Amid the most serious political crisis in Israel’s history, its intelligence agencies will face a moment of truth if the far-right government of Prime Minister Benjamin Netanyahu presents them with an order that the country’s Supreme Court has deemed illegal.
Earlier this week, Israel’s Knesset, or parliament, passed a law that retroactively eliminates the Supreme Court’s authority to strike down executive actions that it regards as “unreasonable,” giving more power to Netanyahu’s government and the coalition of ultra-nationalist and conservative religious lawmakers who make up his slim parliamentary majority.
The law’s passage has prompted more than a half dozen petitions to the High Court to nullify the measure, which now joins Israel’s Basic Law—its equivalent of a constitution —and has the legal gravitas of a constitutional amendment. The court, which has never overturned any Basic Law, will take up the petitions in September, setting up a possible showdown between the court and the government. Legal experts say a High Court decision that strikes down the measure would ignite a full-blown constitutional crisis if the government were to ignore such a ruling.
Itamar Ben-Gvir, Netanyahu’s National Security Minister and leader of Israel’s ultra-nationalist right, has said that a Supreme Court ruling that nullifies the law would constitute “an attempted coup.”
Gilead Sher, one of Israel’s top lawyers and a former peace negotiator who now plays a key role in organizing the protests against the government’s judicial overhaul, told SpyTalk that Israel’s security agencies sit at a political crossroads.
“That means the heads of the security services—the Mossad, the Shin Bet, the military and perhaps the Israeli police—at a certain point will have to take a decision: Do I follow the ruling of the Israeli Supreme Court, or do I follow the order I’m given by the head of state that counters such a ruling,” in a telephone interview. “Whom do I serve? The king, or the kingdom?”
“That will be a huge moment of truth for them,” Neri Zilber, a senior adviser at the Israel Policy Forum, an American-Jewish group, told a webinar on Israel’s crisis on Wednesday.
With Netanyahu’s coalition commanding the majority in Israel’s unicameral Knesset, the Supreme Court acts as the only check on its executive and legislative powers. Netanyahu and his partners have accused the Supreme Court of liberal judicial overreach and made it clear that the recently passed law is just the first measure in a far-reaching legislative package that they’ve crafted to curb the court’s power. In past rulings, the court has blocked government moves to seize privately-owned Palestinian land in the occupied West Bank, which hardliners want to annex. The Netanyahu government also wants military deferments for ultra-orthodox men and women to be enshrined in Israel’s Basic Law.
Since the government’s legislative package was unveiled at the beginning of the year, massive demonstrations by tens of thousands of opponents have spread across the country. The protesters charge the government is leading an anti-democratic campaign to castrate the Supreme Court and turn Israel into an authoritarian state.
But what began as a domestic political dispute has now mushroomed into a major security issue with the recent threat by some 10,000 military reservists to refuse to report for duty in protest. The reservists include fighter pilots, military intelligence analysts and members of elite units, whose boycott threatens Israel’s overall military readiness. Unlike the U.S. military, the reserves make up the bulk of Israeli forces during wartime. In peacetime, however, reservists constantly train to maintain their fighting skills.
Their protest comes at a time when Iran is moving ahead with its nuclear program and its Lebanese proxy, Hezbollah, has amassed a huge arsenal of precision-guided missiles on Israel’s northern border that can hit strategic targets as far south as Tel Aviv.
In the days before Monday’s vote, dozens of former senior Israeli security officials voiced their support for the reservists in a letter to Netanyahu.
“We, reserve generals heads of Mossad and Shin Bet wings, fully endorse those who have decided to act and halt their reserve duty,” they wrote. “”In this difficult time, it is an act of national responsibility, done to defend Israeli democracy.”
The signatories included retired military chiefs of staff Ehud Barak (who later served as prime minister), Moshe Yalon and Dan Halutz; former Shin Bet chiefs Nadav Argaman, Yuval Diskin and Carmi Gilon; and former Mossad heads Tamir Pardo, Nahum Admoni, Efraim Halevy, Shabtrai Shavit and Dani Yatom. Dozens of other former senior members of the military, Mossad and Shin Bet also signed the letter.
Also joining opponents of the bill is former Mossad chief and national security adviser Yossi Cohen, long a close Netanyahu ally. In a commentary published in Sunday’s mass-circulation Yediot Aharonot daily, Cohen called on Netanyahu to pull the legislation, warning the protests surrounding it “pose a risk to Israel’s security and national resilience. . . in the face of the Iranian threat.”
The Mossad is allowing its rank-and-file employees to participate in the anti-government protests—the equivalent of CIA Director William Burns permitting his mid-level operatives and analysts to demonstrate in downtown Washington. Senior leaders of the Mossad and other intelligence agencies have otherwise been holding their tongues.
But Stephen Slick, a former CIA station chief in Israel, says senior intelligence and security officials could revolt if they see Netanyahu’s overhaul of the country’s judiciary as a threat to Israel’s democracy.
“I have confidence the security officials would not enter the public fray unless they were convinced that the proposed judicial reforms represent a serious risk to the State’s democratic principles,” he said in an email.
Indeed, only a few hours before the vote, David Barnea, the Mossad’s current director, convened a meeting of the spy agency’ s members and assured them that “if a constitutional crisis unfolds, I’ll be on the right side of history.”
“But,” he told the Israeli daily Haaretz, “we’re not there yet.”
Some veteran observers see Barnea’s remarks as an unambiguous statement of where his loyalties will lie if he has to choose between obeying Netanyahu or the Supreme Court.
“That’s a very profound statement,” retired former American ambassador Luis Moreno, who served as the second-ranking U.S. diplomat in Israel from 2007 to 2010, told SpyTalk.
“Barnea doesn’t want to do anything that would weaken Israel’s security,” he said. “But he’s putting Bibi on notice, saying, ‘If the shit hits the fan, I’m going to be on the right side of history.’
“Everyone,” Moreno said, “knows what that means.”