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The Constitutional Crisis Is Here. How Should Security and Law Enforcement Organizations Act?

Yuval Diskin’s speech - Kaplan, Tel Aviv September 9, 2023

Israel protests 911
Photograph by Gilad Furst, Shatil Stock

Chief of General Staff Herzi Halevi, Police Commissioner Kobi Shabtai, Shin Bet Director Ronen Bar, Mossad Director Dedi Barnea, and Katy Perry, head of the Israel Prison Service:


I am addressing you this evening because you are truly the last line of defense before we go from being an essential democracy to being a dangerous autocracy. I know the organizations in which you were raised, and I am convinced that you possess the heritage, the values, the lessons, and the experience required to contend with the deep democratic, constitutional, and social crisis of this critical period.


Together, my friend former Shin Bet legal advisor Eli Bahar and I consulted with professors of law and senior legal experts who have served in the public sector. We also used our own experience from our work as the director and the legal advisor of the Shin Bet under three governments (Sharon, Olmert, and Netanyahu); with two Attorney Generals (Mani Mazuz and Yehuda Weinstein); and during the Disengagement [from Gaza], the Second Intifada, the Second Lebanon War, Operation Cast Lead, and countless of other operations in Israel and abroad. Our goal was to understand whether we are already in the midst of a constitutional crisis.


I am convinced that, from a declarative perspective, we are already in the midst of a constitutional crisis. When a prime minister refuses to state whether he intends to comply with a ruling of the Supreme Court; when the governing coalition informs the High Court of Justice that it is prohibited from dealing with the question of Basic Laws; when the Speaker of the Knesset and Knesset Members from the governing coalition state explicitly that they will not comply with the ruling of the Supreme Court – this is a severe disruption of the democratic balances, the main basis of which is the government’s obligation to comply with the law.


But it is not a matter of declarations alone, as actions have also been indicative of this state of affairs: Such as when a defendant acts out of a severe and ongoing conflict of interest when dealing with legislation intended to improve his legal situation, thereby violating a court ruling that allowed him to serve [as prime minister] subject to the prohibition against his acting in conflict of interest. Or when the government violates the High Court of Justice’s ruling pertaining to the Conscription Law and, despite this ruling, extends yeshiva students’ exemption from military service. In practice, they are not drafted, and no sanctions are taken against them. Or when the Judicial Selection Committee is not convened simply because Justice Minister Yariv Levin is not satisfied with the law that determines its make-up.

Beyond the declarative and the practical levels, the constitutional crisis is at play every single day in many realms of the public sector, as reflected in attempts to weaken every power center in the country. This has included:


Unprecedented everyday injury to the Chief of the General Staff and the director of the Shin Bet.


The weakening of academia.


Termination of the police’s anti-corruption unit.


A developing sub-culture of threats against legal counsels and judges.


An appointed government minister encouraging police violence.


And, most seriously, the use of a single test for the appointment of public servants: personal loyalty to the government!


Without a shadow of a doubt, this is a government that is working to destroy the democratic foundations of the state. For this reason, each of its actions is suspect. It is a government that has lost its legitimacy. It is a government that is tainted, in its entirety, by irrelevant considerations and, above all else, by the stark conflict of interest of the man at its head, which reflects on its every action!


I am addressing you today, my friends, the heads of the security agencies, because in such times, you are charged with a special responsibility.


With the utmost humility, I would like to suggest to you several tools and principles that are always correct and legitimate, but that during the present period require you to uphold them more meticulously than ever:


  1. You must examine every directive from the government with a fine-tooth comb. You must check that its decisions and instructions are consistent with the provisions of the law and the country’s democratic foundations. And, in your legal consultations, you must consult with the Attorney General in every case of doubt. And this is certainly true if demands are made to surveil protestors against government actions, and I have no doubt that such demands will be made; if demands are made to investigate political opponents; or if demands are made to refrain from dealing with violent and dangerous rioting Jews with close ties to the governing coalition.

  2. You must always comply with the rule of law according to the interpretation of the Attorney General and the judicial system, headed by the Supreme Court.

  3. The independence and professionalism of the Supreme Court is a legal flak jacket that is essential for you and those in your command. Remember – the weakening of the High Court of Justice directly endangers your legal defense, and that of those in your charge, against allegations and interrogations abroad.

  4. Under the current circumstances, you must be suspicious of offensive military operations initiated by the government, and you must carefully examine their necessity. If you reach the conclusion that such an initiative is tainted by irrelevant considerations, you must oppose it, both as individuals and together.

  5. The laws to which you are subject specifically state that you are subject to the authority of the government as a whole, and not solely to that of the supervising minister. Due to this subordination to the government, then, you are not obligated to receive authorization to meet with ministers in order to present them with your assessment of the situation and to share with them any other information that you think is essential for them to know. It is not only the minister’s right to hear the state of affairs directly from you; it is also their obligation to do so.

  6. You are civil servants, and your obligation is to the public. In cases in which you reach the conclusion that it is essential and unavoidable to share information with the public, you must bring this information to the attention of the public.

  7. Do not make do with oral directives from the political echelon. Insist on receiving every sensitive directive with substantiation and in writing.

I would also like to take this opportunity to address the Committee on Senior Civil Service Appointments. It is incumbent upon you to determine that any candidate for a senior position in the security establishment who denies the principle of subordination to court decisions and to the directives of the Attorney General is unfit to fill any senior position, and any senior position within the security establishment in particular!


Herzi, Shabtai, Ronen, Dedi, Katy, and those under you – At the present time, you are truly the final barrier before the collapse of the democratic Jewish state of Israel, in the spirit of the Declaration of Independence!


I have no doubt that you will pass the test, for the good of the state of Israel!


 

Yuval Diskin is a former head of Israel Security Agency (Shabak).


The speech is based on an article published lately by Yuval Diskin and Eli Bahar, the former Legal Advisor of the Israeli Security Agency (Shin Bet), in Haaretz.


Contributed by Yuval Diskin to USA for Israeli Democracy




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April 28, 2024

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