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

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UNCLAS        TEL AVIV 03366

SIPDIS
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    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

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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