Israel’s Shin Bet Saga, Continued
Following Ronen Bar’s resignation and an HCJ judgment, Netanyahu has rushed to propose a new Shin Bet head, inviting legal challenges.
Photo by Chaim Goldberg/Flash90
In an earlier post, we discussed the serious constitutional crisis unfolding in Israel around the attempt by Prime Minister Netanyahu to fire Ronen Bar, the head of the Israel Security Agency (ISA; also referred to as Shin Bet) and the legal proceedings aimed at blocking the dismissal (Movement for the Quality of Government in Israel v. Government of Israel). In this follow-up post, we consider three major developments in the head of Shin Bet saga: The decision by Bar to voluntarily resign on April 28; the May 21 judgment of the High Court of Justice (HCJ) that the government's decision to dismiss Bar was unlawful; and Netanyahu’s May 22 announcement of Bar's successor—General David Zini—the legal validity of which has already been challenged by Israel's attorney general, Gali Baharav-Miara. These three developments suggest that the Israeli government and the country's legal establishment are still on a collision course, which looks increasingly destined to result in a full-blown constitutional crisis involving competing claims of legal authority.
Bar's Resignation
Following the Israeli government's March 20 decision to dismiss Ronen Bar from his position as head of the Shin Bet, legal proceedings were initiated before the HCJ with the aim of nullifying the decision. The attorney general, who had warned the government of serious legal difficulties before it made the decision, sided with the petitioners. As a result, the government was represented in the proceedings by private attorneys. While Bar was not formally a party to the proceedings, he was allowed on April 22 to submit an affidavit to the Court (the full 31 page affidavit has not been made public; a shorter 8 page version was published); on April 27 Netanyahu submitted a counter-affidavit in which he accused Bar of lying about the circumstances leading up to his dismissal. In response, Bar issued a statement on the same day accusing the prime minister of inaccuracies, misquotes, and half-truths. Still, the following day Bar offered his resignation and announced his intention to leave office by June 15. In his resignation speech, Bar emphasized that he and the rest of Israel's security establishment were responsible for the failures leading up to the Oct. 7 attack on Israel. He also called for the establishment of a national commission of inquiry, and for the return of the remaining hostages held in Gaza. He explained his initial choice to fight the dismissal in court as dictated by the need to ensure the independence of the Shin Bet.
Following Bar's resignation, on April 29 the government annulled its decision to dismiss him. This was clearly a last-ditch attempt by the government to prevent the HCJ from deciding on the legality of its March 20 decision. As we explain below, this attempt did not succeed.
The May 21 Judgment
After the government's decision to annul the dismissal of Bar following his resignation, it requested that the HCJ dismiss the petitions, claiming that they had become moot. The petitioners and the attorney general opposed the request, citing the public interest in a judicial determination of the questions raised in the proceedings. In a judgment rendered on May 21, the Court rejected the government's request: President Yitzhak Amit and Justice Daphne Barak-Erez were of the view that the ruling was necessary due to the weighty constitutional questions involved in the case. Barak-Erez also noted that the short timeline in which events relating to the dismissal unfolded suggests that similar issues might arise again in the future without the possibility of real-time judicial review. By contrast, Deputy President Noam Sohlberg was of the view that the dismissal process raises serious difficulty, but since the issue had become theoretical after Bar’s resignation, the Court should have abstained from deciding it. He believed that a judgment in the case could unnecessarily exacerbate societal tensions.
The main judgment in the case—Movement for the Quality of Government in Israel v. Government of Israel—was authored by President Amit. He dismissed three preliminary objections put forward by the government. The first two inadmissibility claims—the aforementioned mootness claim and the claim that Ronen Bar himself should have filed the petition (the Court generally refuses to allow public interest litigants to bring cases relating to specific individuals, when these individuals are not formally parties to the proceedings)—were rejected on the basis of the public interest exception to the legal doctrines underlying them. In other words, the important public interests at stake—according to Amit, the professional independence of the Shin Bet and the implications such independence has for the country’s democratic system and the protection of human rights—justified issuing a judgment on the merits, despite the unconventional nature of the proceedings. The third preliminary claim—a claim of non-justiciability due to the national security dimensions of the case—was rejected by Amit on the basis that the central questions raised by the petitioners were legal in nature, relating to democratic governance and civil rights, and not to security matters.
Amit's opinion then examined the substance of the case. His starting point was an analysis of the Shin Bet Law. According to Amit, the law reflects a delicate balance. On the one hand, it provides the Shin Bet with extensive powers, including with respect to Israeli citizens, for the purpose of protecting the state from internal and external threats. On the other hand, it is precisely these immense powers that require rigorous supervision of their use by the Shin Bet and of the utilization of the Shin Bet by the politicians overseeing its operations, in order to protect democratic values. Specifically, the law includes a requirement that the agency would operate in a non-political manner (the Hebrew term 'mamlachti'—alluding to the prioritization of national interests over political or sectorial ones—plays a vital role in this regard).
This balance is maintained through several oversight mechanisms, including internal and political oversight. The head of the Shin Bet has a critical responsibility to preserve this balance, protecting Shin Bet's professional independence from narrow political agendas. Although the government has the legal authority to dismiss the head of the Shin Bet, such exercise of legal power must be constrained by general administrative law principles (e.g., fairness, reasonableness and absence of improper motivations), and must conform to the purpose of the Shin Bet Law: Protecting both national security and democratic principles, including the rule of law and individual liberties. Were the government free to dismiss the head of Shin Bet for insisting on the professional independence of his agency and deflecting inappropriate political pressures, the delicate balance between independence and accountability which allows for the operation of the Shin Bet in a democracy would be seriously disrupted.
