Netanyahu and the Forbidden tree
Netanyahu and the Forbidden treey Hoffman

Who would have ever imagined that the repercussions of a guy who was caught mailing lotto tickets by mail in Kansas City, Missouri over 110 years ago, and an IDF soldier caught with pot on him might affect the future government of the State of Israel?

A few weeks ago, the then Attorney General of Israel, Avichai Mandelbilt, offered Bibi Netanyahu a deal where he could avoid prison time and have most of the charges dropped if he pleaded guilty to Moral Turpitude which would essentially keep him out of politics for the next seven years. Thus far, Netanyahu has refused such a deal, because the definition of moral turpitude is unclear and not a legal term, and because jpeople are saying that the willingness to drop the charges showed that they are shaky and the whole point was simply to keep Netanyahu from being chosen for prime minister again.

These two aforementioned individuals could very well influence how Netanyahu will choose to act in regard to this case.

The reader may also be asking, “How, exactly, does halakha come to play here?”

BACKGROUND

Okay, let’s start at the beginning.

It was on Thursday, December 21, 1911. Fremont Weeks was arrested by a police officer at the Union Station in Kansas City, Missouri. What had he done? He used the postal service to transport lottery tickets in violation of the Criminal Code. Apparently, police officers had illegally entered his home and searched it, taking possession of letters, envelopes and other items – violating the Fourth Amendment, assuring citizens of a right to privacy.

Weeks’ attorneys made the point in court and his conviction was overturned by the Supreme Court unanimously.

It was this case that gave birth to a concept later called by Judge Felix Frankfurter, “Fruit of the Forbidden Tree.”

Essentially, this doctrine states that evidence that was acquired illegally remains tainted and cannot be used to convict a defendant. It is a doctrine that exists in the United States and throughout Europe.

We now fast forward to a case in Israel. From 1948 to 1992, Israel’s legal system had no such doctrine of “Fruit of the Forbidden Tree.” But then in 1992, the Knesset passed the Basic Law: Human Dignity and Liberty – which pretty much granted basic protection for human rights – including criminals.

In 2005, an IDF soldier who was AWOL was about to be placed in a military jail. After being searched, a small packet of cannabis fell from his undergarments. The military police did not inform him of his rights and used evidence, namely the soldier’s confession, which was illegally obtained from the encounter to further pursue charges against him. The omission was held by the trial court to have been illegal and intentional.

On May 4th, 2006, the Israeli Supreme Court issued a ruling called, “Issacharov versus Military Prosector.” The IDF soldier’s lawyers argued that the confession should not be admissible in evidence, because it was made only because the interrogator had failed to advise him of his right to consult a lawyer. Under Israeli law, there was no precedent for the exclusion of evidence because of the illegal method of obtaining it. Issacharov’s lawyers argued that the Israeli court should, in fact, adopt such a doctrine, in the spirit of the Basic Law: Human Dignity and Liberty, which was enacted in 1992.

The court did exclude the evidence in that case, but issued a ruling that it is up to the court in each case.

DIFFERENCE BETWEEN THE AMERICAN AND ISRAELI UNDERSTANDING

There is, however, an essential difference between American law and current Israeli law in how the doctrine is viewed. This author predicts that the differences in how the doctrine is viewed may play a central role in Israel’s future government.

In Israel, the rationale for this doctrine is solely a human rights issue. In the United States, however, the rationale for the “Fruit of the Forbidden Tree” doctrine is to ensure that the United States not become a police state.

PEGASUS

It is this author’s prediction that it will soon come out that the evidence against Netanyahu in Case 1000, Case 2000, and Case 4000 was obtained through the use of a spyware program called “Pegasus.” Pegasus is a software that was developed by an Israel company called NSO Group, founded by Shalev Hulio.

It can be secretly installed on both Android phones and iPhones. Pegasus allows the operator to “jailbreak” almost any phone, obtain passwords, photos, and take over the phone’s camera and microphone to secretly photograph and record. Its use has been found to be as early as 2012 and perhaps even before then.

