High Court rules Shin Bet head’s dismissal ‘unlawful’, PM had ‘conflict of interest’

In a dramatic denouement of a bitter fight between the government and the judiciary, the High Court of Justice ruled on Wednesday that the cabinet’s decision to fire Shin Bet chief Ronen Bar was made “improperly,” “unlawfully,” and while Prime Minister Benjamin Netanyahu had a conflict of interest due to the ongoing Shin Bet investigations into his close aides.

Using harsh language, President of the court, Judge Isaac Amit, lambasted the government’s failure to give proper cause for firing Bar, writing that the decision was based on “a thin and shaky factual foundation, at best” and that the decision had therefore been “arbitrary.”

Attorney General Gali Baharav-Miara swiftly told Netanyahu he was barred from appointing a new Shin Bet chief while she worked out the implications of the ruling, due to the court’s finding he had a conflict of interest over the matter.

But Netanyahu described the court ruling as “disgraceful,” alleging it harmed Israel’s democracy and its national security, and, dismissing the attorney general’s warning, declared that he would appoint a new Shin Bet head regardless.

Because Bar announced in April that he would step down as head of the Shin Bet on June 15, the court said it would not issue any operative orders over the matter since it is now moot.

But in the language of its ruling, the court made clear that Bar’s dismissal by the government was fundamentally flawed, meaning that it would likely have led to some form of court intervention had Bar not resigned.

Amit, in his opinion for the majority, also made clear the importance of the case to the ongoing ability of the Shin Bet to act in an independent and apolitical manner, given its task, among others, of preserving Israel’s democratic regime.

The severe flaws in the decision to fire Bar indicated, Amit wrote, “a neglect of basic concepts concerning the Shin Bet and the position of the head of the Shin Bet as an apolitical and independent state official who owes, first and foremost, a duty of loyalty to the public.”

Judge Daphne Barak Erez backed Amit’s opinion, but Deputy President Noam Sohlberg dissented, saying the court should not rule on theoretical issues, especially in light of the fierce societal dispute over Bar’s dismissal and the ongoing conflict between the branches of government.

Sohlberg did acknowledge, however, that there were “significant difficulties” with Bar’s dismissal.

Lowering the Bar

On March 16, Netanyahu announced that he intended to fire Bar, and the Shin Bet chief was dismissed by cabinet vote on March 21 on the basis of Netanyahu’s assertion that he had lost confidence in Bar’s ability to do the job.

Government watchdog groups petitioned the High Court against the decision however, alleging Bar was dismissed due to his defiance of the prime minister on several key issues, not for professional considerations, and that Netanyahu had a conflict of interest due to the Qatargate and leaked document investigations the Shin Bet was conducting into his close aides.

Bar announced he would be resigning by June 15 at the end of April, but called on the court to issue a final ruling on the petitions to safeguard the independence of future Shin Bet heads. The government then annulled the cabinet resolution firing Bar, but the court on Wednesday said that the matter had such great weight that it deserved a ruling despite the petitions having become merely theoretical.

The case aroused huge public controversy, with opponents of the government claiming Netanyahu was trying to suppress the investigations into his advisers, while the coalition and its supporters contended that the attorney general and the court were trying to replace the elected government and its authority.

The possibility of a constitutional crisis arose over the affair, after several senior cabinet ministers said the government should ignore the court should it invalidate Bar’s dismissal.

And similar calls were made by cabinet ministers Wednesday night to ignore the attorney general’s instructions to Netanyahu not to appoint a new Shin Bet chief.

The ruling

In his opinion for the majority, Amit said the role of Shin Bet chief was that of a “gatekeeper” due to the agency’s task of protecting the country’s “democratic regime and institutions,” and rejected the government’s contention that it had “total authority” over the hiring and firing of the head of the service.

Such a position would annul the Shin Bet chief’s professional independence from the government and likely lead to its use for party-political ends, Amit said.

In a key aspect of the ruling, Amit also wrote that the government had been obligated to consult with the Senior Appointments Advisory Committee which approves the Shin Bet chief’s appointment before firing Bar.

