By Dr. David Wurmser

August 26, 2020

Just about every article written reacting to the move toward full peace between Israel and the UAE discusses the potential for a sale of the F-35 stealth fighters – an aircraft that is considered to be generations ahead of any other — to the UAE. And almost immediately, the prospect of this sale raises eyebrows in terms of America’s commitment to maintaining Israel’s qualitative military edge (QME). Almost every article discussing this refers to the emergence of the QME as a foundation of the United States’ commitment to Israel’s security born of the bitter, and dangerously close to fatal, experience of the 1973 war. There were several facets to it, but the most prominent described are that the shock sustained by the Israel Defense Forces (IDF) showed that Israel’s ability to defend itself, given its striking numerical inferiority, depended entirely on the most advanced weaponry. Since the Soviet bloc was selling Israel’s adversaries its most advanced weaponry, it was imperative that the United States, as part of its own reputation in the Cold War, supply Israel with its needs.

This is a strong argument, but unfortunately, the QME did not come about as a result of the Yom Kippur war. One has to travel back another three years to August 1970, to the end of the war generally unknown to all but students of Israeli history and those of us old enough to remember: the War of Attrition. In so correcting the historical record, the QME acquires quite a different flavor and rationale.

Following the Six Days War in 1967, after a stunning Israeli victory over all her neighbors and then some, many – especially in the Israeli government — expected a phone call any minute from Cairo, Damascus and Amman suing for peace. It was not to be. Instead, the Arab world met in Khartoum and on September 1, 1967, issued their famous three “nos:” no peace with Israel, no recognition of Israel, and no talks with Israel. A constant border war of attrition on both the northern border with Syria along the Bashan mountain ridges of the Golan Heights, and the southern border with Egypt along the Suez Canal followed. This unrecognized “War of Attrition,” as it came to be more commonly known, lasted almost three years, and was one of Israel’s most costly.

While the war was started by Egypt, Israel used the war to overcome a key conundrum: it had limited standing forces able to hold the canal against Egypt’s large army, and thus would have to rely on mobilization. But it could not mobilize indefinitely, since reserve forces represented the bulk of Israel’s adult male population. Thus, the war of attrition launched by Egypt – instead of wearing Israel down – actually gave Israel the ability to constantly apply force to relentlessly pressure Egypt’s armed forces and force them to deploy dozens of kilometers further back. This “buffer” allowed Israel to hold the canal with few forces. Moreover, if Egypt lurched forward, it would take 72 hours to remilitarize this buffer – hence was borne the Israeli anticipation of 72-hour early warning tripwire for war, but it was based on monitoring the physical deployment of the Egyptian army rather than penetrating Egypt’s high command with spies.

When the Egypt sued for a ceasefire, Israel accepted under the expectation that the integrity of the buffer would be maintained, or the war of attrition would be resumed. And sure enough, within days, the Egyptian began moving their forces forward, and just as surely, Israel prepared to resume the War of Attrition to push them back.

But Washington had other ideas. America had just launched the “Roger’s Plan” – the peace process of that day – and believed a resumption of hostilities would derail this promising development. Washington, thus, asked for Israeli restraint. At first, Israel refused, but then Washington offered a strategic exchange to Jerusalem: abandon the preemptive option and ignore Egyptian strategic moves in exchange for an American guarantee of Israel’s military “qualitative edge” over its neighbors.

Israel agreed, and bartered its strategic freedom of maneuver and initiative in exchange for a qualitative military edge (QME) in weaponry. Egypt deployed forward, but Israel was compensated for its strategic passivity with weaponry that established so overwhelming a qualitative advantage over its adversaries, it was said, that deterrence was certain, and even if not, victory would be swift. And American aid to Israel ballooned to pay for it.

So, Israel committed the cardinal sin of strategic planning: it allowed tactics to replace strategy. It allowed intelligence to replace rather than support strategic planning, preparation, positioning, deployment and maneuver. In doing so, it set the stage for catastrophic failure. And that disaster, made inevitable by the lapse in proper strategic planning and surrender of initiative, came on October 6, 1973, when Arab armies launched the Yom Kippur War, blasted through the berms along the Suez Canal, rolled into the Sinai and punched through the Bashan Ridge onto the Golan plateau to the escarpment overlooking the Sea of Galilee.

The 1973 War, however, did not provoke reflection of the origins of the grave failure and strategic planning, and thus did not trigger therein a strategic re-evaluation. Instead, it allowed the interpretation and the war and its failure to descend into an indictment of Israel’s intelligence apparatus. In other words, the examination of the failure of the war continued to embrace the cause of the failure: namely, the reliance on intelligence to replace, rather than support strategy and an strategic posture., and the reliance on qualitative superiority of weapons over strategic imagination, planning, preparation, deployment and initiative. For the political echelon – which is ultimately the level at which strategic planning is properly conducted (since strategy is not a strictly military question) – this was a convenient dodge.

