Attorney General Gali Baharav-Miara has abused her powers to stymie the government at every turn

Photo: Flash90

The Israeli cabinet’s decision to fire Shin Bet head Ronen Bar would appear to be a strange cause around which those seeking to remove Prime Minister Binyamin Netanyahu from office should choose to rally.

The Shin Bet has primary intelligence-gathering responsibility for Gaza. And clearly the Simchas Torah 5774 attack represents an enormous intelligence failure. Bar himself has admitted as much. In an October 16 staff memo, he wrote, “The responsibility is mine.... We failed to establish sufficient deterrence to thwart the attack.”

The failure was not that of the Shin Bet alone. As was the case prior to the 1973 Yom Kippur War, all Israeli intelligence agencies bought into a conceptzia that the enemy either would not dare to launch an attack or had no interest in war.

According to a military investigation, as reported in the Times of Israel, various intelligence services picked up at least five warning signs — four of which remain classified — of an impending attack in the period leading up to Hamas’s invasion. At 9 p.m. on the evening of October 6, the Shin Bet identified Israeli SIM cards in the hands of Hamas fighters being activated. Though that in and of itself is not highly unusual, the numbers of cards being activated was higher than usual, and sufficient to apprise intelligence officials in the Gaza Brigade and Southern Command.

Throughout the night, numerous consultations were held between Southern Command head General Yaron Finkelman, his intelligence officers, and Shin Bet intelligence officials. All the intelligence officers concluded that no large-scale attack was imminent, and that at most, Hamas would mount some attempts at pinpoint incursions. A Shin Bet report written at 3:30 a.m. concluded that Hamas was generally acting in routine fashion and was not interested in escalation.

Prompt action at 3:50 a.m., when the head of Southern Command got off the phone with his intelligence officers and the Shin Bet, might still have thwarted the attack, and would certainly have greatly reduced the horror inflicted by the attackers. But the only concrete steps taken by Southern Command were to call for the deployment of drones and moving a helicopter to an air base in southern Israel. In addition, an elite but small counterterrorist force comprised of Shin Bet fighters and members of an elite Yamam police unit was dispatched toward the Gaza border.

Besides the intelligence failure, there was a second failure of the Shin Bet the night preceding the Hamas attack. No one thought to awaken Defense Minister Yoav Gallant, a former head of the Gaza Brigade and subsequently of Southern Command, or the prime minister. A former Shin Bet official interviewed on Professor Gadi Taub’s podcast said that the Shin Bet thought Hamas leader Yahya Sinwar had embarked on a path of moderation to improve the living conditions in Gaza. In the context of that mindset, they interpreted the signs of increased Hamas activity as preparations for a possible Israeli incursion.

Bar and the top Shin Bet brass feared that any upping of the level of alert would trigger Hamas, which, according to the Shin Bet’s theory, was already on edge, and start a war. Alternatively, they feared the IDF might launch a preemptive strike with the same result.

Consider that well. Bar did not awaken the prime minister because he feared he would make the wrong decision and trigger a major war with Hamas. Instead, he decided to make the call himself — one of the most fateful in the history of Israel — rather than leaving it to the duly elected prime minister. Is it any wonder, then, the Netanyahu has repeatedly said that he has lost confidence in Ronen Bar?

EVEN BEFORE the cabinet voted to oust Bar from his position as of April 10, Attorney General Gali Baharav-Miara sent a letter to the Prime Minister informing him that the government is “not authorized to terminate the head of the agency before the end of his term, until the legal and factual foundation underlying your decision has been fully examined and your authority to handle this matter fully assessed.”

The legal and factual bases of the cabinet decision require no deep inquiry. The governing statute explicitly authorizes the government to terminate the head of the Shin Bet, prior to the end of his term. It contains no conditions or qualifications.

Similarly, the factual basis for the termination, as outlined above, is clear. No one argues that the prime minister of a country fighting a seven-front war does not need to have confidence in the head of one the most important intelligence agencies.

When Baharav-Miara questions the government’s authority to fire Ronen Bar, she is referring to an investigation of allegations that officials close to the prime minister or in the Prime Minister’s Office received payments from Qatar, directly or indirectly. Among those carrying out the investigation is the Shin Bet. As a consequence, Baharav-Miara argues, not only the prime minister but the entire government has a conflict of interest when dealing with anything connected to the Shin Bet.

The investigation, labeled by the anti-Netanyahu press Qatargate, was, at least in part, initiated by the attorney general herself, wearing her second hat as head of the prosecutorial arm of the government. If there is a conflict of interest for the government, it is one of her own creation. As Prime Minister Netanyahu said in response to Baharav-Miara’s claim of a conflict of interest, “The government did not fire Bar to avoid an investigation; the investigation was started to prevent the government from firing Bar.”

Netanyahu can be forgiven for thinking so. Legal indictments or the rumors of pending indictments have been used by the government legal system in Israel for decades to prevent threats to its power and hegemony. A little history will prove helpful here.

Former High Court President Aharon Barak’s efforts to remake the Israeli judicial system in his image always depended on a compliant justice minister. The appointment of Yaakov Neeman as justice minister in 1996, at the outset of the first Netanyahu government, was thus a threat to the legal system Barak was creating. Neeman could not be intimidated by Aharon Barak’s legal brilliance. He was himself a distinguished professor of tax law and a founding partner of one of Israel’s largest and most prestigious law firms.

