Getting rid of these troublesome officials: Can Netanyahu fire AG, IDF chief, Shin Bet head?
PM denies plans to boot IDF and Shin Bet chiefs, though doing so would be fairly simple; government is in open conflict with AG Baharav-Miara, but ousting her would be more complex
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
In what seemed like a highly portentous recent comment, Prime Minister Benjamin Netanyahu on November 4 vented his frustration with what he said was Attorney General Gali Baharav-Miara’s “adversarial relationship” with the government, and asked Justice Minister Yariv Levin to find a “solution” for the problem.
At a cabinet meeting on Monday, meanwhile, the prime minister is said to have accused Baharav-Miara of “causing a constitutional crisis” by pushing for the dismissal of far-right National Security Minister Itamar Ben Gvir for intervening in the functioning of the police in ways prohibited by the High Court of Justice.
Netanyahu’s comments reflect his and his government’s deep resentment toward the attorney general, who has repeatedly opposed government decisions, actions, and legislation since the administration took office. Several ministers have repeatedly called for her dismissal.
Accompanying the recent sacking of defense minister Yoav Gallant and the disciplining of coalition MKs for defying the government’s desire to pass laws to entrench the exemption of ultra-Orthodox men from military service, the prime minister’s critical comments regarding the attorney general indicate that further house-cleaning might be in the offing.
That impression was reinforced in a report, denied by Netanyahu, that he was considering removing IDF Chief of Staff Herzi Halevi and Shin Bet domestic security force head Ronen Bar from their posts.
A move against the attorney general, one of the key so-called gatekeepers of the law enforcement system, as well as the heads of the security establishment would set off loud alarm bells that critical institutions and the rule of law were being politicized.
In its judicial overhaul agenda, which roiled the country in the first half of 2023, the government sought to assign itself almost total control over the judiciary and legal system, seen as the only check on executive power in Israel.
Although the radical legislation proposed by the government has been shelved, frozen, or struck down by the High Court of Justice, the administration — and Justice Minister Yariv Levin in particular — has continued to attack the legal establishment.
Given Netanyahu’s ominous remark about finding “a solution” for the attorney general, it is not beyond the realm of possibility that he may seek to oust her, as demanded by ministers including Likud’s David Amsalem and Shlomo Karhi.
Similarly, both Halevi and Bar have faced repeated attacks by cabinet ministers, while Netanyahu has accused the security establishment of failures relating to the Hamas October 7 invasion and atrocities without taking responsibility himself. Firing them does not seem to be a totally unrealistic step.
But how could Netanyahu and his government go about ridding themselves of these troublesome officials, if they wished to?
By committee: Sacking the attorney general
Giving the attorney general the boot is, without doubt, the trickiest and most difficult dismissal to accomplish out of the three officials potentially in the firing line.
The regulations for hiring and firing an attorney general, the government’s chief lawyer and legal adviser, are laid out in a government resolution passed in 2000.
That resolution established a five-member public committee that is responsible for appointing the attorney general and plays a substantial role in the dismissal process should the government go down that path.
The committee comprises a former Supreme Court justice chosen by the president of the Supreme Court with the agreement of the justice minister; a former justice minister or attorney general chosen by the government; an MK chosen by the Knesset’s Constitution, Law and Justice Committee (which is currently headed by Religious Zionism coalition MK Simcha Rothman); a representative of the Israel Bar Association (IBA); and a law professor chosen by the deans of Israel’s university law faculties.
The panel remains in place even after an attorney general is appointed, any members who are unable to continue replaced when necessary.
The head of the committee currently is former Supreme Court president Asher Grunis, who was appointed to the panel that oversaw the selection of Baharav-Miara in 2022 under the Bennett-Lapid government, during the tenure of then justice minister (and recently appointed foreign minister) Gideon Sa’ar, who strongly backed her candidacy.
The spots on the panel for a former justice minister or attorney general, and serving MK are currently open — with the government able to fill them at its discretion — while the representative of Israeli law faculties is Prof. Ron Shapira and the IBA representative is Tami Ulman.
Shapira is a conservative legal academic who supported, in part, the government’s judicial overhaul, and has said there is no need for a state commission of inquiry into the failures behind the October 7 Hamas attacks. He was also appointed by the government to serve as Israel’s ad hoc judge at the International Court of Justice in The Hague.
If Shapira were amenable to arguments against Baharav-Miara, that would mean there could be a three-to-two majority on the panel to support her dismissal.
It is also notable that Grunis was opposed to Baharav-Miara’s appointment when she was selected by the previous government, stating that she was not qualified for the job, according to a report a year after she was chosen.
Proper cause
There are only four reasons for which the government can seek to replace the attorney general, three of which relate to the individual’s fitness and ability to carry out the job.
The other consideration is if there are “substantive and ongoing differences of opinion between the government and the attorney general which create a situation in which prevents effective cooperation.”
