The High Court of Justice on Tuesday encouraged the Attorney-General's Office and the government to reach an acceptable “creative solution,” after hearing arguments from both, along with petitioners, for and against the government’s decision to fire Shin Bet head Ronen Bar.
The interim order issued on Tuesday night means that Bar will stay in his position until April 20. Chief Justice Isaac Amit noted that if the sides fail to reach an agreement, the court will issue a decision. The judges noted in the decision that this means no moves can be made towards his replacement, though the prime minister may interview candidates. They added that both Prime Minister Benjamin Netanyahu and Bar can submit affidavits to their position, as well as classified ones, to the court.
The case was heard before Amit, Deputy Chief Justice Noam Solberg, and justice Dafna Barak-Erez.
At the 11-hour hearing on Tuesday, representatives for the government, the attorney-general, and the petitioners addressed two fundamental issues at play: substantive and procedural ones. Substantive issues address whether the firing was legitimate in the first place, while procedural issues address only whether the dismissal was done properly or not.
The government convened on Thursday evening, March 20, to vote on Bar’s ouster. Bar did not show, but sent a scathing letter criticizing what he said were baseless claims that he couldn’t even properly respond to. Petitions against the move were filed immediately. HCJ judge Gila Kanfi-Steinitz ordered a temporary injunction to freeze the firing. On March 25, she extended it until the Tuesday hearing.
The government argued that the legality of the dismissal is a substantive issue, and as such, procedure is less relevant to the discussion. Adv. Zion Amir, who is serving as an independent council for the government, explained that the dismissal is based on a “lack of trust, one which doesn’t create the space for a productive work environment.”
He added that the fact that this reached the high court is in itself an anomaly.
“You, the judges, are being dragged into a majority decision... This is a political petition” designed to drag authorities that the government has into the judicial realm, he said, referencing the 2002 law establishing the Shin Bet, which gives the government and prime minister the power to appoint and dismiss the head of the agency.
“Bar said, more than once, that he is responsible for the October 7 massacre, and is therefore resigning - and he is clinging to legal thorns” to stay in power, Amir summarized.
The petitioners argued that the decision was not professional, rather political and personal, and that it was tainted by the Shin Bet's investigation of two cases relating to figures close to the prime minister. The first is the leaked documents case, in which former Netanyahu spokesman Eli Feldstein leaked classified military documents to German daily Bild in an effort to sway public opinion on the hostage negotiations. The second, “Qatargate,” concerns Qatari influences and connections to Feldstein, and aides Yonatan Urich and Israel Einhorn, to affect Qatar’s image in the eyes of the Israeli public.
Bar addressed the attempts to fire him on two occasions; a letter sent to the government on March 20, and a Friday letter to the court, in which he stated that the push for his dismissal was initiated after he refused Netanyahu's request to push off the prime minister’s testimony in his criminal trial hearings.
He wrote that the government meeting was not the appropriate forum to dismiss him.
One such forum could be the Senior Appointments Advisory Committee, responsible for ratifying seven senior appointments – five security-related, (Chief of Staff, Mossad head, Shin Bet head, Israel Police Commissioner, and Israel Prison Service chief), and two economic-related (Bank of Israel governor and his or her deputy).
Amir noted that only the Mossad head is clearly under the jurisdiction of the committee for both hiring and firing. For the other appointments, the law only references how they are to be divided to different committees, it does not reference how or when a dismissal is to occur.
Amir charged, “Who are you to tell them when and where to make your case? An 'appropriate forum?’” That encroaches on the government’s authority.”
The two letters, Amir said, are stains to Bar’s character, that he had opportunities to present his side, and he hasn’t done so.
Barak-Erez queried, “What will happen though when the next Shin Bet head warns that he is being sacked due to extraneous considerations?” Amir responded that this case was exceptional, not ordinary, and that the question that really needs to be asked is: Is this a reasonable one?
Another theme that threaded throughout the debate is conflict of interest. Amir argued that not every investigation automatically means that a conflict of interest exists, and that in Netanyahu’s case, he himself is not a suspect in either case that the agency is investigating.
Barak-Erez responded that conflict of interest doesn’t only apply narrowly, but it can apply peripherally.
“Conflict of interest also requires a logical series of facts,” responded Amir. “For a person who is not actually suspected of anything, you are effectively thrusting the suspicions against people close to that person - onto him. It’s completely unreasonable.”
A-G Gali Baharav Miara's representative deemed the decision not legal
Adv. Aner Hellman, representing Attorney-General Gali Baharav Miara, chalked the issue up to procedure, and reiterated that the decision is not legal.
“The agency has to have the peace of mind to do what it needs to do,” he emphasized.
Earlier, before the hearing began, as well as during it, bereaved family members decried the hearing itself, arguing that if the man responsible for Israel’s largest intelligence failure said he would resign, that is proper and he should do so, and that debating the legality of his dismissal is absurd. One bereaved father, Itzik Bonzel, was removed. Hours later, after a recess, the judges heard from representatives of some bereaved families, including Bonzel himself.
The exchange was heated and emotional, given the nature of the topic. Adv. Eliad Shraga, who heads the Movement for Quality Government, one of the eight groups petitioning the court said, “What happened here today will be a stain forever - I’ve been doing this for 35 years, I’ve never seen such a violent mob. It cannot be that parliamentarians come in here time and again and disrupt.” This was in reference to Likud MK Tally Gotliv, who was vocal during the earlier exchanges and was eventually physically removed from the courtroom.
After the initial clashes, the court issued a decision barring public audience members from the room for the rest of the hearing.
Adv. Ohad Shpak, representing the Israel Democratic Guard, said that the government did not clarify when this trust - that Netanyahu claims was broken between him and Bar - truly crumbled.
A different petitioner argued that the government must prove that the firing comes from a place of distrust that is purely professional, not personal.
Another petitioner summed it up: “We are in a critical moment for Israel’s democracy - this government is putting it in danger.”
Yonah Jeremy Bob and Eliav Breuer contributed to this report.