And thus, the after-action evaluation of the Yom Kippur War missed its greatest opportunity to reexamine the by-then eclipsing idea of securing deterrence via a qualitative military edge at the expense of strategic planning, preemption and freedom of strategic maneuver to tee up a decisive victory. Instead, a deadly cycle was joined. Israel depended ever more on cutting edge American arms, relied ever more on US aid to pay for it, which demanded ever more of Israel to subordinate its strategic initiative, maneuver and planning to American regional policies. This progression, in turn, would leave Israel’s will questioned, deterrence weakened and compromised – all of which invited a greater threat which demanded yet more weaponry. Almost always, those policies entailed further Israeli restraint and acquiescence to America’s attempts to downplay its closeness to Israel in order to court key Arab nations, and ultimately to pursue peace processes which exacted concessions from Israel in an attempt to reconcile the two sides of this “balancing” act. The strategic dependence of Israel on the US always guaranteed that Israel’s security establishment would support such restraint and conciliation.

It is undeniable that a certain level of technological superiority is insurmountable. When a modest-sized US military force launched a war from Kuwait in 2003 against Saddam Hussein’s much-vaunted million-man military, its technological superiority in itself became an inescapable strategic reality. And yet, that same technological superiority – which delivered total victory against Iraq within two weeks — helped little in fighting the war waged on the US in that country against the Iranian and Syrian low-tech war of subversion. Indeed, Iran failed over 8 years of war with a half-million dead to register any significant strategic victory, let alone movement, against the Iraqi military to which we laid waste in days. And yet, Iran ultimately inflicted in a much shorter period of time grave, tragic and lasting damage on the US – so much so that it has altered the way the US looks at foreign intervention. Strategic acumen vanquished technology. And what turned around the American war effort in Iraq was ultimately also learned strategic skill – easing Shiite anxiety over a sellout while turning Sunni tribes against al-Qaida’s al-Zarqawi – supported (but not replaced) by critical intelligence to help navigate properly through this strategic maneuver.

Returning to the present, the issue regarding the QME – which is a question of weapons and tactics, not strategy – should be placed in the larger strategic context. Israel should not now bind itself rigidly to this doctrine with a mixed past if it blocks Israel’s ability to take the initiative in crafting a national strategy to deal with the challenges it will face in the coming decades. Indeed, this moment is an invitation to examine for the first time since 1970 the iconic reliance on the QME over strategic imagination and preparation to the exclusion over all else in Israeli planning.

This is especially relevant in terms of the three most important geo-strategic initiatives that Israel must undertake now and for the next several years:

• ending the reign of the Ayatollahs in Iran,
• prepare regionally for the neo-Ottoman/Muslim Brotherhood Khaliphate that Erdogan is trying to construct from Morocco to India (and among Muslims everywhere), and
• act practically on the ground with energy to render irreversible Israel’s presence on the Golan and in major parts Judea and Samaria.

The latter would include stopping Palestinian construction in forbidden areas (Area C under the Oslo Accords), undermining both the Palestinian National Authority’s and Turkey’s intrusions and destructive activity on the Temple Mount, Jerusalem and even among Israel’s Arab citizens, and building of Israeli villages, towns, cities and infrastructure in critical areas of Judea and Samaria – all matters on which Israel has largely dropped the ball.

Only when one considers those three critical strategic imperatives could one then in proper strategic context consider the question of the lifespan of qualitative technological advantages the UAE would gain from an F-35, and weigh that against what one might gain by coordination with Abu Dhabi. And only then can one judge whether the sale would constitute so great a threat to the basic functioning of the Israel Defense Forces that it would become a strategic threat in itself and annul any gain there might be in enlisting the UAE’s coordination, or at least acquiescence, in strategic initiatives and alliances to address these three strategic imperatives that will affect in the long run Israel’s borders and its survival.

By Dr. David Wurmser
May 2, 2020

Israel’s courts and Israeli democracy

Several weeks ago, Yuli Edelstein, the Speaker of Israel’s Knesset (Parliament) resigned to avoid implementing an Israeli supreme court (High Court of Justice-HCJ) edict to reconvene parliament and hold a vote to oust himself. Not only did the HCJ ruling upturn delicate negotiations for a national unity government, but its interference compromised the independence of the legislative branch and escalated this particular political crisis to a crisis of governance.
Moreover, the HCJ accepted appeals by several leftist factions and organizations to consider motions early next week to annul the agreement establishing the current unity government under Likud party caretaker Prime Minister Netanyahu and the centrist Blue-White Party leader, Benny Gantz. Should it do so, it would throw Israel into a fourth round of elections and dangerously undermine the credibility of the courts.