Then attorney general Michael Ben Yair, however, made sure that his tenure would be a short one. Yedioth Ahronoth reported that Ben Yair told a group of top prosecutors shortly after Neeman’s appointment that he would make sure that the “new dog” would leave no scratches on the furniture — i.e., introduce any reforms into the legal system.

Ben Yair and State Attorney Edna Arbel dusted off a four-year-old police file on Neeman and indicted him. The police had been instructed to make no recommendation as to whether prosecution was warranted, since Ben Yair knew the recommendation would be negative. At trial, the judge harshly criticized the prosecution for bringing a groundless case. But it did not matter: By that time, Neeman had resigned and would not return to the justice ministry for over a decade.

A few years later, when Ruby Rivlin (subsequently president of Israel), a popular Likud politician, who had been a vocal critic of High Court, was being considered for justice minister, rumors that the police had a “file” on him led to his quick withdrawal from consideration.

In 2007, Prime Minister Olmert appointed Professor Daniel Friedmann as justice minister. Friedmann, like Neeman, could not be intimidated by Aharon Barak. He was himself an Israel Prize laureate in law. He had written numerous articles critical of the High Court’s forays in the public policy, using a standard of “reasonability” to substitute its judgment for that of elected or appointed public officials, and had proposed to remove from the High Court the power to strike down Knesset legislation and to create a new constitutional court that alone would have that power. Worst of all, he argued for a change in the system of judicial selection, which gives the sitting justices a chokehold over new appointments to the High Court.

His proposals were greeted by the legal establishment with horror. The retiring vice-president of the High Court of Justice, Mishael Cheshin, threatened, “If he raises a hand against my House, I will cut it off.” So much for reasoned debate about Court president Aharon Barak’s “constitutional revolution” and the powers claimed by the High Court.

THERE’S ANOTHER PROBLEM with the attorney general’s claim that the government cannot make any decisions touching on the Shin Bet because of its possible conflict of interest. She had her own conflict of interest. Her husband served for many years in the Shin Bet, and she and her husband are close social friends of Ronen Bar and his spouse. (The husband of physicist Shikma Bressler, La Pasionaria of the anti-Netanyahu protest movement, is also a senior official in the Shin Bet.)

And it is clear that the Shin Bet is determined to preserve its prerogatives free of government interference. Nadav Argaman, Ronen Bar’s predecessor, went on TV and threatened to reveal embarrassing information gathered about Netanyahu if the government went ahead with its plans to fire Bar.

Lest anyone think that the legal establishment is so high-minded that there can be no suspicion of it using its powers for personal advantage and to protect the system’s interests, history again refutes any such notion. The various members of the branja (or clique) protect one another and advance their own interests. Their means are leaks to a compliant press, criminal prosecutions of leading politicians with little chance of success, and, in some cases, nothing more than the opening of a police file.

When State Attorney Edna Arbel was being mooted for a seat on the High Court, former communications minister Limor Livnat wrote to the committee on judicial appointments that Arbel had approached her to secure an appointment to a government directorate for her husband. At the time, Arbel had several legal complaints against Livnat on her desk. And the police had already recommended prosecution of then prime minister Ehud Barak for election fraud when Barak decided to appoint State Attorney Edna Arbel’s husband, Uriel, to the board of the national shipping country. (Only investigative journalist Yoav Yitzchak’s revelation of the impending appointment prevented it from going forward.)

Arbel also used her position to benefit Justice Dorit Beinisch, the chief sponsor of her appointment to the High Court and her predecessor as State Attorney. Beinisch’s husband was chairman of the board of the Jerusalem Symphony at a time when it came under investigation by the Tax Authority, the Broadcast Authority, and the Supervisor of Nonprofit Organizations. The latter even secured an order of temporary dissolution of the Symphony’s nonprofit organization from the Jerusalem District Court.

Yet State Attorney Edna Arbel refused to open an investigation of the finances of the Jerusalem Symphony or appoint anyone else in her office to do so. And when Aviram Bogat, the supervisor of Nonprofit Organizations, wrote to then attorney general Elyakim Rubinstein a sharply worded letter accusing Yechezkel Beinisch of having threatened an attorney in his office that she would soon be out of a job if the motion for dissolution was not withdrawn, Rubinstein refused to act. He, too, needed Dorit Beinisch’s support to be appointed to the High Court, as he was. Bogat, however, was fired shortly thereafter by Interior Minister Avraham Poraz. (The attorney general did not question Poraz’s authority to do so, despite Bogat’s exemplary reputation in his position.)

Yechezkel Beinisch subsequently filed a libel suit against the Broadcast Authority. The State Attorney’s Office under Edna Arbel refused to provide counsel to the Broadcast Authority, as would have been customary. Meanwhile, the Movement for Quality in Government produced a report highly critical of the Broadcast Authority’s investigation of the Jerusalem Symphony and sent it to all the relevant governmental bodies, without even interviewing the comptroller of the Broadcasting Authority herself. Wouldn’t you know it, the Movement for Quality in Government had a petition to remove Tzachi Hanegbi from his position as Minister of Internal Security before Justice Beinisch at precisely the same time.

So much for any assumption that high officials in the government legal system — justices of the High Court, attorneys general, and state attorneys — are citizens above suspicion with respect to using their power to advance their interests.

After Pesach, we will consider how Attorney General Gali Baharav-Miara has abused her powers to stymie the government at every turn, and why the cabinet has decided it must be rid of her.

(Originally featured in Mishpacha, Issue 1056. Yonoson Rosenblum may be contacted directly at rosenblum@mishpacha.com)