had often supported Sharon in the party. But he supported other people, too. In the 1999 primary he did seem to have helped Sharon in various ways, though the evidence was sketchy. At the end of the day, Mazuz wrote, Appel seemed to have helped Olmert more than he helped Sharon. Sharon in his interrogation admitted that he’d asked for Appel’s help but said he’d taken Appel’s pledges of support with a grain of salt. “These kinds of promises—sometimes they’re kept, sometimes they’re not. I never saw them as a binding commitment. Nor does anyone. Everyone knows the game … People feel important when politicians ask their help.” Mazuz tended to agree. “To discharge the burden of proof, you have to take account of the overall relationship between the giver and the receiver [of the all
eged bribe], and the overall circumstances of the case. You have to take account of what is considered acceptable, in life in general and in political life in particular.”
As for Gilad’s salary, the heart of the case, Mazuz conceded it was indeed generous. The whole Greek island project, he wrote, was “grandiose, some would say megalomaniacal.” The envisaged investment was $16 billion(!). The actual investment Appel made was substantial, and so were the salaries he paid to a string of professionals he hired. Mazuz refused to regard Gilad’s employment as a charade, as Arbel had done. He cited the testimony of the senior company accountant and an outside advertising consultant to the effect that Gilad had headed up the marketing and advertising side of the project, had put in long hours at the office, and had done his job well. There were dozens of businesslike, work-related conversations between him and Appel among the police wiretaps of Appel’s phone lines, although there were also political and personal conversations between them.
Regarding the lands around Lod, Mazuz wrote that all the evidence showed that as minister of infrastructures Sharon never pressured his officials to accede to Appel’s demands. And as prime minister, Mazuz continued, there was no proof that Sharon exerted undue influence on behalf of the Lod building plans. Granted, he pushed through a cabinet decision to “save Lod” through varied and extensive government-backed projects. These were handled by professional planning committees staffed by civil servants. There was no evidence of improper pressure from above or rubber-stamping by cowed officials. Sharon played a similarly active role in promoting development plans for other towns, where Appel had no commercial interests.