BREAKING: Israeli Gag Order Protects Judge Who Lost Libel Suit Against Haaretz

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חשיפה: המשפטן הבכיר שהפסיד בתביעת דיבה נגד “הארץ” הוא היועמ”ש לשעבר, מיכאל בן-יאיר. בישראל יש צא”פ על זהותו

Former Israeli attorney general and Judge Michael Ben Yair has gotten himself into a world of embarrassment and trouble.  To be more precise, his daughter got him into a world of trouble.  But there’s plenty of his own making as well.  The moral of this story may be that if you’re a lawyer and want to have a relationship with another lawyer, make sure you don’t end it on bad terms.  And don’t give a loan to a lover unless your relationship is rock-solid.  Otherwise, heartache (and lawsuits) will be knocking on your door.

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Ben Yair’s daughter, Dana, was divorced and raising two children.  Like her father, she was a lawyer.  In 2008, Dana met a man through an internet dating site.  They began a relationship.  He was also a lawyer; a prosecutor to be exact.  Things progressed rapidly and he moved into her home with her children and they lived together for several months.  During the course of the relationship, according to the story as reported by Haaretz, she asked him for help in repaying a bank loan.  He agreed, and gave her $20,000.

There came a point when he ended the relationship.  That’s when he asked her to repay the loan.  Instead of getting his money back, he got a bill–from Dana.  She demanded that he pay her rent for the time he lived in her home and that he also pay for the depreciation of her car which he used as well.  He refused and pointed out that she had a legally binding obligation to repay the loan.

Eventually, she did.  But when the prosecutor looked at the check she gave him it was not Dana’s check, but a check endorsed by her father.  That’s when things got very strange.  Within a week, he received a strange phone call from M., also a lawyer and a mutual acquaintance of theirs (both Dana and her ex-boyfriend).  The caller demanded the return of $7,500.  She threatened that if he didn’t pay the money to Dana, that he would find himself in a great deal of trouble.  She would file a complaint with the police charging him with using drugs and accepting bribes from those charged with crimes.

There was a back story between the prosecutor and M. as well (of course there would be in a case like this!).  M. had represented him in his divorce proceedings and he had had an affair with her (M.) as well.  Presumably, if the ex-boyfriend was guilty of any of those crimes, then M. knew about them in her capacity as his lawyer or his lover (now, presumably a spurned lover).  So how could she use that against him?

He called the judge to find out whether the intermediary was truly speaking in his name, and not just for his daughter.  The judge responded: “I won’t speak about matters which I know nothing about.”  The prosecutor next spoke to the judge’s wife.  He asked where he should deliver the check.  She told him to bring it to M., who was representing Dana in the matter.  This convinced him that Ben Yair was involved in the matter.

The ex called the police, and charged Dana, her parents and M. with extortion.  Then Bar Ner filed her own complaint against her ex-boyfriend.  The police closed his case “for lack of benefit to the public.”  They also closed the case Bar Ner had brought due to the lack of ability to establish guilt.

When the prosecutor questioned the police why his case was closed without any investigation he was told it was due to the “classification of the case.”  Though this seemed to imply that the judge was being protected by the police, the officer testifying denied this.  When asked to offer examples of similar cases in which an investigation was rejected he said there weren’t many he could think of.  Though the police officer claimed that financial claims between couples were not issues police investigated, the ex-boyfriend’s lawyer noted that couples can engage in extortion, and that this is a serious crime.

Then things got stranger still.  A Haaretz reporter got wind of the case and published an article about it.  Judge Ben Yair was extremely unhappy with the publication of his personal dirty laundry and sued Haaretz for libel.

As readers here will know, though I’m an advocate of freedom of the press, I’m not necessarily a fan of Haaretz.  I’ve pointed out many errors of fact and judgment it’s committed over the years.  So I have no soft spot for Haaretz regarding this case.

But I don’t understand what, other than vanity or hurt feelings, would drive a respected public figure to challenge a news report when your case is so weak?

At any rate, Haaretz just announced that it won the lawsuit (in English here).  In addition to being out the amount of his daughter’s loan which he repaid, he was fined nearly $20,000 by the court when it found the newspaper’s story to be reasonable and that if followed appropriate journalistic standards (court decision is accessible here–in Hebrew).  Ben Yair asked the judge if he would place his decision and the case under gag order until his appeal was adjudicated.  The judge refused, but did grant a gag on the names of the individuals involved in the lawsuit.

That’s where I come in.  There’s only one reason I’m reporting this story.  Because Ben Yair requested a gag order preventing Israeli media (including Haaretz) from identifying him as the losing party.  Naturally, as a former judge he earns protection from his colleagues, even one who just pronounced him the loser in a case.

This makes absolutely no sense.  If a judge wants to use the legal system to avenge his hurt feelings and loses, why should he receive any protection?  There is a presumption in Israel that if someone is a respected public servant that they have a right to expect to be protected, no matter what offense they may commit.

Why?  This turns Israel into a parochial society which protects the Good Old Boys not because they deserve protection based on merit, but because of their connections, status, and wealth.

The vast majority of the subjects of this blog are right-wing Israelis.  Many of them serve in the national security apparatus.  I don’t shed tears over exposing their misdeeds or secrets.  But in this case, Michael Ben Yair served as attorney general under Yitzhak Rabin.  He’s a throwback to the days when the Labor Party actually existed in more than name only (as it does today).  Ben Yair serves on the board of B’Tselem.  He’s spoken at events hosted by Yesh Din at which he’s expressed deep regret that he didn’t order the evacuation of the settlers of Hebron when he was in power.  If anything, Ben Yair is one of the good guys (or at least as good as you’re going to get in the contemporary Israeli power structure).

UPDATE: I’ve consulted an experienced Israeli attorney who believes the judge’s decision in this case was wrong.  He feels that Ben Yair has a definite chance of winning on appeal.

So I don’t derive any satisfaction from exposing Ben Yair’s secrets or breaking this gag.  However, the principle of transparency and freedom of information is more important than a single individual, no matter what qualities he may possess.