Culture pivots away from Europe but the courts do not

The roots of this crisis are deeper and older than the current round of actions by the HCJ. The composition of the legal elites, including the community of judges, of Israel is an anachronism. In contrast to how vacancies on courts are filled in the US — either through a process of appointment by the elected strata of the state or through elections – sitting courts and dominant lawyers of Israel themselves largely dictate the process of naming judges to vacancies since its creation in 1948. As such, the legal community in Israel, especially the courts, has been an insular, closed circle since the State’s founding.

At independence, Israel was almost entirely Ashkenazi (European Jewish), aggressively secular, Kibbutz-based and strongly left-leaning. All structures of state power from independence in 1948 until the first election of a non-Labor government in 1977 maintained a political litmus test of belonging to the dominant Labor Party for appointment, and thus the upper strata of the military, academia, courts, bureaucracy, state-run industry, cultural institutions and so forth were all homogenous Labor Party stalwarts. They were Israel’s “Mayflower” elites, who claimed to have been the only ones who created the nation, and thus should rightfully rule over the state.

And yet, Israeli society and culture have advanced so far beyond that original “Mayflower” composition and political orientation. It is a country dominated now by the very populations largely disenfranchised by the early socialist state: Sephardi (oriental Jews), Russian and Ethiopian immigrants, those Jews lapsed but still respectful of religion, Jews who remained traditional and religious, settlers, liberal-nationalists and religious-nationalists. The result in terms of political shifts is dramatic. While Labor held the premiership continuously from independence until 1977, it has held the premiership only 8 of the last 43 years since. There has not been a prime minister from the Labor Party since the millennium turned and Clinton was sill president. In fact, the eclipsing force of Israel for its first three decades, the Labor Party, can alone no longer even muster the required three percent of the vote to cross the threshold to maintain any seats in the Knesset. Either a centrist, center-right or right block government has

ruled Israel since the late 1990s. Even the officer corps of Israel’s military, one of the last bastions of the old elite, has in the last two decades yielded to the bewildering medley of Israeli society and of their own ranks, and begun to more closely reflect the composition of society at large. In contrast, the ruling legal elites and courts in Israel are a holdout of an Israel transcended by an intensely dynamic society, and are thus now starkly out of alignment with the society in which they live and judge.

This disconnect is exacerbated by an accompanying shift in the fundamental concepts that inform the purpose of the court. The north star of Israeli politics – including how it views the role of the courts in government — until the early 1970s was Europe, and in particular France and the world of continental European politics in the two centuries since the French revolution.
Israel’s legal system both originally and still today looks to pattern its role and rulings to European courts, especially the Court of Justice of the European Union (CJEU) and its subordinate European Court of Justice (ECJ) and General Court (GC). Apart from a difference over whether rights are inherent and inalienable or granted by the state, European courts, led by the CJEU, believe their role is also to monitor the institutions of Europe –state and private — to ensure that they operate and implement the spirit of the European Union. They not only assume judicial review of laws to ensure they are consistent with the EU founding documents and principles, but they also stand in judgement over other state institutions as the ultimate authority of defining and ensuring their behavior accords with and advances the EU’s political program and aims. In other words, they rule foremost to enforce and ensure the political ideals of the EU.

Politically and culturally, however, Israel today is oriented far less toward Europe and more toward the United States. Israel’s politicians, justice ministers, research institutions and a growing body of legal scholars increasingly view the United States and Britain as the touchstone for understanding basic political concepts and theories, even of law. The appointment several years ago of Ayelet Shaqed (currently of the Yamina party), as the Justice Minister, both symbolized and accelerated that shift. Shaqed had written extensively on how Israel should embark on wide-ranging legal reform, and that it should look to the legal philosophy and the role of the judiciary as understood in the United States, rather than continental Europe. One of her seminal articles defining her reform effort was published in 2016 by the Hashiloach Institute, under the title “Tracks to Governance (Mesilot el Meshilut).”

The battle lines were thus drawn in Israel. On one side was a “Mayflower” continental European- oriented legal elite and a continental European-oriented leftist minority which saw the activist, program-oriented and commissar-like concept of courts as a powerful tool to steer Israeli culture to more comfortable forms. On the other was an increasingly American-oriented political and legal rebellion bolstered by its vast alignment with a dynamic Israeli society far evolved from the world of its “Mayflower” elites and the politicians championing them.

