In clash over PM’s right to fire Shin Bet chief, a deeper question about responsibility for Oct. 7
AG and Supreme Court will likely want to know why Netanyahu is firing Ronen Bar now – 17 months after the failure to thwart Hamas’s massacre but exactly when the Shin Bet is investigating the PM’s aides
Jeremy Sharon is The Times of Israel’s legal affairs and settlements reporter
Prime Minister Benjamin Netanyahu’s announcement Sunday night that he intends to fire the head of the Shin Bet, Ronen Bar, immediately elicited fierce denunciation from opposition politicians and liberal organizations that alleged that the premier was seeking to stymie a damaging investigation into the connections of his close aides to Qatar.
As is the norm, the reaction on the other side of the political aisle was the opposite, with cabinet ministers, MKs, and various public figures lauding the move, accusing Bar of responsibility for the October 7 catastrophe, and labeling his dismissal as a “restoration of democracy.”
Much of the debate has centered around the legality of Netanyahu and his government firing Bar in light of the ongoing investigation into aides working with the prime minister and, allegedly, on behalf of the Qatar government at the same time.
But critics have also noted that should Bar’s dismissal go through, it would mean that almost all the heads of the security services on October 7 would have left office, with Netanyahu still in power and continuing to oppose the establishment of a state commission of inquiry into the disaster that would probe, among others, the political echelon.
Netanyahu fired Yoav Gallant as defense minister in November last year, while former IDF chief of staff Herzi Halevi retired this month, and several other senior military commanders and officials have stepped down in the wake of the October 7 failings.
Standing alone following the worst military calamity of the state’s history should by itself raise own questions for Israel’s longest-serving prime minister, his critics have said.
According to the law…
The law for the Israeli Security Agency, to give the Shin Bet its formal English name, is extremely terse when discussing the appointment and dismissal of the head of the agency.
The head of the Shin Bet is chosen by the cabinet upon the recommendation of the prime minister, the law says, adding that “the government is entitled to end the tenure of the head of the Shin Bet before the end of his period of service.”
In theory, then, Netanyahu is perfectly at liberty to recommend to the cabinet that Bar be dismissed, as he plans to do on Wednesday, followed by a vote to formally oust him.
But like all administrative actions in Israel and other common law systems, that decision would be subject to judicial review by the courts.
Such review would be inescapable at this point due to the pledges by Opposition Leader Yair Lapid and several government watchdog groups to petition the High Court if the cabinet does go ahead and fire Bar.
Executive discretion and its limitations
Before dealing with the substantive legal objections to the firing of Bar, Prof. Barak Medina, of the Hebrew University’s Faculty of Law, highlighted concerns raised by the attorney general regarding procedural problems with Netanyahu’s Sunday night announcement.
“The fact that a body has the authority to do something, in this case dismiss an official, doesn’t mean it is an absolute power,” said Medina. “There are limitations on the discretion for executing this power.”
Such a decision cannot be made arbitrarily, but must be founded on a sufficient factual basis, he added.
This is in effect what Attorney General Gali Baharav-Miara told the government shortly after Netanyahu made his announcement, when she wrote to him saying he could not begin the dismissal procedure “until the completion of a clarification of the factual and legal basis that stands at the foundation of your decision and your ability to be involved in this issue at this time.”
The attorney general said in particular that Netanyahu may have a conflict of interest in removing Bar, a reference to the so-called Qatar-gate investigation.
At the end of February, Baharav-Miara ordered a criminal investigation into business ties between aides working for Netanyahu and the Qatari government, including Eli Feldstein, a spokesman for the prime minister who has already been charged with leaking classified IDF documents and who is alleged to have worked for Qatar via an international firm contracted by Doha to feed Israeli journalists pro-Qatar stories during the war with Hamas.
The investigation is being conducted by the police and the Shin Bet.
Although the government has broad discretion in its decision-making process regarding security issues and appointments, it is more constrained when dealing with law enforcement officials.
Since the Shin Bet has a pronounced law enforcement character due to its duties for investigating espionage, the exposure of state secrets, and political subversion, the scope of judicial review over a decision to fire the head of the service is likely greater, Medina added.
And when there is an active Shin Bet investigation into senior aides close to the prime minister, the claim that he may have a conflict of interest becomes even more acute.
Medina said it was, therefore, likely that the High Court of Justice would, if and when petitioned, insist that Netanyahu explain to the attorney general why, as he said in his announcement, he has lost faith in the Shin Bet chief, as well as explain the timing of his decision.
The court could then issue an interim injunction freezing Bar’s dismissal until the attorney general receives explanations from Netanyahu and his government as to the substantive reasons for their decision.
If the attorney general were to be satisfied with the government’s explanations, then the court would most likely not intervene further.
