The saga of appointing a new Shin Bet (Israel Security Agency) chief has intensified the tug-of-war between the government and the judiciary. As in a Greek tragedy, where the hero is driven – sometimes willingly, sometimes blindly – toward disaster, in Israel, at every crossroads of choice between an option that alleviates tension and one that exacerbates it, the latter is selected and further strains the rope.
It frays further as each side declares the function of the other as illegitimate.
At one end, the High Court ruled that the prime minister had a conflict of interest when he dismissed Shin Bet head Ronen Bar.
At the other end, the prime minister is moving forward with appointing Maj.-Gen. David Zini to replace Bar despite the court’s ruling and the attorney-general’s call to delay the appointment until an arrangement is in place to avert a conflict of interest. The attorney-general then responded by stating that the prime minister cannot be involved at all in appointing a new Shin Bet director.
The rope hasn’t snapped – yet. We haven’t yet reached a constitutional crisis that forces citizens to choose between obedience to executive branch decisions and rulings by the judiciary. But the distance between us and disaster is closing, all against the backdrop of a prolonged and re-escalating war, the still unresolved hostage crisis, and a looming diplomatic tsunami about to crash upon our shores.
When Ronen Bar announced his imminent resignation date, and the government accepted it, the petition against his dismissal was rendered moot. The High Court could have lowered the flames of dispute, as Justice Noam Sohlberg attempted to do from his minority seat on the bench. But no, the majority chose to use the opportunity to discuss how the government should have acted and also ruled that a conflict of interest tainted the prime minister.
Picking fights for no reason or making necessary judgments
The theoretical soundness of this position – that the Shin Bet chief’s fiduciary duty is to the public, not to the prime minister – and the ruling itself – that the prime minister has a personal interest in deciding who will lead the agency investigating individuals in his office – are clear to me. But was the court obliged to pick at this already inflamed skin even when there was no practical question?
The prime minister’s responsibility is even more serious: He tugged the rope hard when he flouted the attorney-general’s position in the dismissal process. When he learned of the court’s response, he decided to pull even harder and immediately appointed a new Shin Bet head – not only contrary to the attorney general’s position but also in contravention of the High Court’s explicit finding that he had a conflict of interest.
To his credit, he pledged that the new chief would not deal with the “Qatargate” matter. Still, what would have been lost by waiting for the attorney-general’s instructions regarding the conflict of interest and then lawfully making the appointment? It is clear that this was a purposeful, aggressive move designed to telegraph his willingness to ignore “bureaucrats.” In plain language, it was a refusal to accept the authority of “the law.”
Accordingly, the attorney-general categorically stated that the prime minister is barred from appointing a Shin Bet chief as long as investigations of individuals in his office are ongoing. She further determined that there is substantial doubt whether the irregularities surrounding the appointment of Zini – who, in her opinion, was appointed in an improper and illegal manner – can be rectified.
THIS TUG-OF-WAR is a tragedy in several respects. First, the Shin Bet is devalued when its leader is appointed in a way that raises doubts about the intentions of the appointer. The appointment process – a hasty rendezvous in a car, concealed (allegedly) from the IDF chief of staff in violation of protocol – is shady and flawed. The Shin Bet and its leader must enjoy the broadest possible public legitimacy, and the prime minister is undermining that.
Second, according to Newton’s third law, the tug will be met with counterforce: Petitions will be filed, and a likely outcome is a judicial ruling that the appointment is invalid because the appointer acted, as already determined, under the shadow of a conflict of interest. The prime minister will leverage the disqualification to reinforce the narrative of “bureaucratic rule” and further erode public confidence in the rule of law.
Third, the appointment of a new Shin Bet chief will be delayed for many weeks – during wartime – due to this legal arm wrestling. And the spiral could continue even longer.
Fourth, the prime minister has inserted unwanted tension between Israel’s two vital security agencies – the IDF and the Shin Bet –whose cooperation saves lives.
Most importantly, the dangerous flirtation of Israeli public leaders with the horrifying prospect of disobeying a High Court ruling, which will likely result in the dissolution of Israeli society, will continue and intensify.
Defying the court will lead us to anarchy – “Each man swallowing his neighbor alive” (Ethics of the Fathers, 3:1). In such a scenario, the court might deploy its doomsday weapon: declaring the prime minister incapacitated – a move that could trigger civil strife of unimaginable consequence.
There is still a way to stop the decline. Given that the attorney-general has determined that the appointment process must be restarted without the “direct or indirect” involvement of the prime minister, Zini must declare immediately that he is willing to be appointed only after all the conditions she has set forth are fulfilled and after his nomination is approved by the Appointments Committee and, in the event a petition is filed, by the High Court as well.
It will be incumbent upon the prime minister to rectify the appointment process by transferring his appointment authority to another minister. The government should then be required to hold a proper professional process, cooperate fully with the Appointments Committee – chaired by former chief justice Asher Grunis – and lower the confrontational tone toward the court and the attorney-general.
Although the attorney-general has expressed doubt about the possibility of appointing Zini at all, it seems to me that one should not disqualify a person who is unblemished personally and whose integrity is universally acknowledged solely because the prime minister selected him through a flawed process.
Certainly, the proper process must be conducted, and Zini should keep a significant distance from the Qatargate investigation – and that should suffice. If the court adopts this approach, we may be able to emerge from this saga unscathed.
In Greek tragedy, whose world is myth and legend, disaster is inevitable, but our tragedy concerns real life, personal and national, and disaster must be avoided. Greek hubris – the presumptuousness to act without regard to external constraints – is the trap into which tragic heroes fall. That trap now lies before all the actors. They must not heed the seductive chorus – each has their own – urging them to win the fight with one final, mighty tug of the rope.
The annals of history await you, Mr. Prime Minister, honorable justices, General Zini. Will you know how to conquer your own impulses?
The writer is the president of the Jewish People Policy Institute and professor (emeritus) of law at Bar-Ilan University.