Last month, it was reported by Calcalistech that Pegasus was unlawfully used by the Israeli Police to monitor citizens as well as foreign nationals who were infected by the software. Calcalistech further reported that the surveillance was ordered by high-ranking police-officers, and was carried out without warrants or judicial supervision. If it turns out that Pegasus was used illegally against Netanyahu, then we may have a case of “Fruit of the Forbidden Tree.”

NETANYAHU’S POSSIBLE STRATEGY TO FIGHT CHARGES AGAINST HIM

It is possible that Opposition Leader Bibi Netanyahu may try to promulgate or employ the American understanding of the doctrine – in that it should not just be a means of protecting human rights but its use should be applied to ensure that Israel not become a police state.

AN OVERVIEW OF TRENDS AND INFLUENCES UPON ISRAELI LAW

When Israel first became a state, the goal was to ensure stability and a smooth implementation of Israeli law. To this end, there was a law passed in section 11 of the “Ordinance of Government and Legal Orders of 1949” that the Criminal Code Ordinance of 1936 (specially created for British Mandate Palestine) was to be considered law unless or until it was amended later on.

In the late 1970’s when Begin’s government came into power, British legal influence was essentially put out to pasture. Israel’s legal minds looked toward the United States and elsewhere for precedence and or guidance. Section One of the Foundations of Law Act of 1981 stated as follows: “If the court is faced with a legal question that requires a decision and cannot find an answer in legislation, case law, or by analogy, it shall decide in light of the principles of freedom, justice, rectitude, and peace of Israeli Legacy.”

HOW WOULD HALAkHA COME INTO PLAY?

It is an almost forgotten fact, but in 2018, Section 1 of the Foundations of Law Act was actually amended to explicitly reference Hebrew law as well, as a source of influence. This would seem to include Mishnaic, Talmudic, the responsa literature and the Halakhic codes that were adopted throughout Jewish history.

The Talmud on several occasions decries the police-like nature of a totalitarian government in Eretz Yisroel itself (see, for example, Bava Basra 3b regarding King Herod). Some would argue that the dangers of Israel becoming a police state are even greater than that of it happening in the United States..

Rabbeinu Bachya in his commentary on VaYikrah (4:22) discusses the inevitability of leaders sinning, and thus – the idea of the dangers of a police state are always a clear and present danger.

The verse states, “Asher Nasi Yecheta – when a leader will sin..” Rabbeinu Bachya writes, “It does not state, ‘If a leader will sin’ – rather it states ‘When a leader will sin’ - the matter is one of certainty. The reason is that the leader’s heart is filled with conceit and haughtiness.” Rabbeinu Bachya goes on to explain that the Torah (Dvarim 17:20) provides a counterbalance for the haughtiness of a king – he must carry a Sefer Torah with him at all times so that his heart not rise above his brethren.

The Nesiim as well were also provided with a counter-balance. They were instructed to bring the precious Avnei Shoham stones as a gift (Shmos 22:27). These precious stones were the same type that were found on the breastplate of Aharon HaKohain – the stones that were designed to achieve atonement. They thus had a humility-inducing effect to them, according to Rabbeinu Bachya.

THE CURRENT PRESIDENT OF ISRAEL

The current president of the State of Israel is Yitzchok Herzog, named after his illustrious grandfather, Israel’s former Chief Rabbi HaRav Yitzchok Herzog ob”m, a brilliant Rabbi, author, and someone who helped form the Vaad Hatzolah – an organization that saved thousands of Jews in the Holocaust. In his, “The Main Institutions of Jewish Law” which he had published in Dublin, Ireland in 1935, Rabbi Herzog writes:

“Robbed of her land, deprived of her national and spiritual center, scattered and dispersed to all the four corners of the earth.. the Jewish nation continued to cultivate and develop her system of law.. of so majestic awe-inspiring an origin, amidst conditions so uncongenial, so adverse, and has reared a structure of rare grandeur and beauty. Judaea has not yet received the meed of recognition and appreciation to which she is justly entitled upon that score.”

He continues, “Now, however, that Israel’s ancient prophetic cradle-land is being rebuilt by the united effort of her scattered sons all the world over, is it too much to hope that Jewish law may begin to arouse interest and focus attention?

The author can be reached at [email protected]