Attorney general rejects Levin’s ‘conflict of interest’ allegation in spyware inquiry

Gali Baharav-Miara’s office nevertheless approves justice minister’s request to retain his own attorney ahead of panel hearings investigating law enforcement’s hacking of phones

Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter

File - Attorney-General Gali Baharav-Miara arrives to casts her ballot for the head of the Israel Bar Association at a voting station in Tel Aviv on June 20, 2023. (Miriam Alster/Flash90)
File - Attorney-General Gali Baharav-Miara arrives to casts her ballot for the head of the Israel Bar Association at a voting station in Tel Aviv on June 20, 2023. (Miriam Alster/Flash90)

The Attorney General’s Office on Sunday rejected Justice Minister Yariv Levin’s claim that it has a conflict of interest over the government’s spyware commission of inquiry, telling him it was obligated to speak up if the government exceeds its authority.

In a letter to Levin, Deputy Attorney General Gil Limon said the Attorney General’s Office was concerned the commission could undermine the legal system if it dealt with open legal cases and trials currently before the courts.

At the same time, Limon said the justice minister’s request to obtain independent legal counsel in petitions to the High Court of Justice against the government’s decision to establish a commission of inquiry was approved. The government must obtain the attorney general’s permission to hire independent legal counsel for court proceedings, if it so wishes.

The commission was formed in August to examine alleged illicit use of spyware by law enforcement bodies against Israeli citizens.

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 has objected to the possibility that the commission will include police and State Attorney Office activities relating to the criminal investigation into Netanyahu in its inquiry, and therefore opposes the government’s position in the petitions against the commission.

Left: Justice Minister Yariv Levin speaks during a Constitution, Law and Justice Committee meeting at the Knesset in Jerusalem, January 11, 2023. (Yonatan Sindel/Flash90); Right: Attorney General Gali Baharav-Miara attends a conference at the University of Haifa, December 15, 2022. (Shir Torem/Flash90)

The fight over the spyware commission of inquiry is just one of a long list of conflicts between the attorney general and the government in which Levin has said he would like to fire her but cannot due to the complexities of doing so and of hiring a replacement.

In his letter, Limon strongly rejected Levin’s claims on Friday regarding what the justice minister alleged was the Attorney General Office’s conflict of interest.

Limon insisted that the justice minister’s claim that the Attorney General’s Office has a conflict of interest in the case “lacks any basis.” He argued that as the government’s legal advisory body it is obligated to express its opinion when it believes the government is seeking to “take action which exceeds the boundaries of its authority,” to ensure that the government and its commission act lawfully.

“This obligation is all the more important when the government seeks to take action which is likely to harm the independence of the law and justice systems in the State of Israel, and influence ongoing criminal procedures, in contravention of foundational principles of the rule of law,” wrote Limon.

“The claim that the Attorney General’s Office is at a conflict of interest when it points out legal flaws and a concern over interference with investigative and trial procedures, while harming the law and justice systems, is baseless,” the deputy attorney general added.

Deputy Attorney General Gil Limon attends a Knesset Constitution, Law and Justice Committee hearing on the government’s bill to limit the courts’ use of the unreasonableness doctrine, July 4, 2023. (Yonatan Sindel/Flash90)

Baharav-Miara told Levin last month that the commission does not have the authority to probe open legal cases, and in particular, expressed concern that the committee may interfere with Netanyahu’s ongoing corruption trial.

The commission is tasked with examining the conduct of police and the State Attorney’s Office in matters touching upon 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 Prime Minister Benjamin 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 however.

In his letter on Friday to Limon, Levin asserted the Attorney General’s Office has a conflict of interest in this case because its activities would be investigated by the panel.

“The attempt to restrict the committee’s efforts and to derail its ability to carry out a comprehensive examination of an issue so fundamental to civil rights and the protection of privacy is extremely serious, especially since it was done by one of the bodies itself under investigation,” Levin added.

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