Op-ed

A Preemptive Strike on Iran: Who has the Authority to Decide?

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As the world considers the threat of a nuclear Iran, Israeli public discourse has focused primarily on whether or not Israel should launch a preemptive strike on Iran's nuclear facilities. But who has the authority to decide whether a military operation should be conducted? In this article, IDI Vice President Prof. Mordechai Kremnitzer and researcher Eyal Tsur explore the strengths and weaknesses of the current division of responsibility regarding this matter, and recommend ways of improving the system.

Introduction

Over the past decade, as the Iranian nuclear program has developed and Iran's president has reiterated his desire to destroy Israel, Israeli decision-makers at both the political and operational level have been trying to find ways to curb the danger posed by Iran. Israeli public discourse seems to be dealing primarily with the practical options for stopping the Iranian nuclear program: economic sanctions, covert actions, and, of course, a large-scale air attack on the nuclear facilities scattered throughout Iran. Despite the importance of the matter, however, very little attention has been given to the way in which decisions regarding a possible military operation in Iran are to be taken.

Even if security concerns make it impossible to involve the public completely in formulating a military response to the Iranian nuclear threat, it is appropriate to discuss the decision-making process of the government and the Israel Defense Forces regarding this matter, and to explore the identity of those involved in making such decisions. This article will identify the main strengths and weaknesses of the current division of power and responsibility between the decision-makers involved in a possible preemptive strike, and will highlight general guidelines for improving the decision-making process in this area. This will be done, however, without addressing the fundamental question of whether or not Israel should take this step.

The Strengths of the Existing System

Let us begin with the major strengths of the existing system.

  1. Regarding the decision to take preemptive action in Iran, it is clear that, in theory, the military is subject to the authority of the political echelon. It is clear from "Basic Law: The Government" and from "Basic Law: The Army" that the political echelon has the authority to decide if and when to act in Iran. If the military operation is classified as a declaration of war, "Basic Law: The Government" leaves no doubt as to the need for government approval. Although this Basic Law does not require a government decision for a military operation that is not a declaration of war, it is clear that when a significant military operation is initiated, it requires the decision and approval of the political echelon. The difficulties involved in this classification will be discussed further on.
  2. The executive branch has the resources and mechanisms necessary to make informed decisions on a possible strike against Iran. It can make use of the Chief of Staff, IDF military intelligence, the Mossad, the General Security Services, the research unit of the foreign office, and the National Security Council (NSC) in deciding whether or not to attack, how to attack, and when to attack. The NSC's activities are entrenched in the National Security Council Law of 2008. This law grants the NSC a broad mandate to serve as the headquarters for the government and the prime minister on issues of foreign affairs and security. The ministers thus do not have to rely solely on the opinions of the security forces, which naturally stem from a narrow security perspective; rather, they have access to a body that is intended to provide them with an integrative and multi-dimensional view of security issues and alternatives for action.
  3. According to "Basic Law: The Government," the executive branch is obligated to report to the legislative branch following the implementation of the operation. It must inform the Knesset's Foreign Affairs and Defense Committee of the execution of the action. When the act is defined as an act of war, the Prime Minister is also required to report to the Knesset plenary. Likewise, the Knesset is permitted, by the general authority vested in it by Basic Laws, to demand that office-holders from the executive branch, such as the Prime Minister and the Minister of Defense, report to it on preparations for a future military operation. Due to the complexity and sensitivity of this issue, it is to be discussed in a limited forum, such as one of the subcommittees of the Knesset's Foreign Affairs and Defense Committee.
  4. Since executing a strike in Iran requires military expertise in a variety of fields, it is logical to assign many tasks, such as intelligence gathering and battle-plan preparation, to the professional and skilled military echelon, as is done in the current system.

The Weaknesses of the Existing System

  1. As implied previously, the definition of such an action is not clear.  A) Is it a declaration of war according to Article 40(a) of "Basic Law: the Government," in which case, the government must declare war?  B) Is it a military action necessary for the preservation of the security of the state according to Article 40(b) of "Basic Law: the Government"?

    As a result of this lack of clarity, it is difficult to determine who is responsible for authorizing the action.  In a case of a military action that is short of war, the Basic Law does not specify who is responsible for authorizing the action.

    The key to the action's classification seems to lie in the political leadership's reasonable assessment of the action's implications. Under normal circumstances, the government may act through ministerial committees, but when the issue is of extreme importance, as in this case, the authority lies with the government itself. This is the underlying premise of this article. Legislation is necessary, however, to resolve the lack of clarity regarding who is responsible for decision-making in cases of military actions that are not classified as war.
  2. A second problem relates to the way the government makes decisions regarding preparations that are to be made for a possible action. For the government to make a responsible decision regarding such a weighty matter, it is imperative for the government to receive a methodical and organized presentation of the positions of professional bodies, as well as the integrative, multi-faceted analysis of the National Security Council, and the government must be able to study all aspects of the subject in depth before making a decision. The current size of the government—twenty-nine members—however, is not ideal for in-depth discussion. It would therefore be logical to reduce the number of decision-makers, while noting that a decision about readiness is fundamentally different from a decision about a declaration of war, since Article 31(e) of "Basic Law: The Government" allows the government to make a decision about readiness by means of a Ministerial Committee. Similarly, the establishment of the Ministerial Committee on National Security was legislated in the Government Law (2001); the role of this committee, however, was not defined.