The courts, judgeships, and committees appointing judges have now become the battleground in this battle of two fundamentally different visions of the role of the judiciary, and ultimately of Israeli society.

As a result, there has been an attempt by the legal elite in Israel, along with supporters from the left side of Israel’s spectrum, to raise not only the stature, but the legal status, of the HCJ — as

their last bastion of power — to a prima inter pares, or even elevated Olympian committee overseeing all other “lesser” branches and demanding their approval for all their actions. In other words, they seek to become the Israeli chapter of the CJEU, ECJ and GC. This effort is increasingly intense in recent years for two reasons. First, the left has found itself unable to win an election enough to form a governing coalition, and thus seeks to disempower the elected branches of government at the expense of the unelected but sympathetic judicial branch. Second, the elected Israeli governments of the last decade have made judicial reform – especially the idea of opening the closed, self-preserving circle of judicial appointments – a top priority. The frustration of losing power election after election, and the despair of being challenged by reform, has made both the left and the legal elites and judges view the current situation, and especially the trendlines which hold no hope for a reversal (indeed promise only to deepen and accelerate) in stark terms with their backs against the wall.

From judicial review to the rule of judges

The HCJ chief justice from 1995-2006, Aharon Barak, is largely credited or blamed (whether you are on the left or right) with expanding the writ of the Israeli courts. Until then, Israel’s HCJ applied the “standing” test to any appeal – namely did the appealing party have a sufficient connection to the appeal or law under question, or to its consequences, that it justifies that party’s participation in the case. Barak expanded beyond the requirement of “standing” into judicial activism to do two things. First to raise the body of Basic Laws to the status of a de facto constitution, and second, to assume jurisdiction to essentially legislate over any area in which there is a gap in the basic laws. Barak’s judicial activism certainly made many in Israel nervous, but at the same time, Barak still conceived of the court in terms of validating or completing a generally-acknowledged incomplete set of founding laws. He might have also moved into judicial legislation, but limited it mostly to clear areas of vacuum.

Increasingly, however, in recent years the “judicial review” or “filling the gaps” role demanded by the HCJ under Barak has yielded to courts which act without reference to any foundational law, such as a basic law (which Israel has) or constitution (which Israel does not have), or any precedential body of laws (Israel still derives precedents from both British law and in some cases Ottoman law). Instead, courts rely increasingly on the foundation of lofty, and often outright
“invented” and almost always vague theoretical principles appropriate to their Olympian superiority. And almost always, those principles are mere cover for an attempt to rule in the spirit of, and in alignment with, the theoretical ideals and aims of the Court of Justice of the European Union (CJEU) and its accompanying EU-based courts, the ECJ and GC. In short, Israeli courts increasingly envision their mission to be to ensure Israel remains tied culturally and politically to continental Europe and the European Union.

While the Barak court used gaps to legitimize an activist judicial policy, recent behaviors by not only the HCJ, but even lower courts, are directly challenging the power of the executive agencies and legislative branch in order to raise the court system in Israel to a superior position to all other branches of government. For example, several years ago, the Israeli government came to an agreement with the natural gas producers in Israel to suspend proceedings to penalize them as a monopoly in exchange for which they would sell off part of their assets, agree to limits to export, and set a mutually agreed-upon price with the government. This was done through the Anti-

Trust Authority, namely an executive branch agency, and then voted upon by the Knesset, namely the legislative branch. A group of environmental and left-wing opponents of the agreement who wanted to obstruct Israel’s production and export of natural gas appealed to the Tel Aviv district court. The court ruled not only that the appealing parties need not demonstrate “standing” at all, but also ruled that the agreement was inappropriate since the Anti-Trust Authority cannot be considered to have statutory authority. Only a court has legal authority, and thus only a court can rule on monopolies and set prices, not the executive or legislative branches. It asserted that the Anti-Trust Authority is thus no more than an advisory body for the legal branch which alone has the power to compel, rule or set prices. In other words, this Tel Aviv Court was not ruling on natural gas per se, but on establishing not only the jurisdiction of the judicial branch, but its power over all matters in all other branches of government without reference to the Basic Law or precedent. It represented a seizure of power from a clearly defined and legally grounded executive branch authority, not an assertion of power in a vacuum or gap. In short, the Tel Aviv Circuit Court envisioned its mission and authority as the Israeli parallel of the ECJ, whose writ is to ensure all state institutions operate in the spirit of the ideal of the EU.

This sense of superiority over all other branches of government has led Israeli courts to expand their authority to the point at which they feel it is appropriate to intervene whenever they believe the electorate, the legislative branch, or executive agencies fail to live up to a set of ad hoc, often invented, concepts of “democracy” or “efficiency.”