Only if Baharav-Miara were to reject the government’s reasoning would the High Court debate and rule on the substantive aspect of the decision to dismiss Bar.
Where does October 7 come in?
In theory, if the explanations the prime minister and the cabinet then provide are well-founded and demonstrate a good cause for firing Bar, then the High Court could allow the decision to stand.
In his Sunday night announcement, Netanyahu said in a rather opaque statement that he no longer had “trust” in Bar and indeed that he has “ongoing distrust in the head of the Shin Bet,” presumably referring to his confidence that Bar can do the job.
Netanyahu’s primary, substantive claim for firing Bar will therefore likely be the Shin Bet’s failure to warn of the impending October 7 Hamas invasion and atrocities as a key reason behind his decision to remove Bar from office.
Indeed, the Shin Bet’s own internal investigation into the events of October 7 acknowledged that it had failed in its mission to protect the country, with Bar himself saying the agency could have prevented the catastrophic assault if it had acted differently.
But using the October 7 disaster as cause to fire Bar now would leave open the question of the timing of the dismissal over 17 months after the event, especially given the Qatar-ties investigation announced just a few weeks ago.
That investigation may well give the High Court pause, since it will likely have concerns about what would appear to be the conflict of interest Netanyahu has in firing a senior law enforcement official at a time when that official is conducting an investigation into individuals with close ties to the man firing him.
But even if the High Court does have concerns over the sincerity of Netanyahu’s substantive argument, it may still decline to block his decision to fire Bar.
The court could, for example, order that the Shin Bet complete its Qatar-ties investigation before Bar’s dismissal takes effect, in order to avoid a direct clash with the prime minister while providing a solution to the conflict of interest claims.
The basic norm in a democracy is the rule of elected officials over the armed forces
None of your business
The coalition, along with conservative-minded analysts, has strongly rejected the idea that there is any need for the government to justify the use of its administrative authority to the attorney general and the court, when that power is clearly enunciated by the law.
Justice Minister Yariv Levin pointed out the plain wording of the Shin Bet law, adding late Sunday that “in case anyone has forgotten, Israel is a democracy, and everyone in it, including the attorney general, is subject to the law.” Decisions in the country needed to be made by elected officials and not the legal establishment, he declared.
Iska Bina, who heads the Movement for Governability and Democracy organization, also insisted on the authority of elected officials over agency appointments, writing on X: “The basic norm in a democracy is the rule of elected officials over the armed forces.”
For his part, Communications Minister Shlomo Karhi accused Bar of being “one of the central figures for the October 7 disaster.”
The debate over the legality of firing Bar does not, however, come to terms with the substantive concerns regarding the move itself.
The heart of the matter
Yossi Shain, a former MK for Yisrael Beytenu and a professor of political science at Tel Aviv University, said that the move to oust Bar was part of a process of “institutional erosion bordering on collapse” Israel is experiencing, in which the governing political coalition is increasingly hostile to “state institutions which act rationally and legally in service of the country.”
Shain pointed out that the current government has repeatedly attacked the legal establishment — including recently not recognizing the appointment of the new Supreme Court chief justice and seeking to oust the attorney general — as well as censuring the academic establishment and elements of the military and security establishment.
The former MK said that the October 7 failures of the Shin Bet and others in the security establishment had allowed Netanyahu to demonstrate that they have not functioned well, but said that the move to dismiss Bar was nevertheless part of the prime minister’s tactics of “dismantling institutions of state” to secure his own political position.
And Medina pointed out what would be the incongruity of Netanyahu firing the head of the Shin Bet on the grounds of his failures over the October 7 catastrophe while refusing to take responsibility himself or allow for his role in it to be scrutinized.
You can’t impose liability on office holders and at the same time not have a full investigation
“You can’t impose liability on officeholders and at the same time not have a full investigation,” said Medina, in reference to Netanyahu’s fierce opposition to the establishment of a state commission of inquiry into the events of October 7.
For Netanyahu’s allies, however, the efforts by the legal establishment to protect Bar underline just how necessary it is to remove him.
Prof. Moshe Cohen-Eliya, a lecturer in constitutional law at the College of Law and Business noted a recent report by the i24 channel that the police and the attorney general were at odds over the Qatar-ties investigation.
The outlet reported that the head of police investigations has questioned what crime Netanyahu’s aides might be charged with since they were not formally employed by the Prime Minister’s Office, and because Qatar is not defined by Israeli law as an enemy state.
Writing on Facebook, Cohen-Eliya accused “the Israeli deep state” — in which he included “the juristocracy, the left-wing media, and the Shin Bet” — of leaking the Qatar-ties allegations to the press in order to compel an investigation and prevent Bar’s dismissal by claiming that the prime minister had a conflict of interest.
“This system blocks appointments and preserves deep state loyalists, a practice dating back decades,” alleged Cohen-Eliya.
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