This record is a partial extract of the original cable. The full text of the original cable is not available.

UNCLAS SECTION 01 OF 04 TEL AVIV 000522 
 
SIPDIS 
 
 
STATE FOR NEA/IPA TWILLIAMS, NEA/PPD AFERNANDEZ 
STATE INFO FOR ECA DPOWELL/CMCROUCH/MCAIN/LMOODY 
STATE INFO IIP RWINCHESTER 
JERUSALEM PASS ICD DANIELS 
 
SENSITIVE 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM OEXC OIIP KPAO SCUL IS GOI INTERNAL ISRAELI SOCIETY ISRAELI PALESTINIAN AFFAIRS
SUBJECT: Supreme Court President Barak Dubious of 
Current Knesset's Constitutional Agenda 
 
SENSITIVE BUT UNCLASSIFIED - PLEASE HANDLE ACCORDINGLY 
 
REF: A) 05 TEL AVIV 6717  B) 05 Tel Aviv 5490 
 
¶1. (SBU) Summary:  In the Ambassador's January 31 
meeting at the Supreme Court, Israel's Supreme Court 
Chief Justice Aharon Barak shared his views on Israel's 
constitutional future and his own future as he prepares 
to retire from the Court in September 2006.  He 
described fundamental points of judicial interpretation 
on which he disagrees with his friend U.S. Justice 
Antonin Scalia, with whom he debated publicly at a 
January 29 Law Symposium in Jerusalem celebrating the 
50th Anniversary of the Fulbright Program in Israel. 
Barak said he fears Likud MK Michael Eitan "and people 
further to the right" will keep trying to pass 
legislation to establish a separate Constitutional 
Court in Israel.  Their goal, he claimed, is to 
decrease the influence of the independent Supreme 
Court/High Court of Justice and increase the influence 
of a body that is designed to be subject to political 
influences from the legislative and executive branches. 
Barak also said he expects current Deputy President 
Justice Dorit Beinisch to succeed him as President of 
the Supreme Court and head of the High Court of Justice 
this fall, based on her seniority on the bench, and 
noted he is trying to finish most of the 40 or so 
remaining separation barrier-related cases still 
pending before the High Court before his retirement. 
End Summary. 
 
Wary of Current Knesset Draft Constitution 
------------------------------------------ 
 
¶2. (U) Ambassador Jones called on Aharon Barak at the 
Supreme Court in Jerusalem on January 31.  Barak is 
President of Israel's Supreme Court, Israel's top 
appellate court, and head of Israel's High Court of 
Justice, which is a court of first instance, ruling 
primarily in matters regarding the legality of 
decisions of state authorities at all levels, including 
the constitutionality of Knesset legislation.  An Econ 
officer, PD officer and PD's rule of law program 
specialist accompanied the Ambassador.  The Ambassador 
also greeted Justices Salim Joubran and Dorit Beinisch 
during a short tour of the Court. 
 
¶3. (SBU) Barak shared his views on the critical 
importance of judicial review and judicial independence 
in protecting democracy and its institutions.  Asked 
for his assessment of the latest efforts in the Knesset 
to draft and adopt an Israeli constitution, Barak said 
he is strongly in favor of a constitution and has been 
active for years in efforts to achieve a national 
consensus draft.  But he stressed that it would be far 
preferable for Israel to remain without a constitution 
than to adopt a bad constitution.  He was openly 
dismissive of Likud MK Michael Eitan, current Chair of 
the Knesset's Constitution, Law and Justice (CLJ) 
Committee, and of the draft Eitan plans to "roll out" 
at a special Knesset reception in mid-February.  Barak 
said he turned down Eitan's invitation to attend and 
speak at that reception.  He feels that the Knesset's 
current draft is not the right formula. 
 
¶4. (SBU) "Any constitution draft with a hope of earning 
wide consensus in a diverse society like ours will have 
to involve compromises," he said.  But Barak fears that 
the deal the current Knesset CLJ Committee appears to 
be pushing for involves adopting a written constitution 
in exchange for significant representation of the 
Jewish orthodox minority on a new constitutional court 
which would be created to adjudicate constitutional 
cases.  When asked about the version of a draft 
constitution recently completed by the Israel Democracy 
Institute (IDI), Barak replied, "That's a good text, 
and I'd support it." 
 