In other words, the courts have expanded their power and established their superiority in order to postion themselves as the mechanism of validating and legislating their vision of culture and politics, let alone policy. They have become the self-appointed (and continuously self-
appointing) “adults” standing over all facets of Israeli society and judging its desirability and appropriateness – which is precisely why the courts have become so important for Israel’s left. Just as the courts’ and legal elites’ composition has increasingly become unaligned with Israel culture, society and politics, so too has Israel’s left been losing out politically and culturally in otherwise permanent structural ways. Increasingly unaligned with broader Israeli society, the left and judicial elites are equally aligned with each other.

This was not lost on centrist and right-leaning Israeli politicians. One of the most important efforts of the last half decade were the judicial reforms championed by the Justice Minister of the previous government, Ayelet Shaqed. At the center of her efforts at reform were to break the closed circle of judicial appointments – thus attempting to align the judicial branch and the legal elites more closely with the flavor of Israeli society. She not only opened up appointments to a far broader cross section of lawyers representing all the hitherto disenfranchised communities in the highest rungs of the legal structures, but also changed the appointment process from one allowing the current elites and judges to dominate the choosing of their successors to a committee drawn from the democratically elected stratum of government and committee members from a wide spectrum of Israeli society. For Israel’s “Mayflower” legal elites and their allies on the left, this crossed the Rubicon. They saw themselves at war for survival against the emerging culture, its political champions and the legal rebellion waged. In that war, who rules Israel (and thus appoints its judges) became the bottom line of survival.

The rule of judges triggers a government crisis

In response, the current HCJ under the chief justice, Esther Hayut, has taken the concept of judicial supremacy to the highest level, and is maneuvering the court into the hazardous terrain of deciding “who rules Israel” to the very top.

The last month has revealed the extent of the problem. Acting on behalf of the factions in parliament seeking to undermine the national unity negotiations, she jettisoned legislative independence and authority and executive agency statutes and traditions, and applied vague and unknown legal principles, such as “efficiency of the court” and “essence of democracy.”

The “efficiency of the court” concept was evoked to deny a motion on Monday (April 27) by coalitional lawyers to have two or three days’ time to formulate their answers to the appeals and formally submit them, given that Tuesday and Wednesday were national holidays. Instead, she decided, the HCJ itself will gather internal discussions, initial responses and statements made hitherto, and rule that they constitute for the defense what their defending arguments will be so that the hearing can proceed for Sunday (May 3) without delay. In other words, the HCJ assumed the rights traditionally left for the defense on how they will argue their defense, and did so not through law or precedent, but some murky legal principle of efficiency.

The latter concept, the “essence of democracy,” was used to justify ordering the abandonment of tradition and rules of the Knesset to force Yuli Edelstein to convene parliament and hold a vote to terminate his own speakership, even though this violated all precedents and traditions, as well as compromised the ability of the legislative branch to set, or in this case preserve, its own internal rules, ways and means. What was even more disturbing was the political undertone of the ruling: its ruling at the behest of an appeal by the opposition party faction (Yesh Atid) to force the Knesset to act in a way that would have sabotaged the unity talks – namely it interfered in the final phase of the election cycle (coalitional negotiations to from a government) to achieve a political, not legal, result. It was this violation of the legislative branch’s independence which led Yuli Edelstein – a human rights activist who earlier had been imprisoned in the Soviet Union for his advocacy of freedom — to submit his resignation in protest.

Which brings us to the current appeals and the crisis they threaten, starting on May 3.

The coming showdown

Early next week, the supreme court will rule on three separate aspects which could unravel the unity government. The first is whether a prime minister can be appointed or continue to rule while under indictment. Israel’s basic law says he can. Some on the left argue that this does not apply to an interim government – although the Basic Law states that an interim caretaker government (one that rules between when Parliament dissolves until a new coalition is agreed and a new government sworn in) has all the rights and responsibilities of a regular government. Of course, this is at any rate irrelevant (or at least should be) in terms of the new unity government, since it represents precisely the termination of an interim caretaker government and its replacement with a permanent one. The attorney general of Israel, who is not considered sympathetic to Prime Minister Netanyahu (he issued the indictment against him, in fact), has

already issued his opinion that under both Israel’s Basic law and the precedent of British Law, an indictment does not justify preventing the appointment of a prime minister either as an interim caretaker or permanent since he must be allowed the presumption of innocence. At any rate, in an outright attempt to both legislate and undermine the existing and clearly written terms of the Basic Law, the appeals on this issue seek to use the courts to change the Basic Law in direct opposition to its current terms or spirit.

