by Mike Kelly
“When you lose a child, you want to pull the covers over your head and make the rest of the world disappear. But you can’t do that,” he said. “I am not a sovereign nation. I cannot wage war.”
But he could go to an American court. And that’s exactly what Stephen Flatow planned to do to hold his daughter’s killers accountable.
Chapter 9
The Israeli community of Beit El sits on a gentle hillside in the central West Bank, overlooking the Palestinian city of Ramallah and the mosque where Hassan Salameh asked Majdi Abu Wardeh to carry out the suicide bombing of the Number 18 bus on Jaffa Road. A marshy ribbon of flat fields separates Beit El (“house of God” in Hebrew) from Ramallah (“high place of Allah” in Arabic).
As the Olso peace process slowly toppled into disarray in the late 1990s after the bombings orchestrated by Hassan Salameh and others, Palestinian activists in Ramallah regularly marched along a narrow road that bisects those flatlands to demonstrate their disdain for the Israelis of Beit El. Often the marchers threw rocks at the Israeli soldiers who guarded Beit El. Sometimes they set fire to abandoned cars and discarded tires. Sometimes they fired guns.
After a few years, some of the activists devised an informal nickname for the road across those contentious flatlands that linked the two communities, especially after several Palestinians died in gun battles with Beit El’s soldiers. They called the area “martyrs’ crossroads.”
On a Monday morning in June 1997, an armored convoy drove a shackled Hassan Salameh through the intersection near “martyr’s crossroads” and led him into a military courtroom in Beit El. Salameh faced almost four dozen murder charges—for the men, women, and children his bombs killed a year earlier, including Matthew Eisenfeld and Sara Duker. But Salameh had come with his own message. He wanted to die, a martyr, sentenced to death.
Salameh’s murder trial was not a galvanizing event in Israel. Journalists did not ignore it, but in a nation where terrorist bombings are a regular occurrence and bomb scenes are quickly cleaned up, the trial of one of Hamas’s most deadly bomb-makers seemed relatively low-key. Almost none of the families of the forty-six people who died in the three suicide bombing attacks that Salameh orchestrated during ten days of mayhem in late February and early March of 1996 attended, in part because traveling to Beit El was not an easy trip for many Israelis. Also, many families were still too emotionally distraught to face the man behind one of the most devastating bombing campaigns in long history of the Israeli-Palestinian conflict.
The Eisenfelds and the Dukers did not come to Beit El. But their absence had nothing to do with the grief they endured. Arline, Len and Vicki had not been fully told about Salameh’s role in the bombing, much less that he was on trial for murder. Likewise, Israeli investigators had not notified Stephen Flatow about the identities of Palestinian operatives involved in Alisa’s death. Nor had anyone told Flatow about the suspected links between Salameh’s circle of Hamas operatives—notably Yahya Ayyash, Mohammed Deif, and Adnan al-Ghoul—and the Islamic Jihad militants who carried out the bombing attack on the bus with Alisa. It was as if Salameh was a lone wolf and that his trial was an isolated event even though he was arguably one of the deadliest mass murderers in Israel’s history.
Salameh’s appearance in Beit El was not his first court appearance. Two months earlier, he was brought to another military court near the Gaza Strip, where he learned of the charges against him. Salameh was not silent and offered a strong hint regarding his motive for his killing spree—a motive he would repeat in Beit El. Turning to several reporters in the court that day, he said: “I believe what I did is a legitimate right my religion and all the world gave me, the right to defend my land, my country, and myself as a Palestinian.”
As Salameh sat in the courtroom in Beit El with a lawyer who had been appointed to serve as his defense counsel, Israeli Army Colonel Ilan Katz studied him. Katz was not a combat officer but a military lawyer. After serving in the Israeli Army’s judge advocate corps as a prosecutor for more than a decade, he had been promoted to judge. While American military judges spend most of their careers with cases involving soldiers charged with crimes that range from assault, drunkeness, and robbery to rape and murder, Katz had focused a large portion of his time on cases involving Palestinians who had been charged in terrorist attacks against Israeli targets. For Salameh’s trial, Katz was not alone as the judge. A lieutenant colonel and a major joined him to form a three-judge panel.
