AG asks court to end government inquiry into allegations of police spyware abuse
Chief concern is that the commission is being used as a platform to discredit the handling of aspects of Netanyahu’s criminal investigation
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
The Attorney General’s Office asked the High Court of Justice on Tuesday to annul the government’s decision to establish to a commission of inquiry to probe the alleged illicit use of spyware by law enforcement agencies, insisting that the commission is acting in contravention of the law.
The Attorney General Office’s chief concern is that the commission is being used as a platform to discredit the handling of aspects of Prime Minister Benjamin Netanyahu’s criminal investigation for corruption.
In its filing, it argued that the government’s insistence in apparently allowing the commission to review aspects of Netanyahu’s investigation exceeded the boundaries of the executive branch of government and encroached on the judiciary’s functions.
Justice Minister Yariv Levin also filed his response to the petition against the commission on Tuesday, insisting that the panel was not empowered to intervene in open criminal cases, and arguing anyway that the government has broad discretion in establishing such commissions, which the judiciary has only very limited powers of review over.
The commission was formed in August 2023 to examine the alleged illicit use of spyware by law enforcement bodies against Israeli citizens and government officials.
Petitions were filed against the commission’s establishment by the Black Robes anti-judicial overhaul protest group on the grounds that it could interfere with, and unduly influence, Prime Minister Benjamin Netanyahu’s ongoing criminal trial.
Attorney General Gali Baharav-Miara objected strongly at the time to the possibility that the commission could review police and State Attorney’s Office activities relating to the criminal investigation into Netanyahu, or any criminal cases currently before the courts.
In its filing on Tuesday, the Attorney General’s Office insisted that the mandate given by the government to the commission enabled it to review open cases. It noted that the language of the mandate states specifically that the commission would be the one to review concerns by the attorney general and the state attorney that its work was infringing on specific open cases or could obstruct an investigation.
The response also noted that the commission had in June sought to hear from indicted individuals in specific criminal cases and that as a result the High Court had on September 3 told the commission that it was prohibited from summoning and hearing from police officials.
“No political or any other official has the authority to trespass the boundaries of the judiciary and the law enforcement system, to harm their independence, or in general to serve as an extrajudicial body that establishes findings regarding individual criminal cases or constitutes, directly or indirectly, another court of inquiry,” the Attorney General’s Office insisted in its response to the petition.
“Authorizing a committee on behalf of the government to examine individual criminal cases, including pending cases, bypasses the basic rules of government, without authority, without a basis in law, while creating authority to intervene and influence criminal cases, out of nowhere,” it said.
Levin’s response, filed by independent counsel since the Attorney General’s Office opposed the government’s position, insisted that the commission had no intention or ability to interfere in ongoing legal cases.
“Nowhere in the government’s decision is it said that the committee is supposed to or can intervene in pending legal proceedings and presume to give instructions to judicial courts hearing those cases,” Levin’s response said.
The justice minister also argued that if a government commission of inquiry into alleged wrongdoing by law enforcement agencies was prohibited then there was no other avenue to review such allegations.
“The government has broad discretion regarding the establishment of commissions of review or investigation, so that the scope of judicial review of the decision to establish or not a commission of review or investigation to examine a specific issue, and the nature of the investigation to be conducted, is extremely limited, and the rejection of such a decision is reserved for exceptional and rare cases the like of which has yet to appear before the court,” argued Levin.
The commission of inquiry into the spyware scandal is tasked with examining the conduct of police and the State Attorney’s Office regarding the procurement of, surveillance with, and data collection through cyber tools, such as the Pegasus software.
In 2022, the Calcalist newspaper reported that the police used spyware tools to spy on dozens of high-profile Israeli figures, including family members and associates of Netanyahu, without any judicial oversight.
An investigation by the police and an interim report by Deputy Attorney General Amit Marari found Calcalist’s reporting to have been largely incorrect.