The second cluster of appeals argue that the terms of the coalition agreement must be annulled since they would involve changes to existing legislation, and that can be done only by the Knesset. The lawyers for the unity coalitional government argue that the Knesset vote to accept the national unity government – which is considered an act of legislation – supercedes the laws it might contradict and thus becomes the new law, as would any other legislation. In contrast, the appeals by the left to the HCJ assert that those laws must have been changed prior to the agreement’s having been reached, since the agreement thus would have been signed that includes binding provisions at variance with Israeli law. As such, they argue, the law cannot really even be brought to a vote since it is not consistent with current law.

The third cluster may not be major enough to derail the agreement to form a national unity government, but it could seriously complicate its terms enough to threaten its having to be reopened. It involves a finance issue and is intricate enough to rise to the level of Talmudic discussion.

The Blue-White party was an amalgam of three parties: the Yesh Atid party under Yair Lapid, the Telem Party under Moshe Yaalon, and the Hosen party under Benjamin Gantz, which held the lion’s share of the Blue-White list. As the national unity talks culminated and an agreement
was signed, the Yesh Atid and Telem parties refused to join, and the Blue-White Party split, with Gantz’s faction being able to retain the name of the umbrella party (Blue White). Two other Knesset members, Yoaz Handel and Tzvi Hauser, broke with their mother party, Telem, and voted with Gantz to establish the national unity government. To do so, they formed a new faction within the Blue White party, called Derekh Eretz (a play on words meaning both
“respect” or “the path of the country”), as part of the truncated Blue-White party. The Telem party, however, refuses to allow the Knesset to pay and support the new Derekh Eretz faction, or to allow the Blue-White party to assume the Knesset disbursement, instead claiming that the two Knesset seats still must be calculated as part of the Telem party from which they split. In short, Telem and Yesh Atid receive payments for two more Knesset seats than they have, and Blue- White party is paid two less seats than it holds. To note, Tzvi Hauser is one of only two appointments to critical positions named in particular in the coalition agreement. Passage 26 names him to become the chairman of the powerful Knesset Foreign and Defense Policy Committee, as well as the Blue-White representative to the powerful Committee to Appoint Judges, so this payment issue is really a back-door attempt to gut several critical passages of the coalitional agreement (those dealing with the formation of the Knesset defense and Foreign Affairs Committee and the Committee to Appoint Judges) which refer to Hauser. To overcome this problem, the Knesset voted to pay separately for the Derekh Eretz faction consistent with all other factions while still paying the Telem faction for the two seats it actually does not hold. In short, the parliament is funding 122 of its 120 seats. The left has submitted an appeal to the HCJ demanding the court annul it and strip Derekh Eretz of funding.

Given how important the Committee to Appoint Judges is to the entire judicial reform process, one can understand how important the preservation of Clause 26 of the unity government agreement, which names Hauser as the Blue-White party representative to the committee, is.
Which is precisely why the opponents have zeroed in on this in several of their appeals.

At this writing, it is unclear whether the HCJ will rule against the unity government in part, all or none of the appeals.

Conclusion

Israel is not alone in having faced such crises early in its life. The United States was less than a decade old when the lack of clarity of the Constitution in defining the power and role of the US Supreme Court — came to the fore. In 1789, precisely because the Constitution only set up the Supreme Court and limited its power as a court of original jurisdiction but was rather vague on the power of the rest of the nations’ courts, Congress passed a law vastly empowering the Supreme Court. A decade later, a Constitutional crisis emerged between President-elect Jefferson and his Secretary of State James Madison on one side, and the outgoing president John Adams and a court appointee he named, William Marbury on the other. The exact nature of the conflict is not important here but suffice it to note that the Chief Justice at the time, John Marshall, understood he was entering exceedingly dangerous terrain. If he sided with Adams and Marbury, then the incoming president would regard the court as a pawn of Adam’s Federalist party, therein severely undermining the authority and credibility of the court, perhaps even to the point where Jefferson would use the power of the presidency to impair it permanently. At the same time, buckling completely to the demands of Jefferson and Madison would expose the court as subject to political pressure, therein damning the court into constant political pressure for eternity. Justice Marshall knew the law was with Adams and Marbury, but nonetheless thread a very delicate line that ironically limited its own power to at once empower the court, establish its independence and preserve its credibility. Marshall gave and took to and from both sides. He ruled that Marbury was entitled to his commission, but that the 1789 Judicial Act overstepped the bounds of the Constitution, and that the court therefore could not be a court of original jurisdiction. In doing so, he established that the Supreme Court cannot change the will of the executive and legislative branch, but that it has the power of review of their actions. And yet, at the same time, that right of review exists only within the point of reference of the Constitution and distinctly not as an alternative legislative or superior power. Thus, paradoxically, Marshall preserved, indeed strengthened, the power of future courts by limiting the power of his own court and those that follow.