Baharav-Miara has opposed the government’s position and that of cabinet ministers on a plethora of concerns and has issued instructions that have caused the administration innumerable headaches. The government might therefore be able to make a cogent case that there are sufficient grounds based on that consideration to terminate her position.
To do so, the justice minister first needs to deliver the government’s objections to the functioning of the attorney general to the public committee in writing.
The committee must then give the attorney general a hearing to allow them to present their position, after which the committee would issue a recommendation to the government on whether or not they should be fired.
Before making a final decision, the government must also give the attorney general a hearing.
Crucially, the government is not required to follow the committee’s recommendation.
Still, should the committee recommend against firing Baharav-Miara, it would likely make removing her from office more difficult, said Dr. Guy Lurie, a research fellow at the Israel Democracy Institute.
“Administrative law in Israel says that these kinds of professional recommendations from official committees should not be ignored lightly,” he said. “The committee’s decision has a lot of weight in administrative law.”
Rejecting the committee’s recommendation could give greater heft to the inevitable petitions to the High Court that would be filed against a decision by the government to remove the attorney general from office, and the government would need a “compelling reason” to dismiss her for the decision to stand up in court, Lurie added.
The High Court would be able to review the government’s decision using tools of administrative law, such as weighing whether immaterial considerations were used to make the decision, and whether or not it was unreasonable in the extreme.
There is, in theory, another way around this whole problem for the government: It could simply annul or amend the 2000 government resolution that laid out the whole process in the first place and replace it with a far easier system for firing an attorney general.
But government resolutions are themselves subject to judicial review by the standards of administrative law, and the High Court would likely take a dim view of a process in which the old system was abolished and a new process put in place to be followed swiftly by the dismissal of Baharav-Miara.
Unprecedentedly ousting the IDF chief of staff
Firing the IDF chief of staff would appear to be a far easier and simpler process, even though there is no law that lays out how to do so, and no IDF chief of staff has ever been fired in the annals of Israel’s history.
But a principle of administrative law is that public officials can be fired in the same way they are hired.
The fundamental Basic Law: The Army lays out a simple process for appointing an IDF chief of staff: The defense minister recommends a candidate, and the cabinet votes on whether to appoint them or not.
For the current government to fire Halevi, newly appointed Defense Minister Israel Katz would merely need to recommend that he be fired, and the cabinet could then vote on that recommendation.
Chiefs of staff serve for three years, with many awarded a fourth year. Halevi, who has indicated since the catastrophe of Hamas’s invasion and slaughter on October 7, 2023, that he will remain in the post for as long as the defense minister wants him there, took up the position in January 2023. He will thus be in situ for more than another year, unless the government steps in.
Spooking the director of the Shin Bet
The Israeli Security Agency Law of 2002 stipulates that the head of the Shin Bet, the internal security agency, can be removed from office by the government, although it doesn’t state precisely how this process should happen.
The Shin Bet chief is appointed by the cabinet “according to the recommendation of the prime minister,” so, in theory, the prime minister would need to recommend that Ronen Bar be fired before the cabinet can vote on his removal, in accordance with the principles of administrative law.
Regardless, the process of removing the Shin Bet chief, as with the IDF chief of staff, is entirely within the government’s control.
Both decisions would be subject to judicial review, but Prof. Amichai Cohen, a senior fellow at the Israel Democracy Institute’s Center for Security and Democracy, said he did not believe the High Court would seriously entertain petitions against firing either of those figures.
“There would have to be something very extreme for the High Court to intervene, since these [dismissals] would be matters of security, and the High Court by tradition doesn’t intervene on such issues,” said Cohen.
He added that the only tool of administrative law for reviewing such decisions would be the principle of reasonableness, since neither of the laws regarding the IDF chief of staff and Shin Bet chief define how and in what circumstances those figures can be removed from office.
Legal entanglements
Both Lurie and Cohen also pointed out, however, that there are two criminal investigations currently underway into alleged wrongdoing inside the Prime Minister’s Office.
One investigation being conducted by the police and the Shin Bet is focused on allegations that a PMO spokesperson and several IDF officers unlawfully removed and leaked sensitive security documents to the foreign press.
The other, being conducted by the police, is centered around allegations that Netanyahu’s chief of staff Tzachi Braverman was involved in a scheme to alter the minutes from wartime meetings.
Firing either the attorney general or the head of the Shin Bet at this juncture, with both of those PMO-related investigations in process, could be considered a violation of Netanyahu’s 2020 conflict of interest agreement. That agreement, submitted to the High Court, led the justices to allow Netanyahu to serve as prime minister despite being under indictment in three cases on allegations of corruption.
Under the terms of that agreement, Netanyahu — who is seeking to postpone his own scheduled testimony next month in those three corruption cases — is barred from involvement in the staffing of key posts in the law enforcement agencies and legal establishment.
Embroiling himself now in the firing of top officials — and most especially the attorney general — might create more problems for the prime minister than it solves.
