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Democracy in Times of War

The Perfect Smokescreen: War and the Dismantling of Israeli Democracy


Aug 15, 2024



The ongoing war in Gaza, the north of Israel and with Iran, has become an inadvertent boon for the judicial coup outlined by Minister of Justice Yariv Levin in January 2023. Despite Prime Minister Benjamin Netanyahu's assertion in October 2023 that the overhaul was off the table, the reality paints a starkly different picture.

 

1.  Systematic Weakening of the Attorney General

A cornerstone of Levin's plan was the appointment of political legal advisors and nullification of the Attorney General's binding legal opinions. Recent months have seen the government acting in precise accordance with this blueprint.

The letter from Attorney General Gali Baharav-Miara earlier this month, emphasizing “flawed decision-making processes in the government”, comes as no surprise to those monitoring governmental actions. The irony of addressing this letter to Prime Minister Netanyahu is palpable, reminiscent of Enron whistleblower Sharon Watkins warning company founder Kenneth Lay about financial fraud, when Lay himself was a key conspirator.

The historically symbiotic relationship between the Government Secretariat and the Attorney General's Office has never been more strained. This unprecedented tension stems not from the Attorney General's actions, but from the government's persistent law-breaking.

Daily provocations against the Attorney General abound. Recent examples include appointing an interim Chair of the Second Authority for Television and Radio who fails to meet the required criteria for the job; proposing a procedure for appointing the Civil Service Commissioner designed to qualify a Netanyahu loyalist (despite clear warnings of illegality from the Attorney General); and procuring private legal opinions to bypass the Attorney General. This systematic undermining seems to be orchestrated by Cabinet Secretary Yossi Fuchs, Netanyahu's right-hand man in the campaign to neutralize the Attorney General.

Paradoxically, the Attorney General supports the government in 99.9% of cases, even opposing the State Comptroller's investigation of October 7th events and assisting with warfare and international law matters. The government's ire stems from her refusal to aid in dismantling democratic foundations.

  

2.  Eliminating Independent Judicial Review

Government and coalition incitement against the Supreme Court continues unabated during wartime, resulting in an unprecedented violent disruption of a recent Supreme Court hearing regarding the legality of the Sde Teiman detention facility in which Hamas illegal combatants are being held. Justice Minister Levin's silence on this incident is deafening.

The Supreme Court's recent decision to grant Levin one extension after the other for reaching agreements on appointing the next Chief Justice is perplexing.

Levin's agenda remains clear: changing the Court's seniority rule, ensuring political control over judge appointments, and installing a compliant Chief Justice. The prolonged absence of a permanent Chief Justice during wartime stretches the bounds of reasonableness, even for conservative judges.

How can the acting Chief Justice Uzi Vogelman agree on anything with Levin who said just a few days ago referring to the judicial overhaul and politicization of the court, "Nothing will sway me from my path"?

 

3.  The Politicization of the Civil Service

A key objective of the judicial coup is to gain control over the civil service, particularly the gatekeepers. 

This is why Netanyahu insisted last week on passing a government decision about appointing the Civil Service Commissioner in a manner that ensures a loyal commissioner, rather than an independent one.

The proposed government decision emphasized that this only concerns the appointment of the current commissioner. As Trump said to his voters: "Vote for me just this one more time, and we will make sure you never have to vote again."

Meanwhile, the current government is breaking records in appointments without proper oversight. One day, it’s a project manager for the North, another day for the South, and another time a candidate for police commissioner with a questionable track record.

 

4.  The Knesset: A Tool Against Public Interest

In a normal system of checks and balances, the Knesset is supposed to oversee the government, but in the current state of affairs the coalition in the Knesset is more extreme than the government itself. When the government isn't populist enough, outlandish members of the Knesset drag it to extreme positions that even an Olympic gymnast would envy. Take, for example the Chairman of the Constitution Committee, Simcha Rothman, who blamed the Attorney General and the Military Advocate General for being responsible for "anarchy." In interviews, Rothman wondered if, in the midst of a war, “they had nothing better to do.” What has he been occupied with during the war? Promoting a bill for jobs for rabbis, which was ultimately blocked.

