From Stalingrad to Winograd

FOR SOME days, the country looked like the Place de la Concorde in 1793. The entire public sat expectantly facing the guillotine, waiting for the tumbril to bring the marquis, for the marquis to lie down, for the blade to fall on his neck and for a soldier to hold up the bloody, severed head for the amusement of the spectators.

All eyes were fixed on the raised blade of the Winograd commission. The judge sat down before the cameras and read out the report. But the blade did not come down. No reserve soldier raised the bloody, severed head. The head remained in its place. Ehud Olmert is no marquis, and his head remains firmly on his shoulders.

From one end of the country to the other, a deep sigh of disappointment. The reporters and commentators sprang from their seats, like the knitting hags of the Paris square whose marquis has escaped.

The Winograd commission has failed, the commentators exclaimed in outrage. To the many failures of the war, the failure of the commission must now be added.

Every exprienced politician knows the axiom: He who chooses the members of a commission determines its conclusions in advance.

That is almost self-evident. After all, the members of the commission are only human. Human beings have attitudes and opinions. These are known in advance to the person who appoints them. He can appoint the members at will. If he appoints tycoons, he can reasonably expect that they will not decide to raise the taxes on the rich. If he appoints leftists instead, the recommendations will be quite different.

Therefore, when the proposed Law of Commissions of Inquiry was debated, we decided that the members of an "official" commission of inquiry should not be appointed by the government, but by the President of the Supreme Court. I was a member of the Knesset at the time and took an active part in the debate. I proposed that not only would the Chief Justice appoint the commission members, but that he - and not the government - would decide on the setting up of an inquiry in the first place. (This was rejected.)

That happened seven years before the young Ehud Olmert was first elected to the Knesset. But he understands the law perfectly. When, after Lebanon War II, the appointment of an "official" commission of inquiry was proposed, he objected strenuously. He insisted on a government-appointed inquiry commission. While the members of an official commission are appointed by the Chief Justice, the members of a government commission are appointed by the government itself.

Vive la petite difference.

The appointment of the Winograd commission was greeted by many doubts. But these evaporated completely when the interim report was released last April. It was harsh and uncompromising. It contained very negative remarks about Olmert.

So the public relaxed. The difference between the two kinds of commission was forgotten. The Winograd commission behaved exactly like an "official" commission, took decisions like one and spoke like one. It raised the guillotine blade, and everybody waited for it to fall on Olmert's neck.

And then it became clear that "la petite difference" was a very substantial difference indeed. The commission appointed by Olmert has now issued a final report that is favorable to Olmert all along the line, especially about the accusation that Olmert had decided on the last-minute "ground operation" and sent soldiers to their deaths to save his personal prestige.

The commission did not lay any personal blame on any politician or general. Here it could base itself on a decision of the Supreme Court, which had expressly forbidden the commission to condemn anyone personally.

How come? When the Knesset adopted the Commission of Inquiry Law, we paid much attention to Article 15. It prohibits condemning anyone without giving them a fair opportunity to defend themself. Such a person must be warned in advance and invited to appoint a lawyer, to cross-examine witnesses and to summon witnesses of their own.

That is a long process, and a commission of inquiry is generally in a hurry to finish its report before the subject of its investigation is forgotten. For example, the commission of inquiry that was set up after the Yom Kippur war, under Judge Agranat, just disregarded the article altogether and decided to dismiss the Chief of Staff, the Commander of the Southern Front and other generals, without giving them any advance warning at all.

The Winograd commission took another path: when the army authorities petitioned the Supreme Court and demanded that the commission respect Article 15, the commission just promised that they would not blame anybody personally.

The commission could, of course, have described Olmert's part in the war in such scathing terms as to force him to resign. It did not do so. On the contrary, it concluded that his decisions were reasonable.