A century and a half later, one of the greatest legal minds ever in the United States, Judge Learned Hand, nailed down the issue even more precisely and overtly. He argued that not only is the US Congress’s legislation a reflection of the democratic will of the people, but that the US Constitution is itself legislation, and thus a manifestation of will of the people. Judicial review and overturning legislation, is therefore a serious affair – since it is by its nature an act contradicting the democratic will – and can only be done in strict reference to the founding act of democratic will, the US Constitution. One cannot at the same time undermine the democratic foundation for legislation (arrogating it instead to the courts) while appealing to the democratic

sanctity of the founding legislation enshrined by the very existence of the Constitution. He wrote, thus, that a court simply cannot overrule the legislation of an elected body in anything other than an extreme circumstance. To legislate from the bench is, thus, no less than establishing the tyranny of an unelected court.

Israel is facing its Marbury moment. Like Marshall, Justice Hayut will need to limit the power of her own court to preserve its credibility and establish its defined authority going forward. She would need to take the appeals seriously enough to establish that she is not simply buckling to the pressures of the unity government, but she needs to avoid taking a political stance and siding with the left in a scheme to torpedo the unity government and force new elections, which would strip the court of credibility as neutral, therein truly undermining the rule of law.

Will she do that? Sadly, doing so would be a departure from her judicial behavior thus far. Her actions over the last week elicit concern. Moreover, in the hearing to order Speaker Edelstein to convene parliament to vote himself out of office immediately, she never crafted her ruling in legal terms, nor do the minutes of the hearing indicate any genuine discussion on her part of the legal complexities of this case. Instead, she, much like the CJEU appealed to ideals rather than law. She acted summarily in the name of “preserving the essence of democracy.” She has gone quite some distance already in recent rulings toward creating precisely the dangerous condition Judge Learned Hand warned about nearly a century ago: a tyranny of the courts.

Moreover, she is not alone. The established judges and legal elites, along with the left side of the political spectrum in Israel, have joined forces to preserve the supremacy of a bygone elite and their world view. It is a dangerous trend. But courts cannot and should not control, let alone change, cultures, and they will discredit themselves trying. Simply, courts cannot exist as powerful, credible and neutral in opposition to the culture and will of the people, let alone be able to lord over their populations while passing moral, social and political judgements against it for long.

By Dr. David Wurmser

Part II

In part I of this essay, we examined how the strategic debate in Israel no longer revolved
around the peace process, but deeper strategic questions. In turn, we examined how there was a strategic evolution in the United States from the late 1950s until the 1970s. In this second half of the essay, we will examine how this influenced Israeli strategic culture and currently affects its political debate, if even in subtle or apparently hidden ways.

Until 1967, Israel had been in its own world, impervious largely to the influences of evolving American defense imagery. It was a land on the edge, and the concept of preemption, along with the idea of war as an episode with a clear start and end in victory of one side over the other, reigned. It had little choice. War could not be ongoing and indecisive, since Israel had too few people and was too poor to maintain full mobilization for war at all times. Instead, it had to rely on mobilization – a structure inherently bounded in terms of time and exertion. Moreover, it was so weak that it knew that unless it shaped the battle from the first shot, it would lose. Together, that implied that Israel had little choice but to embrace a strategy of preemption, speed to maintain initiative, decisive battle, and victory. Israel was a free country which could rely on the agility of their commanders to make spontaneous decisions and seize opportunities as they arose. Thus, when opposed by the top down, centrally- commanded Soviet-based Arab armies, Israel’s preemption, speed and decisiveness exploited, even caused, the fog of a fast-moving chaotic war and gave Israel the advantage it needed to win.

Despite Israel’s victory in the 1967 war, it found no peace. For three years (1967-70), Israel answered Egyptian attacks along the ceasefire line and relentlessly pressured Egypt’s armed forces. Using heavy artillery and raids, Israel made life untenable for the Egyptian army
within dozens of miles from the border. Israel’s airforce, acting as advanced artillery, did the same. Israel gained strategic advantage from this constant application of force by pushing the bulk of the Egyptian army back about 40-50km from the Suez canal, namely out of artillery and anti-aircraft missile range.