The attorney general had told the government of this necessity before it dismissed Bar, but her instructions were ignored.

Netanyahu’s conflict of interest

Amit also determined that the leaked documents affair, in which his military spokesman leaked classified documents to the German Bild newspaper, and the Qatargate affair, in which his close media adviser is accused of various crimes over his concurrent work for Netanyahu and Qatar, meant that Netanyahu had a clear conflict if interest in firing Bar.

The judge also noted that Netanyahu himself has acknowledged that even though he is not a suspect in either scandal, the very existence of the investigations impacted him as prime minister directly.

Amit pointed to several videos Netanyahu posted on social media in which he said that the investigations were designed specifically to harm his position as prime minister, while also noting that Netanyahu had been called by the police to give testimony in the Qatargate affair.

“The prime minister was in a conflict of interest, in a way that should have prevented him from any involvement in the issue of terminating the term of office of the head of the Shin Bet,” wrote Amit.

‘Shaky foundations’

The court president declined to adjudicate the substantive claims by the petitioners and by Bar himself that the Shin Bet chief had been fired due to Netanyahu’s personal and political expediencies.

But Amit did note in an aside that there were “aggravating circumstances” surrounding Netanyahu’s motivations. He pointed in particular to Bar’s claim in an affidavit that the prime minister had asked him to act against anti-government protesters, which he said Netanyahu had not fully refuted in his own affidavit, and the proximity of the initiation of the Qatargate investigation to Bar’s dismissal.

Amit also noted that after Netanyahu announced that Eli Sharvit would be the next Shin Bet chief at the end of March, he rescinded the appointment just a day later, when Sharvit’s support for protests against the judicial overhaul came to light, prompting harsh criticism from the Likud party and other coalition members.

But Amit did take Netanyahu and the government to task for failing to provide any substantive reasoning or evidence for the prime minister’s claim that he had lost confidence in Bar’s ability to do the job, especially in light of the unprecedented nature of the decision, never before made in the history of the country, to fire a Shin Bet chief.

“It would not be an exaggeration to say that what the ministers had before them was a collection of slogans without a single concrete example of the reason why there was an immediate and urgent need to end the term of the head of the Shin Bet, especially without adhering to due process and accepting the position of the advisory committee,” sniped Amit.

He said that Netanyahu’s claims in the written reasoning for firing Bar presented to the cabinet “were not supported by evidence and were not properly reasoned,” and were “formulated in general and vague language, without including necessary factual details such as dates, events or references to concrete events or concrete findings from investigation processes,” and without providing supporting materials such as transcripts from security hearings which could be used to establish Bar’s supposed lack of fitness for the job.

Amit added that no factual foundation for firing Bar or supporting documentation was raised or presented in the actual cabinet hearing in which he was fired, either.

“The prime minister’s claims of loss of trust [in Bar] were not supported by evidence or concrete examples,” wrote Amit, adding that this failure to present a factual foundation for firing him was “not sufficient.”

The court president also noted that Bar was not afforded a proper hearing before his dismissal, asserting that although Bar was invited to attend the cabinet meeting, he had not been issued with concrete claims that he could refute and was given less than 24 hours to prepare for it.

“This decision was made in an improper procedure, without the issue being brought before the advisory committee;… in violation of conflict of interest principles; without an adequate factual foundation; and in violation of the Shin Bet head’s right to a hearing,” Amit concluded.

Netanyahu rejected the court ruling, arguing that the Law for the Shin Bet makes clear that the prime minister and the government are empowered to hire and fire the Shin Bet chief, and rejected Amit’s assertion that such decisions are still subject to judicial review under administrative law.

“That’s the law,” he says. “Clear, sharp. No lacunae… Everyone must obey the law. I must obey the law. You must obey the law. All citizens of Israel must obey the law. The judges must obey the law. And the attorney general must obey the law,” said Netanyahu. “The government of Israel, under my leadership, will appoint the head of the Shin Bet. It is essential to our security. We will do it.”