Appointment of the Mossad Director: The Petition Before the High Court of Justice

Earlier this week, Israel’s High Court of Justice (Bagatz) considered a petition challenging the appointment of Roman Gofman as Director of the Mossad. On the eve of the hearing, Prime Minister Benjamin Netanyahu addressed the matter publicly for the first time, emphasizing that the appointment of the Mossad Director and the Shin Bet Director falls within the exclusive prerogative of the head of government. Adv. Maxim Rakov, Partner and Head of the International Department at ENR Law (Elbert Nazaretsky Rakov & Co.), former Legal Advisor to the National Security Council and Deputy Legal Advisor to the Prime Minister’s Office, examines the legal dimensions of the case and the prospects of the petition.

Are you prepared to disagree with the Prime Minister? He maintains that the authority to appoint the Mossad Director and the Shin Bet Director belongs to him, and not to the Court, the press, or anyone else.

In principle, he is correct. The Prime Minister makes the appointment. It is his decision, and he determines who, in his view, is best suited for the role. The only constraint concerns the legality of the appointment itself, and several elements come into play here. First, there is the so-called Grunis Committee, which verifies whether a candidate is “clean.” The question is not whether he is suitable, whether he is the best candidate, or whether he is sufficiently qualified, but solely whether there is anything in his background, such as a criminal record or other conduct, that would cast doubt on the integrity required for the role.

The Grunis Committee approved the candidacy, although Asher Grunis himself voted against it.

Yes, and this is the principal difficulty from the perspective of the petitioners. The Committee approved the appointment. Had the Committee withheld its approval and the Prime Minister nevertheless proceeded with the appointment, there would have been grounds for judicial intervention. But the Committee did approve it. Under the law, the Committee decides by majority vote. One could argue that there are problems with the composition of the Committee itself. For instance, Prof. Talia Einhorn, a member of the Committee, is the mother of Srulik Einhorn, an advisor to the Prime Minister, which raises a conflict of interest. However, that should have been challenged at the time of her appointment to the Committee, not in connection with a specific case. There is therefore no basis to argue at this stage that the Committee’s decision was unlawful: Justice Grunis voted against, the remaining members voted in favor, and the Prime Minister acted on the basis of the Committee’s recommendation.

What is the substantive objection to Gofman as a candidate for Director of the Mossad?

The principal objection is that he lacks experience in the intelligence field. That is indeed the case, although there have been precedents. The High Court of Justice is not the forum that decides who is suitable for a particular position.

Why, then, does the Court accept such petitions for review rather than determining that the matter has been handled in accordance with the law and declining to intervene?

The Court examines whether the decision was taken in accordance with the law. The petition raises arguments concerning Gofman’s experience, the Uri Elmakays affair, and so on. The Elmakays affair is invoked as evidence that the appointment is unlawful. In theory, the Court could conclude that the Committee’s decision was unlawful on the basis that the candidate’s conduct was so egregious that no such decision could properly have been taken.

Does this mean that the petition is directed not against the Prime Minister’s decision, but against the decision of the Grunis Committee?

The petition is directed against the Prime Minister’s decision. There is no formal petition against the Grunis Committee’s decision, because such a petition would have had to be filed at the time the Committee rendered its decision. As for the Uri Elmakays affair, it is a strange and troubling matter. Factual questions remain open: whether Gofman knew about Elmakays specifically, whether he was aware of his arrest. Opinions diverge. The Court does not rule on the factual merits. What is known is the following: as a division commander, Gofman authorized operations that in principle had not been sanctioned, aimed at influencing public opinion in Arab countries, an area that fell outside his remit. It is for the Prime Minister to determine the extent to which this disqualifies the candidate. That decision rests with the Prime Minister. He is entitled to reach the wrong conclusion. The Court is not an appellate instance with respect to decisions of the head of government; its role is confined to determining their legality.

It follows from what you are saying that the prospects of the petition succeeding are slim.

In my view, they are slim. If the Court were to intervene in this matter, I would consider that it had exceeded the bounds of its authority. We have been witnessing a worrying erosion in the Court’s practice, with the Court intervening in a number of situations in which it could properly have refrained from doing so. This provides ammunition to the Court’s critics, who argue that it is unlawfully expanding the scope of its powers. I do not believe the Court will intervene in this case. The Prime Minister will shortly face elections, and the electorate will determine how well he has discharged his duties. The appointment of the Mossad Director and the Shin Bet Director is a prerogative of the head of government.

If, before the Court hands down its decision, the Prime Minister announces early elections, could that suspend the process until the next government is formed?

That is theoretically possible, but the decision has already been taken. The restriction on senior governmental appointments in the period immediately preceding elections should not apply here, because the decision has already been made and what is now at issue is a petition against that decision. It would not be open to the Court to say that, with elections imminent, it should wait for the next Prime Minister to appoint the next Mossad Director. I do not believe this should affect the course of the proceedings.