National Crisis (Hard Questions, Tough Answers- July 24, 2023)


Yossi Alpher is an independent security analyst. He is the former director of the Jaffee Center for Strategic Studies at Tel Aviv University, a former senior official with the Mossad, and a former IDF intelligence officer. Views and positions expressed here are those of the writer, and do not necessarily represent APN's views and policy positions.

Q. The Knesset on Monday passed a first, draconian ‘judicial reform’ law, beginning the dismantling of Israel’s system of governance. Hundreds of thousands of Israelis protested, went on strike and even (IDF reservists) lay down their arms. How can we make sense of all this?

A. It gets worse. The timing is almost too symbolic to bear. The Ninth of Av (July 27) commemorates the destruction of the First and Second Temples; some protesters argue that a symbolic Third Temple (symbolic of Jewish national independence) just began to fall. In this regard, Israel’s 75th independence anniversary reminds many that the two temples fell, ending the Jewish people’s two previous experiences of political independence back in biblical times, when the Israeli/Judaic state was around 75-80 years old.

Then too, we are about to commemorate 50 years to the Yom Kippur War, an earlier instance of disastrous leadership endangering the country. Over the weekend, a long list of former heads of Israel’s security community wrote the prime minister that they “feel like we are on the eve” of that war.

Want more symbolism? On Saturday night, Prime Minister Netanyahu got a pacemaker to prevent his heart from failing. When he was sedated for the procedure, his temporary replacement as leader of Israel was Deputy PM and Justice Minister Yariv Levin, the ‘father’ of all the noxious, anti-democratic ‘judicial reform’ measures that the Knesset has begun passing.

Q. What exactly did Netanyahu’s coalition of 64 approve in the Knesset on Monday?

A. It approved cancellation of the ‘reasonableness standard’ provision. Previously the law enabled the High Court of Justice to review and even disallow governmental appointments and decisions if they were deemed to be violating basic standards of reasonableness. The new legislation, which affects a basic law of a constitutional nature, required a majority of 61 members of Knesset rather than a simple majority vote.

The vote, by the way, was 64 to zero. The opposition walked out in protest.

Knesset approval of the legislation will allow politicians to appoint convicted criminals to senior positions, and ministers and mayors to confiscate private property. It will enable additional legislation to cancel once and for all conscription of the ultra-Orthodox. The list of corrupt measures and appointments that will be whitewashed by this legislation is endless.

Passage of this measure marks a first, far-reaching step toward realizing Levin’s vision, with Netanyahu’s blessing and the approval of the coalition, of awarding extremely disproportional primacy to Israel’s legislative and executive branches of government over the judicial branch. It constitutes a major step toward redefining Israel as an ‘illiberal democracy’ similar to Turkey, Hungary and Poland. Some academics and opposition politicians go further and argue that this constitutes the beginning of ‘dictatorship’.

As the business world looks on, assesses the potential harm to Israel’s societal infrastructure, and witnesses the exodus of high-tech ventures to more tranquil pastures, the damage to Israel’s economy has already commenced. By Monday, some sectors of the economy had declared a strike. A taxpayers’ strike could be on the horizon.

Q. Protests have been raging. IDF pilots and a multitude of other IDF officers have declared an end to their volunteer reserve service. Heads of the security community, who support the protest and refuse to serve a non-democracy, are warning that Netanyahu’s decisions are weakening Israel. Enemies like Iran and Hezbollah are liable to conclude that Israel is ripe for attack. How can you make sense of this?

A. All we can really do at this moment in time is try to understand the options and decisions that the key actors have been contemplating. And keep in mind the centrality of Israel’s security community to this entire drama.

Q. Netanyahu? What were his considerations?

A. If the reasonableness standard legislation had fallen or been cancelled due to popular and international (Biden!) pressures, Netanyahu might have lost his right-messianic-Kahanist coalition. Ultimately he needs both the coalition and a weaker judicial branch in order to evade his trial on charges of corruption.

On the other hand, could Netanyahu’s health crisis have been seized upon as a good excuse to shelve the controversial ‘judicial reform’ in the interest of even temporary national unity? Wasn’t Knesset opposition star Benny Gantz offering his services for an alternative, unity coalition?

Netanyahu, released from hospital Monday morning, now presumably contemplates all those existential issues one encounters upon discovering that his/her heart is not in great shape. (I should know; I’m on my second pacemaker.) What has been going through his head? Retire and relax? Go down fighting? What do influential wife Sara and exiled son Yair have to say?

Then there is the crucial question as to the extent Netanyahu is actually in charge. Some allege that he has mortgaged his future to the extremists, who are calling the shots. (Before that, they claimed he was a pawn of Sara and Yair.) I happen to believe that Netanyahu himself has really become more extreme, that he is ultimately in charge, that his rejection of all compromise proposals is the real Netanyahu, and that he can reverse course if he wants do. But he does not want to: “We’ll manage without a few [air force] squadrons” he stated flippantly last week, apropos the refusal of volunteer reserve pilots to answer the call to serve what has become a flawed democracy.

 Which ‘take’ on the prime minister is accurate? The point is, Netanyahu on Monday knowingly presided over a major anti-democratic milestone in Israel.

Q. What is now on the agenda of Yariv Levin, Simcha Rotman and other fervent advocates of cancelling reasonableness and ‘reforming’ the judicial branch?

