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Sunday, April 29, 2007
Amir Oren: Winograd Committee terms of reference preclude recommendations against Olmert

[Dr. Aaron Lerner - IMRA: This very interesting article by Amir Oren was
promptly forgotten.]

The fix is in
By Amir Oren Haaretz 6 April 2007

For the past half a year, a wily lawyer has been sitting in one of his
houses in Jerusalem and chuckling to himself about how stupid these Israelis
can be. Since September 17, when the Committee to Examine the Events of the
Campaign in Lebanon 2006 - more popularly known as the Winograd Committee -
was established, the Israeli public has been waiting expectantly for its
report. Most intriguing of all is what the report will do to the prime
minister, Ehud Olmert, and whether it will send him home. But the Jerusalem
lawyer has no cause for concern. Olmert was careful to immunize himself when
he drew up the committee's brief: The immunization lies in the formulation.
It protects Olmert, and at the same time also discriminates against the
Israel Defense Forces.

It's usually argued that the problem lies in the fact that it was the
government that appointed the committee. But the "original sin" is not the
affinity between the two bodies, but the committee's rather barren
authority: Olmert dictated to the committee a prohibition from ousting him
from office. Anyone who is on tenterhooks waiting to see how the prime
minister emerges from Dr. Winograd's heart surgery is the victim of a snow
job. Winograd was authorized only to check Olmert's blood pressure.

It makes no difference what the panel ends up saying about Olmert - it
cannot make him resign. Olmert will thank the committee for its important
efforts and excellent work, will establish a ministerial committee to
implement the recommendations and correct the faults, and will turn to face
the real danger - of the criminal variety - which is hovering over him from
the direction of Micha Lindenstrauss and Menachem Mazuz.

The Winograd Committee was born in agony. As an investigatory body, whose
members were chosen by the government that appointed it - as distinct from a
state commission of inquiry, whose members are chosen by the president of
the Supreme Court - the Winograd panel has been from the outset considered
to be second-class. The committee labored hard to obtain public validation,
without which it is nothing, and gradually obtained a modicum of credit.
True, the committee sometimes did its best to erode that credit - by paying
house calls on the senior figures who testified, by refusing to open its
doors and by evading an order of the High Court of Justice to make public
the transcripts of the testimonies.

The committee would have been forgiven all this, had it turned out that its
report was serious, trenchant, impartial and unequivocal. That won't be
possible, at least with regard to Olmert. No knowledge of secret material is
needed to grasp this point. The material that has been publicized is enough:
the Winograd Committee's terms of reference, authored by Olmert, together
with the committee's announcement on March 13 regarding the interim report
that is due to be published this month.

Findings, conclusions, recommendations

The key to the committee's great deception lies in the difference between
three terms: findings, conclusions and recommendations. A finding is a
matter of fact - that is, the general said he called at 9 o'clock, the
minister remembers that he spoke at 10, the Winograd Committee checked and
found the exact time. A conclusion is an opinion of the committee members,
arrived at after weighing the findings using as a scale the reasonable
behavior that can be expected from office-holders or institutions. The
findings can be appalling and the conclusions can be negative, but only the
recommendations place an expulsion order in the realm of the practicable.

A certain confusion is liable to arise from the use of the term "personal
conclusions." In the Hebrew formulation, when a person is asked to draw such
conclusions, the intention is clear: He is being asked to resign (before he
is fired); when he is the object of personal conclusions of others, this is
only a different term for evaluating his performance. The evaluation can be
one of "failure," but this is still not a recommendation for his ouster, for
conditional punishment or for any other action.

The terms of reference that established the Winograd Committee is formulated
craftily. The preamble states that the committee shall submit "findings,
conclusions and also recommendations, as it sees fit, regarding the
political echelon and the defense establishment." However, in the binding
clauses of this mandate, the politicians evaporate and the army is left
alone in the field. With regard to the political echelon, the committee is
authorized to examine and come up with "findings and conclusions"; with
regard to the defense establishment - "findings, conclusions, and also
submit recommendations, as it sees fit."

Vive la difference. When it comes to the chief of staff, the GOC Northern
Command, the director of Military Intelligence, the GOC Home Front and the
divisional commanders, the committee can recommend that they be dismissed
(or, alternately, reinstated, if their resignation was unjustified). The
prime minister is "above" recommendation.

This omission is significant. If the author of the terms of reference chose
to cite the three terms in one clause and only two of them in another, we
can assume that this was intentional. He prevented the committee from making
recommendations with regard to the political echelon, at least the current
ones (when it comes to the political echelon of the six years that preceded
the war - on whom Olmert wants to throw the responsibility - the committee
has a carte blanche). The committee, too, is aware of the difference. It
fortified itself within the regular refuge of committees that protect
politicians - "systemic recommendations" - and when it published its
mandate, it added two lines: The panel decided to refer in its "findings and
recommendations" also to the deployment and preparedness of the political
echelon and the defense establishment vis-a-vis the various threatening
scenarios since the IDF's evacuation of southern Lebanon, but chose not to
make recommendations.

The result is that Olmert and his predecessors in office, Ehud Barak and
Ariel Sharon, are protected against recommendations. But not the three
previous chiefs of staff - Dan Halutz, Moshe Ya'alon and Shaul Mofaz - and
their generals and officers.

Peretz: Not self-evident

As for Amir Peretz, it is essential to determine first whether the defense
minister is "the political echelon" or "the defense establishment." The
obvious answer - both - is not self-evident. If he is the political echelon,
Peretz is spared recommendation, whereas if he is the defense establishment,
his situation is like that of Halutz and the generals. The term "political
echelon" has no binding definition. It is in widespread use, popular,
ostensibly the opposite of the military echelon, but is in fact open to
contradictory interpretations. The official definition of the term
ma'arekhet habitahon, defense establishment, appears in the 1998 lexicon of
IDF terminology. It includes three organizational elements: "The political
echelon, headed by the minister of defense, who leads and activates the
defense establishment, and alongside him the deputy minister, aides and
advisers, and staff units directly subordinate to him; the military
establishment - the IDF General Staff, headed by the chief of staff, who is
under the authority of the government and subordinate to the minister of
defense; the civilian defense establishment - the Ministry of Defense, of
which the administrative echelon is headed by the director general, who is
subordinate to the minister, the ministry's branches and units, and the
corporations that are under the responsibility of the minister of defense."

According to this definition, the Shin Bet security service, the Mossad
espionage agency, the Atomic Energy Commission, the Israel Police and the
National Security Council are not part of the defense establishment.
Accordingly, the Winograd Committee was not authorized to examine them - or
the Foreign Ministry, other civilian ministries or the local governments
that share in the responsibility for the home front. With a foot in both
camps, Peretz, as the political echelon of the defense establishment, enjoys
a certain immunity, though not total immunity like Olmert, and so do his
predecessors, Mofaz, Benjamin Ben-Eliezer and Barak. This cannot be the
result of inadvertence or negligence in drawing up the formulation; someone,
and it's obvious who, benefited from it.

In agreeing to serve on the committee, Winograd and the other four members
turned themselves into Olmert's collaborators. Even if they were appalled to
hear his testimony and see the material, they have no authority to recommend
to the Olmert government what should be done with the Olmert government.
With the IDF top brass, yes; with Peretz, in part.

The response of the Winograd Committee concerning its position on the terms
of reference, which discriminates between the government and the defense
echelon, has not yet been conveyed, and will be published when it arrives.

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