Arik - The Life Of Ariel Sharon (86 page)

During the 1990s, the draft indictment recounted, Appel spent some $40 million buying up agricultural land in four villages around Lod. The largest tracts were in the village of Ginaton. His investment strategy depended on the lands eventually being rezoned from agricultural to residential. That was where Sharon came in. As the minister of national infrastructures with control over the powerful
Israel Lands Authority (ILA), and later as prime minister, still with direct control over the ILA, Sharon took part in Appel’s plot by trying to get the bureaucrats to do the developer’s bidding.

As minister of infrastructures, he failed. Two successive directors of the ILA stood firm against Appel’s applications and against Sharon’s relatively subtle attempts to push them through. As prime minister, Sharon took the gloves off, the draft indictment charged. He announced that he was making the expansion and development of the down-at-heel town of Lod his “personal priority.” “Following that, defendant No. 1 [Sharon] took action to transfer lands in the Lod area, including the land of Ginaton, from the ILA to the Municipality of Lod, and to rezone the land for residential purposes. He did so knowing that the Ginaton lands had been acquired by Appel, that the ILA disapproved of residential building on them, and that his action
would significantly further the commercial interests of Appel and his company.”

Regarding the Greek island, the draft indictment chronicled Sharon’s participation during 1999 at the dinners Appel gave for the two high-level Greek delegations whose visits to Israel he had arranged.
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During that same year, Appel hired Gilad “for work of indeterminate nature,” in the words of the draft indictment, on the Greek island project. He was to receive $10,000 a month, plus a $1.5 million bonus when the Greek authorities licensed the project, plus another $1.5 million bonus once the project was up and running. “Appel and defendant No. 2 [Gilad] reached their employment agreement even though Appel had no idea of defendant No. 2’s professional abilities—other than that defendant No. 2 had no knowledge whatever of the field in which he was to be employed. Appel made the agreement with defendant No. 2 … in order to obtain the active help of defendant No. 1 both in promoting his real estate project in Lod and in advancing his Greek island project.”

Gilad’s services to the project, in quantity and quality, were “worth far less than what he was paid … For part of the time he did no work at all.” Yet Appel remitted to the Sycamore Ranch account a total of 2.6 million shekels over a period of less than two years, as Gilad’s salary. Appel also organized political and logistical help for Sharon in the 1999 Likud leadership primary. He promised to field “300 ‘suicidal’ activists” on Sharon’s behalf, and “he was active in circles susceptible to his influence in order to bring about the election of defendant No. 1 as leader of the Likud.”

Whatever the contentions in the hypothetical dispute between jurists, it is reasonable to assume that Sharon would have been forced out of office by massive political and media pressure had he been indicted as Arbel recommended. The charge was bribery, plain and unequivocal. It was not the nebulous catchall charge of breach of faith that had often been filed against unethical politicians, but less often made to stick.

Arbel’s indictment, however, was never filed. On June 15, 2004, Attorney General Mazuz announced that he was overruling her and closing the case against Sharon. The facts and findings, he said, didn’t “even come close to a reasonable chance of conviction.” He publicly accused Arbel of aiming at Sharon and then drawing the rings around him to turn her shot into a bull’s-eye. Arbel, meanwhile, had been appointed to the Supreme Court.

Mazuz, always low-key and unemotional, first telephoned the prime minister and informed him matter-of-factly of his decision. Sharon, at his most controlled, was similarly matter-of-fact. Mazuz then walked into a pre-convened press conference at the Justice Ministry and informed the nation and the world that he was closing the case. Beyond the personal drama, of course, his closely argued seventy-six-page legal opinion meant one thing: the disengagement plan was still on course.

His firm position, Mazuz explained, was that a public official, even a prime minister, should be judged by the same standards as anyone else. Not more leniently, but not more stringently either. The same burden of proof was needed to justify an indictment of a senior official. This, he insisted, contradicting Arbel, was the clear import of the Supreme Court precedents.