Like many judges, Katz looked for a sign of fear or even mild apprehension in the short, stocky Palestininan man now in his courtroom. But he found none. “He was strong,” Katz said years later of Salameh. “He was very arrogant.”
Salameh’s demeanor did not surprise Katz. Five weeks earlier Salameh had already pleaded guilty to the forty-six murders he was charged with. For this trial, there would be no witnesses, no arguing between lawyers over admissibility of crime scene photos, chemical analysis of the bomb material found on the bus or even eyewitnesses’ testimony. “The defendant admitted the offenses attributed to him,” Katz announced as he began the proceeding. “According to the confession, we convict the defendant.”
Before going ahead with arguments by the prosecutor and defense attorney on what sort of sentence the judges should impose on Salameh, Katz outlined the evidence. The judge noted that the defendant did not object to the evidence against him. “This abstention,” said Katz, “constitutes a strengthening of the evidence that was filed by the prosecution.”
Katz began with the February 25, 1996 bombing of the Number 18 bus. He pointed to Salameh’s admission during his interrogation by Israeli police a year earlier of how he met with Hamas operatives on the West Bank, how Majdi Abu Wardeh was recruited as the suicide bomber, how the bomb was assembled, and how Salameh gave precise instructions for blowing up the bus. Katz pointed out that autopsies of the victims showed that many had been struck by ball bearings and other shrapnel that had been packed around the bomb. He noted that Wardeh’s body had been identified through DNA samples taken from his parents by Israeli Shin Bet agents at the al-Fawwar refugee camp.
Katz then turned to the second attack that Salameh orchestrated on February 25, 1996—the bombing of the bus stop near Ashkelon—and his final attack a week later on another Number 18 bus on Jaffa Road.
The whole proceeding took an hour. Although the reading of the evidence against Salameh and the formal announcement that he was guilty were important, the real drama and key question before Katz and the two other judges was Salameh’s punishment.
Katz wasted no time addressing that issue. After the verdict, he moved quickly to a discussion of the possible sentences that could be imposed. Katz appointed an Israeli army sergeant as stenographer and another sergeant as interpreter, then turned to Lieutenant Colonel Avinoam Sharon, the military prosecutor, to speak first.
Sharon was one of Israel’s most experienced and savvy military lawyers. He also became a liaison to the US Justice Department and a close advisor to Shin Bet officials who were shaping a counterterrorism strategy against Palestinian militants. Unknowingly, he also forged a unique connection to Matt Eisenfeld and Sara Duker. Sharon was almost two decades older than Matt and Sara. But he earned his undergraduate degree on the same college campus where Sara later earned hers—Columbia University—and just a block from Jewish Theological Seminary where Matthew had been enrolled. After studying law at Hebrew University, Shraron became a military prosecutor in Israel.
After years of laboring in military courtrooms, Sharon had become an administrator who assigned military prosecutors to different cases throughout the West Bank. He had not prosecuted a case for several years. But for the Salameh case, Sharon’s commanding officer ordered him back into the courtroom. Sharon was considered Israel’s best military prosecutor. Israel wanted to make sure nothing went wrong.
Sharon began his work months before. He assembled files on each victim and o
ften spent his evenings studying autopsy reports and examining photos of the dead. It was gruesome work but Sharon felt he had to do it. Although the Salameh case obviously had an enormous political impact on the Oslo peace process, Sharon did not want to lose track of the fact that Salameh’s bombs had killed forty-six people. Sharon vowed that he would mention each victim’s name and offer a short description of who they were, no matter how ordinary their lives.
When he opened the files for Sara and Matt, Sharon noted that many of their friends had told Israeli police that they planned to marry. Sharon placed Sara’s and Matt’s files together. When it came time to talk about them, he vowed to speak of them as a couple—together.
