Government tells High Court it can’t be forced to work with Shin Bet chief it doesn’t trust
AG says decision to fire Ronen Bar ‘tainted with fundamental flaws,’ has implications for independence of security and law enforcement officials in exercising their power
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Prime Minister Benjamin Netanyahu and his government argued in a legal submission to the High Court of Justice on Monday that the court cannot force it to work with a Shin Bet chief it does not trust, following the cabinet’s unanimous decision last week to fire the head of the domestic intelligence agency, Ronen Bar.
The submission also argued that the court does not have scope for judicial intervention over the decision since the question of who heads the agency is a matter of state security, an area of policy over which the court has traditionally refused to intervene.
The prime minister and the government also contended that there was no conflict of interest in firing Bar despite the Shin Bet’s investigation into the so-called Qatargate scandal, and that the mutual and public animosity between Bar and the government made it impossible for the two to work together any longer.
The legal submission was a response to petitions to the court by several political parties and government watchdog groups demanding an interim injunction freezing Bar’s dismissal.
The court issued a temporary injunction on Friday freezing the government’s firing of the Shin Bet chief, but an interim injunction would remain in place until the court makes a final decision on the petitions themselves.
The government fired Bar on Thursday night at the recommendation of Netanyahu, who said he had lost faith in the Shin Bet chief’s ability to do his job.
The Yesh Atid, National Unity, Yisrael Beytenu, and Democrats opposition parties, along with Movement for Quality Government in Israel, the Israel Democracy Guard, and Telem – The Movement for Integrity in Government, all petitioned the High Court against the move, arguing that Netanyahu and the government had a severe conflict of interest in firing Bar due to the Shin Bet’s ongoing investigation into allegedly unlawful ties between Netanyahu’s aides and Qatar.
The High Court issued a temporary injunction against Bar’s dismissal and ordered the prime minister and the government to respond to the request for an interim injunction by Monday.
The court has also scheduled a hearing for the petitions on April 8 in front of a panel of the most senior judges on the court — Supreme Court President Isaac Amit, incoming Deputy Supreme Court President Noam Sohlberg, and Justice Daphne Barak Erez.
Attorney general details why the government is wrong
Attorney General Gali Baharav-Miara has allowed the government to obtain independent legal counsel for the High Court proceedings due to her opposition to Bar’s dismissal.
Usually, the state response to a petition against the government is filed by the Attorney General’s Office, but in cases where the attorney general disagrees with the government’s position the Attorney General’s Office will file its stance to the court, and sometimes, but not always, allow the government to file its own response independently.
She requested on Monday night that the court allow her to file the state’s response to the interim injunction request at the same time as its full response to the petitions themselves, three days before the April 8 hearing, owing to the “complexity, unprecedented [nature] and importance of the issue.”
She added, however, that the state could already assert that the government’s decision to dismiss Bar was “tainted with fundamental flaws that go to the root of the administrative action, both in relation to the decision-making process and in relation to the discretion exercised in making the decision.”
Baharav-Miara noted that the government’s dismissal of Bar had “significant implications for the tenure and perception of the role of senior officials in the defense establishment, the law enforcement system, and the public service in general,” regarding “their independence in exercising powers granted to them by law, and for loyalty to the public (as opposed to their personal loyalty to the official who appoints them).”
Government argues that the firing is none of the court’s business
In their response to the request for the interim injunction, filed by attorney Zion Amir, Netanyahu and the government noted that the Shin Bet law of 2002 gives the government the authority to fire the head of the agency on the prime minister’s recommendation.
Since the Shin Bet is one of Israel’s security services, the government argued that the court has no scope for judicial intervention owing to its longstanding and rarely broken tradition of not intervening in policy decisions regarding state security.
“Appropriating security authority and responsibility and transferring it to the court, which lacks the tools to implement this security responsibility, would leave the country without a clear responsible [authority] for the peace and security of its citizens and soldiers,” the government told the court.
“This is at a time when the State of Israel is amid an existential war on seven fronts against an enemy seeking to destroy it.”
The response also pointed out that Bar wrote a damning letter just before he was dismissed, blasting the government for what he said were its “fundamentally invalid motives” for removing him from office.
The government argued in its submission that the court cannot force the prime minister and the government to work with a Shin Bet chief they don’t trust and who apparently does not trust them.
The government further pointed out that Bar decided not to appear before the cabinet to rebut the claims against him, and, furthermore, did not petition the court himself. It contended that previous court rulings have held that petitions by public groups regarding an individual who did not himself challenge the decision cannot be heard.
The submission also rejected the claims that Netanyahu and the government had a conflict of interest regarding the Shin Bet investigation into the allegedly unlawful ties between senior aides to Netanyahu and Qatar, claiming that the investigation was initiated to thwart Bar’s dismissal.
In addition, it was argued that since Netanyahu is himself not a subject of the investigation there was no conflict of interest anyway.
The filing included a letter that Bar sent to Netanyahu last month advocating the formation of a state commission of inquiry into the Hamas-led October 7, 2023, terror onslaught, which the premier prevented the Shin Bet from sharing with other ministers.
State commissions of inquiry — Israel’s highest investigative authority — are headed by a retired Supreme Court justice and appointed by the sitting chief justice. Netanyahu, whose government is seeking to weaken the judiciary, opposes a state commission of inquiry, claiming it would be biased against him.
Bar’s dismissal spawned massive protests around the country, with demonstrators also railing at the resumption of the war against Hamas in Gaza and the failure of the government to finalize a deal with the terror group to release all the remaining hostages.
Following the court’s decision to freeze Bar’s dismissal, Baharav Miara — against whom the government has also initiated a removal process — told the government it was legally prohibited from appointing a new head of the Shin Bet, or even conducting interviews for the job, including an interim head.
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