In Sharon’s case, that burden of proof had not been discharged. Not with regard to the alleged bribe: political help and cash payments. And not with regard to the alleged quid pro quo: Sharon’s attending the dinners and pushing for the rezoning of the Lod lands.

Sharon had known Appel for years, Mazuz wrote. He had known Appel’s father. Their families were friendly. Appel had often supported Sharon in the party. But he supported other people, too. In the 1999 primary he did seem to have helped Sharon in various ways, though the evidence was sketchy. At the end of the day, Mazuz wrote, Appel seemed to have helped Olmert more than he helped Sharon. Sharon in his interrogation admitted that he’d asked for Appel’s help but said he’d taken Appel’s pledges of support with a grain of salt. “These kinds of promises—sometimes they’re kept, sometimes they’re not. I never saw them as a binding commitment. Nor does anyone. Everyone knows the game … People feel important when politicians ask their help.” Mazuz tended to agree. “To discharge the burden of proof, you have to take account of the overall relationship between the giver and the receiver [of the alleged bribe], and the overall circumstances of the case. You have to take account of what is considered acceptable, in life in general and in political life in particular.”

As for Gilad’s salary, the heart of the case, Mazuz conceded it was indeed generous. The whole Greek island project, he wrote, was “grandiose, some would say megalomaniacal.” The envisaged investment was $16 billion(!). The actual investment Appel made was substantial, and so were the salaries he paid to a string of professionals he hired. Mazuz refused to regard Gilad’s employment as a charade, as Arbel had done. He cited the testimony of the senior company accountant and an outside advertising consultant to the effect that Gilad had headed up the marketing and advertising side of the project, had put in
long hours at the office, and had done his job well. There were dozens of businesslike, work-related conversations between him and Appel among the police wiretaps of Appel’s phone lines, although there were also political and personal conversations between them.

Regarding the lands around Lod, Mazuz wrote that all the evidence showed that as minister of infrastructures Sharon never pressured his officials to accede to Appel’s demands. And as prime minister, Mazuz continued, there was no proof that Sharon exerted undue influence on behalf of the Lod building plans. Granted, he pushed through a cabinet decision to “save Lod” through varied and extensive government-backed projects. These were handled by professional planning committees staffed by civil servants. There was no evidence of improper pressure from above or rubber-stamping by cowed officials. Sharon played a similarly active role in promoting development plans for other towns, where Appel had no commercial interests.

So, despite the suspicions, there was not sufficient proof that the political help and the cash from Appel had been bribes. Even if they were, Mazuz went on to argue, there was not sufficient evidence that Sharon
understood
them to be bribes. He knew that Gilad was receiving a high salary. But there was no evidence to show that he understood it to be linked to his ability to help Appel as foreign minister and later as leader of the opposition. In other words, there was no clear evidence of mens rea, or criminal intent, on the prime minister’s part.

The same state-of-mind test applied to Gilad, Mazuz wrote. The police tapes showed that Gilad seriously feared Appel might not pay up as agreed. That would hardly have been the case had he thought the salary was intended as a bribe for his father. There was no hint in Gilad’s behavior of any feeling of guilt or need to conceal or disguise the money, nor any hint in the tapes that he was disingenuous in regard to the money.

Finally, Mazuz analyzed a tapped telephone call between Sharon and Appel in September 1999 in which Sharon asked the developer, “Is the island in our hands already?”
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Arbel and her team deduced that Sharon was fully familiar with the details of the project, but Mazuz said the taped conversation showed exactly the opposite. Sharon did not know how far offshore the island was (“Only 700–800 meters? So it’s not a long boat ride?”). He urged vaguely that they build to withstand earthquakes. But he evinced little real interest and
kept on trying to steer the conversation back to party politics. “Hasn’t Gilad got you excited about the project?” Appel asks wistfully. “Our boy’s a very discreet boy, you know,” Sharon replied. “He never talks about business.” Appel replied by praising Gilad’s work and assuring his father that he would be making good money out of it. Hardly what he would have said, wrote Mazuz, if they both knew it was a bribe. Appel invited Sharon and Lily to “our new home in Greece,” and Sharon accepted, “but I’ll pay my own way,” he said.

