Even before Shin Bet Director Ronen Bar’s stunning Monday affidavit against Prime Minister Benjamin Netanyahu, there was a history of the Israeli premier’s top former intelligence chiefs accusing him of potentially illegal actions.
Former Mossad director Tamir Pardo (2011-2016) accused Netanyahu of spying on him and of ordering 24-hour preparations for an illegal strike on Iran without security cabinet approval.
Former Shin Bet chief Yoram Cohen (2011-2016) accused Netanyahu of ordering him to spy on the other top Israeli defense and intelligence chiefs, which he refused to do.
Cohen also accused Netanyahu of trying to use Shin Bet powers against political rival Naftali Bennett.
But the full unpacking of Bar’s accusations, along with the Qatargate saga, draws into question the basic underpinnings of any future relations between future Sin Bet heads and future prime ministers, as well as how this relationship impacts the rule of law in the country.
First, according to Bar, Netanyahu began to actively move to oust him when the Shin Bet chief refused to declare that it was unsafe for the prime minister to testify in court due to various foreign threats to his life.
Incidentally, Netanyahu has been testifying around twice a week since December without any known threats or close calls when attending his trial.
Second, Bar said that Netanyahu was angry with Bar for his repeated refusals to use surveillance against certain anti-government protesters. This issue is connected to the rule of law because many of the protesters took to the streets to, as they see it, protect judicial independence from an encroaching executive branch of potentially limitless power.
Third, Netanyahu went into overdrive to oust Bar once the Shin Bet chief approved probes into top Netanyahu aides in the Qatargate saga. Various top Netanyahu aides are suspected of receiving funds from Qatar at a time when they also impacted Israeli policy regarding Qatar and the negotiations over the Israeli hostages held by Hamas.
To top all of this off, at some point, Netanyahu straight up told Bar that if he [Netanyahu] had a conflict with the High Court of Justice, Bar was bound to follow the prime minister against the High Court. Notably, Bar said that Netanyahu made many of these statements only after asking his military secretary and official record keeper to leave the room, such that there would be no record or proof of the conversation.
Not every country has an agency with the draconian powers of the Shin Bet. In Israel, the agency’s extreme powers of spying and interrogation are necessary and justified to defend against a wave of emergency terror plots which the state constantly faces from foreign enemies, such as Hamas and Iran.
In recent years, the Shin Bet has also been used for domestic issues, including assisting with tracing COVID-19 distancing violations, though the agency always protested when it was used for matters beyond its anti-terror mission.
There really is nothing that has happened in the anti-government protests against Netanyahu, that would generally justify using Shin Bet powers, though there have been instances where the police have been utilized, and some violent protesters have even been indicted.
The reason the Shin Bet is used against Jews who perpetrate violence against Palestinians is because the Palestinians are a foreign people and their own police often have no chance of stopping extremist Jewish violence, especially in areas where the reach of the Palestinian Authority (PA) is weaker.
But that is an exception that proves the rule.
The idea that Netanyahu might have tried repeatedly to use the Shin Bet to avoid his trial going forward – regarding his testimony – raises, once again, the question of whether he can be prime minister and on trial at the same time.
It also proves that whenever Netanyahu’s trial or his political career ends, a new law must be passed to prevent a prime minister from continuing in office once indicted (Former prime minister Ehud Olmert resigned before an indictment.).
The Qatargate saga suggests that there must be a new special mechanism for someone outside the chain of command of either the prime minister or the Shin Bet chief to conduct such a probe. The relations between the prime minister and the Shin Bet chief are too intimate to create a situation in which the Shin Bet chief is probing the prime minister’s aides or the premier himself.
Note that unlike the process for appointing the IDF chief and the police chief, where the prime minister has influence but his influence is not always decisive, the chiefs of the Shin Bet and Mossad, because of how sensitive their roles are and how much they must “invade” the prime minister’s privacy, and sometimes even his sleep, for national security purposes, are hand-picked directly by the prime minister.
Bar is correct that the highest loyalty of the Shin Bet chief must be to the country over the prime minister, but Netanyahu is right that the intimate relations between a prime minister and a Shin Bet chief require a higher level of trust than almost any other government relationship.
It may be time to have an independent mechanism in place so that future Shin Bet chiefs do not need to make that choice.
Knesset law should be passed
Likewise, it now seems that a clear Knesset law must be passed regarding keeping records at all times of all prime minister-Shin Bet chief talks, with no exceptions. This would discourage prime ministers from making illegal requests, and if they did so, there would be another clear neutral witness who could testify on the issue.
Similarly, the question of who the Shin Bet chief follows if he gets contradicting directives from the prime minister and the High Court should likely be clarified by law.
This is because the answer is not obvious.
While it is obvious that the IDF chief should follow the High Court over the prime minister when there is sufficient distance between the positions of the IDF chief and the premier and the issue in question is neither hazy nor borderline, it is less obvious with the Shin Bet chief who has special powers and a unique link to the prime minister.
For example, there are times when the prime minister may tell the Shin Bet or Mossad chief to undertake certain covert actions which the world and even many Israeli judges might initially consider to be illegal under international and domestic law.
Is it obvious that every assassination on foreign territory is legal? What about when innocent civilians are nearby and might or might not get caught up in the crossfire? Is every enhanced interrogation legal? The High Court has banned torture, but there are a lot of tools the Shin Bet uses in interrogations which it believes fit the definition of “moderate physical pressure” but which might or might not pass a court’s after-the-fact judgment. How much can a Shin Bet chief second guess the prime minister on such issues?
On the other hand, if a prime minister makes a request that is a departure from the Shin Bet’s mission, such as handling COVID issues, perhaps the agency should have the right to refuse or to consult the High Court, or a special national security court, on an emergency basis for a rapid decision.
The US has employed such courts for some issues since the September 11, 2001 terror attacks.
Addressing these issues is important, not only to restore public faith in the prime minister’s and the Shin Bet chief’s offices but also to avoid future misunderstandings and unnecessary deteriorations in relations between these key officials.
Future prime ministers and Shin Bet chiefs need to know how far they can go and where there are guardrails.
If there is one sunny point in the current disastrous relations between Bar and Netanyahu it may be that it could pave the way for “breakdown-proofing” relations between officials holding their jobs for now and far into the future.