There has never been a coalition in Israel that has so blatantly abused the legislative process as this one. This coalition has systematically and extensively promoted private bills and shortened legislative procedures, solely to bypass professional ranks and legislate against the broader public interest.

If the Attorney General warns that the government's decisions on security, budget, and appointments are being made in a distorted manner, then who can guarantee that the laws the coalition is pushing through are any better and serve the public interest? They do not.

 

5.  The Crucial Role of Law in Wartime

War is not a reason to sideline the judiciary and legal counsel. On the contrary, in times of war, each of the three branches of government has an important role to play. I didn't write this; the U.S. Supreme Court itself did.

At the height of the bloody Civil War, President Abraham Lincoln decided to transfer the trials of those opposing his policies to military courts. In the 1866 Milligan decision, the Supreme Court overturned his decision, returned a civilian defendant to a civilian court, and ruled that the judiciary has an important role even in wartime.

 In 2004, the U.S. Supreme Court ruled that the government must protect the right of access to the courts even for enemy combatants suspected of terrorism. Conservative Justice Sandra Day O'Connor, who wrote the decision, stated that "a state of war is not a blank check for the President when it comes to the rights of the nation’s citizens."

In 1941, during the darkest hours of England in World War II, Lord Atkin wrote in a ruling by the House of Lords that "In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace."

 The Israeli Military Advocate General’s insistence on investigating what happened to the illegal combatants held at the Sde Teiman facility is intended to protect the democratic image of the State of Israel. Despite the criticism from the extreme right wing players of the coalition, this investigation is a professional duty. The investigation does not undermine the security of Israel nor does it endanger the soldiers in the field, but rather it serves to protect Israel in the international arena. 

 

6.  A Weakened Fourth Estate

The government's media policy is taken from the playbook of autocratic regimes, seeking to control narratives and exhaust public resistance. Efforts to promote sympathetic media outlets while challenging others' press freedom are ongoing.

At the height of the war, the state is making sure to promote regulatory benefits for Channel 14, engage the reporters of Channel 13 News in an existential battle for their press freedom, and exhaust the rest of the media with endless tweets and political struggles that have no real significance.

 

7.  Exhausting the Protest Movement

Unlike the anti-democratic coups in Poland in 2015 and Hungary in 2012, the judicial coup in Israel encountered strong public protest. The government is working on weakening this protest. On the ground, National Security Minister Itamar Ben Gvir supports the violent treatment of protesters. But that's just the beginning. The government is preparing a tough reality that will sap the public’s motivation to protest.

The upcoming state budget is stuck, massive funds are being diverted to populations that do not contribute to growth, centralization and monopolies are on the rise, investments are decreasing, and brain drain is accelerating. The growing deficit and debts are condemning future generations of Israeli children to enormous liabilities. This week Fitch rating agency was the last to join all other global rating agencies in downgrading Israel’s financial rating, with a negative forecast. The reason stated by Fitch was not just the war but also the ongoing signs that the Israeli government is, well, underperforming.

The professional ranks within the Ministry of Finance know this, and understand this. Perhaps this explains the recent report by Channel 12 News that extreme right-wing Treasury Minister Bezalel Smotrich is consulting with advisors from outside the government on structuring the upcoming national budget. This is unprecedented.

 

The day after the war, Israelis will wake up to unprecedented gaps in equality, rising cost of living, and socio-economic erosion. One scenario is that the public might be too exhausted to protest. The other more hopeful scenario is that this reality will drive hundreds of thousands into the streets.

 

 Dr. Ido Baum is the legal commentator of the daily newspaper TheMarker. He is an associate professor of law at the Haim Striks Law Faculty at the College of Management in Israel and heads the Louis Brandeis Institute for Society, Economy, and Democracy. He is also a contributor to USA for Israeli Democracy.

Support the work of the Brandeis Institute in defending democracy in Israel here.

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April 28, 2024

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