Constitutional Court a Bad Idea for Israel's Democracy 
--------------------------------------------- -------- 
 
¶5. (SBU) Barak went on to say he disapproves of the 
effort by Eitan and others every six months over the 
last couple years to adopt legislation that would 
establish a separate Israeli constitutional court, the 
judges of which would be appointed by the Knesset.  The 
goal of that legislation, in his view, is to make 
judicial decisions subject to political influence and 
remove or dilute a much-needed check on executive and 
legislative power.  "Prime Minister Sharon's views in 
this regard were very constructive, and that draft 
legislation thankfully never got very far in the past," 
he said.  Regarding the future, Barak said he did not 
know what mix of players would make up the Knesset's 
CLJ Committee after the March 28 elections. 
 
Protecting Civil Liberties in Israel's War on Terror 
--------------------------------------------- ------- 
 
¶6. (U) According to Justice Barak, there have been over 
80 petitions brought to the Supreme Court, seated as 
the High Court of Justice, regarding the route of the 
separation barrier.  Of these, about 40 were settled 
out of court in consultation between the plaintiffs and 
the government, and the GOI successfully adjusted the 
barrier's route in those cases.  Justice Barak remarked 
that on several occasions, he personally made 
suggestions to the GOI, and he felt that the State was 
usually flexible in adjusting the barrier's route.  He 
was optimistic that within the year the remaining 40 or 
so cases could also be resolved.  The cases taking the 
longest to adjudicate or settle are those related to 
the Jerusalem area, he said. 
 
¶7. (SBU) Barak defended the Court against the often- 
heard accusations that it is "dragging out" and 
preventing the completion of the separation barrier. 
He said that in some instances, the IDF did not issue 
the land confiscation orders required to build the 
barrier, which slowed down the process.  In addition, 
he commented that the GOI has changed the route of the 
barrier on its own, and these cases must then start 
again in court.  Barak mentioned that to prevent appeal 
after appeal, he is now creating 11-judge panels to 
review many types of cases which might prove 
controversial, rather than assigning normal 3-judge 
panels which hear the vast majority of cases before the 
Court.  (Barak explained that plaintiffs have the right 
to request appeals for their case to be "re-heard" by a 
larger panel of judges.  An 11-judge panel in the 
current situation, where only 12 Supreme Court justice 
positions are filled, is the largest possible panel, 
and precludes the possibility of re-hearings.) 
 
¶8. (U) Since the 1967 war, Palestinians in occupied 
West Bank and Gaza have had recourse to Israel's 
Supreme Court and High Court of Justice.  Barak noted 
that the Court has reviewed thousands of petitions 
regarding proposed IDF demolition of Palestinian homes 
and property in the West Bank and Gaza.  He explained 
that Israeli law dictates that house demolitions by 
Israel's security forces must be preceded by a judicial 
hearing by the High Court unless two criteria are met: 
1) the demolition is necessary to clear a path in the 
heat of battle, and 2) waiting for and/or conducting a 
hearing will affect the outcome of the battle.  Outside 
the actual "hot field" of battle, there are separate 
cases related to the effort by the IDF to use 
demolition of the homes of suicide bombers as a 
deterrent to future suicide bombings.  In those kinds 
of cases, he said, the Court has ruled that destruction 
of a home that belongs to anyone but the actual 
terrorist would be illegal because it constitutes a 
punishment of the family.  Similarly, he added, the 
Court has ruled that deportation or transfer of the 
family of a suicide bomber from the West Bank to Gaza 
would be unconstitutional/illegal, since it would be a 
punishment of persons other than the guilty person. 
 
--------------------------------------------- ------- 
Scalia v. Barak: Opposing views on Judicial 
Interpretation and Role of the Judge in a Democracy 
--------------------------------------------- ------- 
 