S
haron’s enemies gulped. It was hard to tar the gauche, straitlaced, somewhat owlish Mazuz with the brush of too-intimate contact with Sharon’s coterie. Still, some whispered that his labored, casuistic opinion was the payoff for his unanticipated appointment as attorney general, a job, they insisted, several sizes too big for him. But that implied the collusion, at least passive, of
Tommy Lapid, the
Shinui Party leader and minister of justice, who had recommended the appointment. This was thoroughly improbable, as even the whisperers were forced to agree.

An alternative line of attack was that Mazuz, after a career in the rarefied air of the judicial bureaucracy, was just too naive and unworldly to understand how he had been duped. Repeatedly, he cited the
absence
of any incriminating material in the thousands of hours of taped telephone conversations as proof that there had been no crime. But didn’t he realize that all the alleged plotters assumed as a matter of course that Appel’s lines were tapped? Sharon himself let the veil slip in a rare unguarded moment in November 1999 when he arranged with Appel to have lunch in Raanana and added, apparently for the benefit of the tappers, “That’s not a code word; it’s the site of a kosher restaurant.”
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Yossi Sarid of Meretz, Eitan Cabel of Labor, and the Movement for Quality Government all applied to the
High Court of Justice to order the attorney general to reconsider. A bench of seven justices, however, decided by 6–1 not to intervene. The majority opinion coldly dismissed the claim that Mazuz had let Sharon’s lofty status influence his forensic decision making. Mazuz’s decision not to indict was entirely reasonable—as was, the judges stressed, Arbel’s recommendation to indict. “It is quite possible that jurists of equal abilities should reach different assessments,” Justice
Eliahu Matza wrote in the majority opinion. Chief Justice
Aharon Barak concurred, as did all the others—apart from Justice
Mishael Cheshin, the judge who shut down Sharon’s TV broadcast before the last election. “I am sorry,”
Cheshin wrote in his dissenting judgment, “but I have the greatest difficulty concurring with my learned friends. To my mind, the facts speak for themselves. Gilad Sharon, the son of Ariel Sharon, received huge sums of money from Appel … These vast sums were to be paid to a man who had no prior experience in the business for which he was hired to engage in … Granted, [Ariel] Sharon didn’t know much more than the fact that his son was getting ‘a high salary.’ But that much he knew.”

Sharon had got the better of Cheshin again. But he was by no means out of the woods. The
Cyril Kern affair had been growing murkier and more impenetrable as detectives followed the trail of mysterious bank transfers to
South Africa, to Austria, to New York, and to the Virgin Islands. Gilad was embroiled in an ugly battle to protect his bank records from the prying eyes of police investigators. Omri faced the possibility of prosecution for the election finance offenses exposed in the original front companies affair.

As the investigations proceeded, Kern increasingly appeared to the police to have been a front himself. In an affidavit to the South African minister of justice in January 2003, Kern indicated that the “money which I arranged be sent to Gilad Sharon to whom I have been known since birth as Uncle Cyril” was not in fact his money:

The loan to Kern had indeed been repaid, thanks to a
second
transfer of money,
also
from
BAWAG (Bank für Arbeit und Wirtschaft) in Vienna, which had landed in Gilad’s Tel Aviv account in two installments, in November and December 2002. Who had sent it? Gilad was zealously upholding his right to remain silent. The police claimed that Gilad had solicited the second transfer, after he learned that they were investigating the
first
transfer from Kern. They formally asked the Austrian authorities to be allowed to extend their investigation to
Vienna, to interrogate people there and to scour BAWAG bank records. But they were repeatedly rebuffed. The Austrian Justice Ministry, and then the Austrian courts, stonewalled. Raising political donations was not a crime, Austrian law enforcement officials argued, ignoring the Israelis’ suspicion that the moneys were bribes. Anyway, the transfers had gone to Gilad and Omri, not to the Israeli prime minister. Moreover, Austrian banking secrecy protected the transfers. The Israelis concluded that whoever had sent the money from Vienna was not only rich but powerful.