In addition, Amit noted that the government’s past decisions established a process for hiring and firing senior officials, including the head of Shin Bet, which involves the solicitation of a recommendation from the advisory committee for senior appointments (an independent vetting committee headed by a former president of the Supreme Court) before adopting the relevant government decision. In the present case, the process was not followed; instead, the government's decision to dismiss Bar explicitly asserted that the recommendation process is inapplicable or overridden by the dismissal decision itself. Amit held that the recommendation process should have been followed, and that the attempt to override it ad hoc was arbitrary—due to lack of deliberation and factual underpinning—and thus invalid. The upshot of this part of the analysis is that the dismissal of Bar did not follow the necessary procedure and was therefore null and void.
Although the judgment could have ended there, Amit proceeded to review other aspects of the dismissal process. He held Netanyahu had a conflict of interest in the dismissal: The Shin Bet is currently investigating the involvement of his office in the “Qatargate” scandal (i.e., allegations that a number of senior advisors to the prime minister were on Qatar's payroll) and another media leak scandal—investigations that may harm him politically. Netanyahu himself stated publicly that the investigations were politically motivated and aimed to harm him. Consequently, Netanyahu was barred from initiating the removal of the head of the investigating agency. The fact that the actual decision to dismiss Bar was made by the government did not resolve this conflict of interest, since the prime minister—who was supposed to be excluded from involvement in the decision—participated in the vote, and was clearly the “animating force” behind it. The conflict of interest was particularly grave since the attorney general warned the government about it prior to the vote, a warning that the government ignored.
Amit found two additional flaws in the decision. First, the government failed to support the decision with concrete evidence—such as objective indications of a functional breakdown in the relationship between the prime minister and the head of the Shin Bet. Instead, the decision was based on a vague and unsupported claim of loss of professional trust (Barak-Erez noted in her concurring opinion, in this regard, that "personal trust" is not an adequate basis for removing office holders possessing investigative and enforcement authority). Second, Bar was not given sufficient time or information to prepare a proper challenge to the decision before it was made. As a result, the legal obligation of the government under administrative law to provide a fair hearing before making decisions directed against a specific individual was not met in the circumstances of the case.
Since Bar had already resigned, the judgment did not offer any remedy. However, it carries significant implications for the appointment process of Bar’s successor.
Appointment of a Successor
According to the Shin Bet Law, the appointment of the head of the Shin Bet is made by the government, based on the recommendation of the prime minister. Given the prime minister's conflict of interest, on May 21—a few hours after the HCJ issued its judgment—the attorney general instructed him not to take any steps towards making a new appointment until she’d had the chance to issue guidelines that would ensure the procedural integrity of the process. Despite this, on May 22 the prime minister announced his intent to appoint Major General David Zini—currently, the IDF commander of instruction and training—to the position of head of the Shin Bet, defying the attorney general, and potentially the Court.
On May 26, the attorney general published her legal opinion on the appointment process. According to the opinion, the HCJ judgment implies that the prime minister cannot be part of the nomination and appointment process of the next head of the Shin Bet due to his personal conflict of interest. Instead, the attorney general suggested that the prime minister should delegate his authority to another minister, who would select a suitable candidate, and submit his name for approval by the government. The opinion stressed that this nomination process should be accompanied by legal advisers, and be meticulously recorded. Before the nominated candidate is approved by the government, he/she would be subject to consideration and possible recommendation by the advisory committee for senior appointments. This committee, it should be noted, is tasked with reviewing the personal integrity of the candidate and the integrity of the entire nomination process. The opinion further stated that given the prime minister's involvement in General Zini’s potential appointment, proceeding forward with his candidacy would create significant complications, as it is clear that he is the prime minister's preferred candidate.
The jurisprudence of the HCJ in recent decades has been clear that legal opinions of the attorney general are binding on the executive branch, which must follow them unless the Court holds differently. Nevertheless, the government has repeatedly ignored this legal convention. It might choose to do the same in this case. Even if the advisory committee for senior appointments convenes and approves the nomination of Zini (note that the chair of the committee already announced that the committee will not convene over the opposition of the attorney general), the appointment will undoubtedly be challenged before the HCJ. It is highly likely that the Court would intervene again.
Alternatively, the government could choose to follow the path offered to it by the attorney general. Even then, petitions challenging this process would surely be submitted to the Court, claiming that, even if the prime minister were to be sidelined, his personal conflict of interests permeates the entire government (the May 21 judgment did not express a clear view on this specific issue). One possible solution going forward is for the government to create a new non-political nomination process involving a search committee or advisory panel, as outlined in a recent Supreme Court judgment on the appointment of a civil service commissioner. Alternatively, the government could simply postpone the appointment until the Qatargate investigation concludes, and approve the appointment of a temporary caretaker from within the Shin Bet to serve as acting head in the meantime.
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The ongoing legal and political battle surrounding the identity of the head of the Shin Bet is really a battle over the professional independence of the agency from political interference. The HCJ and Israel’s attorney general have both taken a clear stance on the matter, acting to block the prime minister from politicizing the office of the head of the Shin Bet and transforming it into a position of loyalty. Still, by appearing to ignore their positions and pushing for the appointment of General Zini—despite the prime minister's personal conflict of interest—Netanyahu has demonstrated an appetite for exacerbating Israel’s legal and political crisis. Indeed, Bar’s dismissal saga appears to be part of a larger plan to undermine the independence of democratic gatekeepers in Israel, including the attorney general. There is a possibility that in the near future, the very authority of the Court to block appointments could be put into question—heralding a full-fledged constitutional crisis, in which competing claims of public authority are raised by the government and the legal system.
This article was published in Lawfare