¶9. (U) On January 29, two days before the Ambassador's 
courtesy call, Barak and Associate U.S. Supreme Court 
Justice Antonin Scalia gave keynote lectures and then 
debated at a public Law Symposium co-sponsored by the 
United States Israel Educational Foundation (USIEF) 
with Hebrew University's and IDC Herzliya's Law 
Schools.  The topic of the two-day symposium, organized 
to mark the 50th Anniversary of the U.S. Israel 
Educational Foundation (Fulbright Israel), was 
"International Influences on National Legal Systems." 
Scalia had argued against the relevance of comparative 
(foreign) and international law cases in the Supreme 
Court's deliberations and interpretation of the 
Constitution, while admitting that "to his regret," 
that wasn't the prevailing view on the Court today and 
such cases would likely continue to be cited in U.S. 
courts with increasing frequency.  Barak argued in 
favor of the relevance of comparative and international 
law in domestic adjudication in certain circumstances, 
and elaborated his "purposivist" approach to judicial 
interpretation in contrast to Scalia's "originalist," 
text-based interpretation.  Some 500 Israeli and 
international legal experts, judges, students, press, 
and public attended the January 29 session, at which 
the Ambassador and Israeli MFA Director General Ron 
Prosor and others provided welcoming remarks.  Later in 
the evening, the spirited debate and exchange continued 
as the Ambassador, Israel's Foreign and Justice 
Minister Tzipi Livni, Justices Barak and Scalia and 60 
other guests attended a closed Fulbright Israel 50th 
Anniversary dinner also organized by USIEF. 
 
¶10. (SBU) In their January 31 meeting, Barak described 
to the Ambassador his strong disagreement with Justice 
Scalia's "originalist" philosophy, and explained his 
own view that "purposive" interpretation was the more 
appropriate approach in bolstering democratic 
institutions and serving the cause of justice.  "What 
good is a dead Constitution?  The U.S. framers intended 
it to be a living Constitution," he said. 
Characterizing Justice Scalia as one of the most 
influential judges currently on the U.S. Court, Barak 
lamented  -- as he had done many times to Justice 
Scalia's face, he quickly added -- that the Justice 
takes such a black and white, text-based view, which 
Barak said he sees as extremely regressive and 
fundamentalist.  Barak emphasized the critical role of 
judicial review in the U.S. and Israeli systems as a 
key tool in the protection of democratic institutions 
of government, adding, "If you don't protect democracy, 
democracy won't protect you."  He explained that the 
concept of judicial review was not included in the text 
of the U.S. Constitution and is not enshrined in the 
series of Basic Laws that currently serve as Israel's 
informal constitution.  Rather, judicial review in 
Israel was established by an Israeli Supreme Court 
decision drafted by Barak in 1994 in Israel's version 
of America's landmark 1803 Marbury v. Madison ruling. 
 
¶11. (SBU) Justice Barak spoke highly of his expected 
successor as Chief Justice, Dorit Beinisch, and said he 
expects her to continue along more or less the same 
lines of judicial interpretation and outlook as his own 
when she succeeds him in September. 
 
Praise for Fulbright and PD Rule of Law Programs 
--------------------------------------------- --- 
 
¶12. (U) Barak, who was a Fulbright scholar in the U.S. 
in 1966-67, reiterated to the Ambassador his high 
praise for the excellent public diplomacy speaker and 
exchange programming that the Embassy has organized 
with Israel's judiciary over the years.  In an earlier 
meeting (Ref A), he had outlined to the PAO some ideas 
for future areas of PD programming, including longer- 
term exchanges and/or sabbaticals in the U.S. for 
Israeli judges and seminars and speakers on topics of 
mutual interest.  The Ambassador told Barak he 
supported those ideas and would work to implement as 
many as possible.  Barak personally thanked the 
Ambassador for the efforts of PD's rule of law program 
specialist (also present at the meeting), whom he said 
he had worked with for nearly a decade.  He encouraged 
the Embassy to continue to work with his successor on 
the Court to keep up such mutually beneficial programs, 
which he said provide much needed exposure for Israeli 
judges to foreign legal systems.  As he told the PAO in 
November, "comparative domestic law and international 
law are both becoming more important worldwide, and the 
legal field is not immune to the overall trend toward 
globalization." (Ref B highlights post's recent rule of 
law related programs.) 
 
-------------- 
Personal Plans 
-------------- 
 
¶13. (U) Barak said he eagerly awaits his retirement in 
September.  The government had asked him to stay on as 
President for two extra years, something which would 
have required special Knesset legislation raising the 
mandatory retirement age for all judges from age 70 to 
age 72.  He turned down the offer.  "I approved their 
idea of draft legislation raising the retirement age 
for judges, specifically on the condition that it would 
not apply to me," he laughed.  A prolific author both 
before and during his time on the Court, Barak looks 
forward to time to write more and also lecture abroad 
for a couple months each year, including at Yale 
University Law School, where he has lectured frequently 
over two decades.  He emphasized that he intends to 
spend most of his time in Israel, where his input seems 
most relevant and needed. 
 
 
JONES