As he prepared his prosecution strategy, Sharon anticipated that Salameh would plead not guilty and that his trial would be long and complicated, with numerous arguments over the small details of evidence. No matter. Sharon expected those sorts of arguments. But when Salameh pleaded guilty, Sharon feared that he would lose a chance to focus as much attention as possible on the victims and, in particular, the horrific nature of their deaths. As Judge Katz moved the trial to a discussion of possible punishments for Salameh, Sharon decided he would first speak of the people who died.
Sharon rose from his chair and began to read the names—first, the twenty-six victims from the Number 18 bus on Jaffa Road on Sunday, February 25, 1996, including Matt and Sara and Ira Weinstein, who died of burns six weeks later, then the name of the lone person who died at the bus stop in Ashkelon an hour later, and finally the nineteen additional victims on the Number 18 bus that was blown up by a suicide bomber on the following Sunday, March 3.
“May the Lord avenge their blood,” Sharon said.
Sharon then turned his attention to Salameh and a legal argument that would not only set the tone for the proceedings but would affect Salameh’s own life and his future.
“All of these individuals were murdered in cold blood by this defendant, who, in three attacks carried out forty-six murders,” Sharon began. “This is not a matter of three offenses but forty-six separate acts of attacks against human life.”
Even before presenting any evidence, Sharon wanted to emphasize what he described as the “particular nature and special circumstances of the offenses” and asked that the three judges before him convict Salameh of forty-six separate murders, then give forty-six separate and consecutive life sentences in prison so that Salameh would have little chance of being freed on parole.
“Our belief in the reverence of human life must also be expressed in the sentencing of an offender,” Sharon said. “If the request of the prosecution sets a precedent, this is because the acts of the defendant form a precedent and require a precedent in response. This court must create and establish this precedent. This is the demand of the prosecution, the demand of the victims and our duty to the memory and honor of the forty-six victims.”
Sharon’s presentation was emotional and strategically erudite. As Judge Katz saw it, the mere reading of the names of forty-six people who had been killed by the bombs that had been made by Hassan Salameh was an effective way to demonstrate to the court the enormity of his crimes while also reminding the judges of how many innocent people had lost their lives.
Sharon was not through. He turned from the victims’ deaths to Salameh and to a question that Israel’s judges, prosecutors, defense attorneys, and political figures had wrestled with for years: What about the death penalty?
Since Israel’s founding in 1948, its judicial system had executed only one prisoner, Adolf Eichmann, one of the key architects of the Nazi Holocaust. In 1960, after an international manhunt, Eichmann was tracked down in Argentina by Israel’s Mossad spy service and captured. Without the Argentine government realizing what had taken place, a team of Mossad agents smuggled Eichmann back to Israel aboard an airplane. After a meticulous trial that attracted attention from around the world and galvanized Israel’s citizens, Eichmann was found guilty of war crimes and hanged at an Israeli prison in 1962.
Since then, a variety of Israeli politicians, as well as journalists and lawyers, had argued for the death penalty in some especially brutal terrorist cases. Althouh Israeli judges always had the option of imposing the death penalty, no other execution had taken place in Israel since Eichmann’s.
With Salameh’s capture a year earlier, Israelis were reminded of the large number of his victims and the possibility of the death penalty was raised once again.
Sharon decided he needed to address the subject as straightforwardly as he could. He began by reminding the judges that the death penalty was hardly a “criminal theory” in Israel. Even though only one prisoner had been executed, the death penalty was still “a policy” in Israel and judges had the power to impose it. But Sharon noted—as if the judges did not already know—that “the considerations” in pondering whether to sentence a prisoner to death “are moral ones.”
Sharon said he had already consulted with a variety of experts who guided him in shaping a proposal for sentencing Salameh if he was convicted. But before outlining his idea to the judges, Sharon cited a recent letter in an Israeli newspaper from the father of a young woman from Canada who had been killed by terrorists on a Tel Aviv beach.