A. Passage of the measure to cancel the reasonableness standard will now put near-hurricane-force wind in the sails of the ‘judicial reform’ camp. Assuming the country somehow limps along during the coming two-plus months of Knesset summer recess, Justice Minister Levin and Knesset Legislative Committee Chair Rotman will be back in October with more draconian ‘reforms’. They still intend to take over selection of High Court justices and to officially cancel conscription and vestiges of secular education for the Haredim/ultra-Orthodox, who are a vital part of their ‘reform’ coalition.

Q. Or are they? There seem to be signs that the Haredim are worried about offending too many parties.

A. Degel HaTorah, the party of one branch of Ashkenazic Haredim (seven MKs), may indeed be wavering. The Haredim have until now campaigned within the framework of the Netanyahu-Levin judicial reforms to lock their unique status in Israeli society into quasi-constitutional basic laws. Yet the Haredim are keenly aware of the seething anger against them that has welled up in Israeli secular society. Much of secular and traditional Israel and even some Orthodox view their unique status as parasitic, draft-dodging and tax-avoiding.

The Haredim do not share the protesters’ concern about democracy and the behavior of Israel’s political leadership; they prefer the edicts of their rabbis. But they do traditionally fear angering non-Haredi centers of power that could threaten their autonomy. Degel HaTorah’s newspaper, Yated Neeman, last week called to stop ‘judicial reform’ once the reasonableness standard cancellation bill is passed.

Q. Didn’t Defense Minister Galant hold the key to pressuring Netanyahu to back off from legislating this first measure of judicial reform this week?

A. The IDF top brass, led by Chief of Staff Herzi Halevy, cannot speak out publicly regarding the danger to security posed by judicial reform legislation without sounding as if they are intervening in national politics and even fomenting a coup. Both Halevy and Galant--a civilian who can speak out and did so back in March--know that the growing wave of resignations from volunteer reserve duty is already weakening the IDF and that its inevitable spread to the ranks of active-duty personnel will be disastrous for the Israeli ethos of a ‘people’s army’.

On Saturday, Galant finally called for postponing this week’s legislation. This last-minute act of protest had no effect. Neither did last-ditch attempts by Galant to extract from Netanyahu and from Levin (to whom Netanyahu repeatedly deferred) some sort of symbolic concession to offer the opposition in order to reach even a temporary compromise. Ultimately Galant bowed to coalition will and voted for the anti-democratic measure. He presumably preferred to remain in office for fear that he could be replaced by someone too extreme even for his taste, like Kahanist-messianic Finance Minister Bezalel Smotrich.

Now Galant must answer for the damage done to Israel’s security by the Netanyahu-Levin anti-democratic ‘reform’: the damage to deterrence, the damage to IDF capabilities, and the damage to the IDF as a people’s army.

Q. What about President Herzog?

A. He tried. The compromise talks he hosted for months have evaporated. On Sunday he pushed a compromise whereby the reasonableness standard would be watered down and any further ‘reform’ legislation postponed. Neither side seemed enthusiastic. For his part, Netanyahu could only seethe last week at the sight and sound of Herzog addressing both houses of the US Congress while the prime minister tried to wheedle some sort of left-handed invitation from a highly critical President Biden.

Notably, the Histadrut labor federation as well as a number of prominent academics, journalists and security community veterans, like Herzog, presented compromise formulae and ideas. They too failed. Not only did the ideological hard core on both sides dig in, but the coalition judicial ‘reformists’ also generally refused to contemplate the minimal demand of the protesters that, for serious talks to begin, the ‘reform’ legislative process had to stop.

Q. And High Court President Hayut?

A. Esther Hayut is obliged to retire in October, having reached the age-limit of 70. She may reckon she has nothing to lose by latching onto the inevitable appeals that will now quickly be submitted to the High Court against this week’s reasonableness legislation, and disallowing the legislation based on the principle that this is ‘a constitutional amendment that is unconstitutional’. She and additional justices could also resign in protest. Either act would generate what will inevitably be called--in a country that has no constitution--a ‘constitutional crisis’.

Here we may witness the High Court voiding a law that is designed to limit its own jurisdiction. Hayut’s apparent successor, Justice Yitzhak Amit, calls this a “constitutional nightmare”.

Q. Bottom line: what is happening to Israel?

A. Ofer Shelah summed up eloquently in Sunday’s Yediot Aharonot:

Netanyahu generated this disaster, but he is not acting in a vacuum. In 75 years we have not learned to create an ethos of civil partnership. . . .  All this has been inflated by 56 years of occupying another people and maintaining a regime of de facto apartheid over millions of people. . . . Is it any wonder that the IDF, the body that is sanctified by the Israeli ethos, whose essence is exercising power, has inevitably become the battlefield for this domestic fight?

It is demography, not reasonableness, that will determine Israel’s course in the years ahead. Netanyahu currently commands a coalition of 64 rightists, ultra-nationalist settler Orthodox messianists, and Haredi ultra-Orthodox anti-democrats. The anti-Zionist settlers and the anti-Zionist Haredim have by far the country’s highest birth rates, conveniently subsidized by taxing the secular and traditional sectors. The next Haredi-settler-messianist-Likud ‘reformist’ coalition will number 66. Then 70.