    According to both these laws and Government Decision No. 2760, it seems that the government can decide to prepare for a possible operation in Iran by means of a decision of the Ministerial Committee on National Security. Nonetheless, it is preferable that the roles of the Ministerial Committee on National Security, including decisions regarding preparations for war and military operations, be defined by law and not by a government decision. This step will promote clarity and stability in the government's decision-making process regarding national security.

    In its current format, however, the Ministerial Committee on National Security is not the optimal body for making security decisions. The Committee currently includes fourteen members and five observers. This means that more than half of the government participates in the Committee's meetings. The Government Law determines the composition of the Committee: the Prime Minister (who serves as chairperson), the Deputy Prime Minister (if there is one), the Minister of Defense, the Minister of Justice, the Foreign Minister, the Minister of Public Security, and the Minister of Finance. The Prime Minister can recommend that the government add more members, as long as the total is not more than half of the number of the members of the government. It's doubtful that this limitation is sufficient, particularly since the government's size is not limited. There is thus room to legislate that a smaller number of ministers comprise the Ministerial Committee on National Security. Making decisions of any kind regarding a possible military operation in Iran by means of any alternative forum, such as the senior ministers known as the "Group of Eight," is inconsistent with Israel's constitutional structure.

    The problem of leaks from meetings of the government or the Committee can and must be reduced by requiring ministers to undergo security clearance, like civil servants and security personnel employed in sensitive positions, and by carrying out security interviews (including polygraph tests) in cases of suspected leaks. The position that releases ministers from such security interviews is noble, but lacks practicality and results in the disruption of decision-making processes regarding critical issues due to fear of leaks. Such disruptions cannot be accepted.
  3. An additional problem is the law's silence regarding the Prime Minister's role in the process of decision-making regarding matters of security and the military. Although in reality the Prime Minister, as the head of the executive, partners with the Minister of Defense in making decisions regarding military operations with significant implications, and although the Government Law defines the Prime Minister as the chairman of the Ministerial Committee on National Security, there is no provision that grants him a defined and permanent position regarding the government's authority over the military in general and military operations in particular. Consequently, in the current situation, it is not clear how much responsibility the Prime Minister has for carrying out a preemptive strike against Iran and for the preparations for such a strike.
  4. Beyond the above, there is a need to sharpen the existing division of powers between the political and military echelons with regard to decision-making concerning military operations. For example, is the authority of the political leadership absolute or are there matters (such as operational-tactical aspects of a mission) for which the military has independent authority? Even if the significant contact between the political and military echelons with regard to such matters makes it difficult to define the line between the authority and responsibility of the two clearly, it is possible to increase the level of clarity and certainty regarding the existing situation.
  5. An additional problem is that members of the executive are not required to report to the legislative branch about preparations for large-scale military operations such as a preemptive strike in Iran. According to the Knesset Law, the Chief of Staff is required to report to the Knesset's Committee on Foreign Affairs and Security on the activities of the IDF at least once every two months, and it can be argued that reporting on preparations for a possible war is implicit in this. This is not the case, however, regarding the Prime Minister, the Minister of Defense, and the Head of the National Security Council. While these three officials appear occasionally before the Committee, they report on preparations for important military operations only at their own initiative or if they are asked to do so by Members of Knesset on the Committee. There is therefore room to consider legislation that will explicitly mandate parliamentary monitoring of preparations for war and military operations. Moreover, there is room to consider the possibility of authorizing the Knesset to decide to end a war or military operation, as suggested in the draft constitution for Israel proposed by the Israel Democracy Institute [see article 104(d)].
  6. A last problem concerns the actual status of the National Security Council in decision-making regarding national security in general and regarding a preemptive strike against Iran in particular. As mentioned above, the Council is meant to be involved in both the planning and execution stages of this process; in practice, however, it seems that the Council's level of involvement and influence remains limited, due to the significant power of political figures such as the Minister of Defense and military figures such as the Military Secretary to the Prime Minister. Examples of this kind of problem have been presented recently by Professor Uzi Arad, the former head of the NSC, in the Yedioth Ahronoth newspaper and on television's Channel 2. This situation can be improved if the Prime Minister were to clearly support the NSC, in order to fully implement the NSC Law, and if the human resources allocated to the NSC were to be increased.

Conclusion

It is necessary, both legally and practically, to deal with the weaknesses defined above quickly, due to the progress of the Iranian nuclear program and the possible need to prevent the dangers related to its completion. The solution must come from amendments to existing legislation as well as from new laws, which will clarify the responsibility of officials in both the political and military echelons, advance cooperation between them, and improve the decision-making process in the area of national security in the State of Israel. 

Prof. Mordechai Kremnitzer is Vice President of Research at the Israel Democracy Institute. Eyal Tsur is a researcher at the Israel Democracy Institute.