The father argued against imposing the death penalty. He wrote that executing terrorists would fulfill a wish by many of them to be “identified as martyrs and heroes” and could prompt other Palestinian militants to “aspire for a martyr’s death.” Instead of hanging terrorists or executing them by some other method, the father suggested putting them in prison until they died there of natural causes. Such a punishment would not be viewed as martyrdom and was hardly the sort of glory that other potential terrorists might want to aspire to. Or as Sharon noted: “Nobody would be eager to rot in prison alone and forgotten, aged, and celibate.”
Sharon made one more point. A life in prison, with forty-six consecutive life terms, is precisely the most effective and just sentence for Hassan Salameh and “what we request for the Court to do to the Defendant before us.”
Salameh’s court-appointed lawyer rose. He agreed with Sharon that the judges should not sentence Salameh to death. But he also said forty-six consecutive life sentences was unfair. “This is a question that belongs to the world of philosophy more than to the world of law,” he said. “One sentence is certainly enough.”
It was a brief and legally precise argument. Like any good defense attorney who represents a client who is guilty of a ghastly crime and has already pleaded guilty, Salameh’s attorney was trying to convince the judges to impose the most lenient sentence. In this case, that would be a single sentence of life imprisonment for Salameh which, in the years to come, might offer him a better chance to be paroled.
Salameh had other ideas, however. As his attorney returned to his chair, Salameh rose to address the court. He turned first to the prosecutor “who considers me to be a murderer.”
“I ask to make a distinction on the subject of murder,” Salameh said. “There is a difference whether a person commits murder for the sake of murder and one who commits murder who is requesting a right.” That right was the liberation of the Palestinian people, Salameh said, echoing the sentiments he had voiced at his previous court appearance.
Salameh turned to his own fate and to what the judges might decide.
“For my acts, I request that the death sentence be imposed and executed,” he said.
Judge Katz and the two other military judges took another week to decide to send Salameh to prison or to the gallows.
On the following Monday, July 7, Katz again found himself looking at Salameh in the Beit El courtroom. Salameh’s words the week before bothered Katz, especially his request for execution. To Katz, Salameh seemed to be daring his Israeli captors to kill him, even hinting that Katz and the other judges were afraid to sentence him to death because they feared an increase in Hamas terrorist attacks. On the other hand, Kat
z worried that keeping Salamah alive, even with a sentence of life in prison, left open the possibility that he might be turned loose one day in an exchange of prisoners between the Palestinians and the Israelis.
Alternatively, Katz had also been advised by the Shin Bet and the Mossad that executing Salameh could cause more harm in the future for Israelis by prompting more terrorist attacks, not only in Israel but in other nations too. Avinoam Sharon’s own proposal as prosecutor to keep Salameh in prison for the rest of his life rather than executing him had been guided by that sort of advice from counterterror experts who feared reprisals if Salameh was killed. Sharon had spent many years watching criminals like Salameh. He knew that what they feared most was the loneliness of a prison cell.
Judge Katz, however, saw other problems with keeping Salameh in prison. Years later, as he reflected on the trial, Katz said he felt that Salameh’s continued imprisonment could prompt Palestinian militants to kidnap an Israeli soldier and demand that Salameh be released in order for the soldier to be spared from death.
“The major question,” Katz eventually decided, “is whether this punishment can reduce such acts of terror.”
Katz’s parents managed to escape the Holocaust during World War II and move to Israel where he was born. Katz never had to face the sort of evils that Nazism posed for Jews. Yet much of his life in Israel had been framed by the persistent danger of terrorist attacks. As a military prosecutor before becoming a judge, Katz had played a role in presenting evidence in dozens of terrorist cases. But as a judge, he felt a greater weight of responsibility to make sure he made a correct decision, not just for the accused terrorist standing before him in a courtroom, but for his nation as well.
“There are few things which are more difficult,” he said. “First of all, you have to punish or hold a trial of the accused who is your enemy and you have to separate your own feelings and your own thoughts and try to make the trial as objective as you can. Sometimes you read the papers and see by your own eyes what those acts of terror cause. Also, you know that when you judge a simple criminal—let’s say, someone who steals money or kills someone—you know that usually he doesn’t aim his aggression against you. But when you judge a terrorist, you know that he aiming his violence against Israel as well as against you as a judge.”