The “buffer” created by this strategy shaped the battlefield decisively. To move its forces to the front line in preparation for attack, Egypt would have needed at least 72 hours of unhampered mobilization. Israel’s estimate that Egypt needs a 72-hour widow to sufficiently remilitarize the front line to contemplate launching a cross-canal attack to breach Israeli lines gave birth to the assumption in Israeli military planning that the IDF would have at least 72 hours unequivocal warning in advance of any Egyptian attack, and thus would have
ample time to mobilize its own forces and launch a preemptive attack. Hence was born the idea of 72-hour warning in Israeli planning, but it was based on monitoring the physical deployment of the Egyptian army 40-50 km back rather than more penetrating human intelligence of Egypt’s decision-making structure. The assumption underlying all the planning was that once the 40KM zone is breached, Israel would mobilize and administer a preemptive, devastating blow to Egypt’s army at its most vulnerable moment when it was
fully exposed while in transit to the front line. In other words, Israel shaped the battlefield to ensure decisive victory.

In the wake of the ceasefire, US Secretary of State William Rogers launched a peace plan, while the Egyptians almost immediately began to deploy forces — including its missile defense system — forward onto the Canal within the 40-50km buffer. When Israel warned Washington that it will resume the War of Attrition in response, Washington pressed Jerusalem to restrain itself because it feared resuming conflict would derail the Rogers peace plan. Then, when Israeli insistence intensified, Washington offered a strategic exchange to Jerusalem: abandon the preemptive option and ignore the Egyptian strategic moves in
exchange for an American guarantee of Israel’s military “qualitative edge” over its neighbors.
This qualitative edge involved several aspects:

selling Israel the most advanced aircraft which were seen as capable of defeating the anti-missile system (the F-4 Phantom) and an assortment of other military equipment;
providing Israel strategic aide both against Russia and as cover in international forums for any actions Israel would have to take to maintain that edge; and
increasing aid to help pay for the equipment.

In exchange for a qualitative edge in weaponry and US cover in international institutions, Israel agreed to surrender strategic maneuver to shape its strategic environment and instead adopted a second-strike deterrence posture. It essentially “Amercanized” Israeli strategic thinking. Given the much closer ties to the US military that resulted, Israeli defense planners increasingly dabbled in the emerging adjustments to U.S. deterrence theory, such as the import from economics of the concept of incrementalism, during the Vietnam war.

Eventually, the idea prevailed and defined the entirety of Israeli defense doctrine among its security elites that overwhelming military power – and its offspring, the “qualitative military edge” — itself establishes deterrence. Behind it was the assumption that capability demonstrated will.

Ultimately once having embraced a second-strike deterrent concept, Israel’s security establishment and elites adopted the whole panoply of security concepts and absorbed the strategic culture dominating Western strategic thinking at the time. The era of containment
and deterrence to shape an enemy’s behavior had dawned, and the age of decisive victory in battles toward a decisive victory in war was retired.

In terms of large-scale war, since 1970, the idea of securing deterrence via a qualitative military edge with US weaponry and US strategic cover at the expense of decisive action to achieve victory, preemption and freedom of strategic maneuver has governed Israeli defense doctrine, and almost all flag rank officers in Israel’s military see this as a sine qua non of Israel’s existence. While arguably this doctrine failed catastrophically in the 1973 Yom Kippur War, it only deepened as a result of that war given the increased dependence on US
weaponry and need for cover against Russian aggressiveness in the region and Arab actions at the UN.

Perhaps influenced by the debates in the United States and the rise of the strategic
“outsiders” under President Reagan, for one brief period Israel’s own “outsiders,” Prime Minister Menahem Begin and Defense Minister Ariel Sharon, launched the 1982 war. This war was the last gasp before its final suppression in the defense establishment of the old defense doctrine based on preemption, independent maneuver and decisive victory rather than deterrence.

As in the United States, where the victory of Reagan failed to budge the dominant elite strategic culture of Washington, the victory of the 1982 war did not lead to a reevaluation by the defense elites in Israel of their rejected doctrine, but instead led them to bristle and redouble their efforts to solidify it as the dominant paradigm. Indeed, after the 1980s, in both Israel and the United States the idea won the day and eclipsed all others that:

conflict cannot be won, but only managed by diplomacy, and that
the managing of conflict demanded international institutions serving as “referees” above the players setting the rules and parameters of behavior and the validity of certain outcomes,
conflict can be resolved not by the victory of one over another, but by negotiation (“there is no military solution to this issue was the clarion call), and addressing “root causes,” and that
the superiority of the West (or Israel) is inherently fleeting, either because it is the way of nature (Paul Kennedy; the organic decline of empires) or because the West (or Israel) is incapable of internalizing the attributes necessary to be a great power
(Kissinger’s pessimism). As such neither assuming nor acting to ensure the
perpetuation of its great power is not a firm foundation for national security. The problem is that when you dominate the policy, you own the resulting failure.
And Israel’s reliance on an evolution of U.S. deterrence theory – which came to entirely
dominate the strategic culture of Israel’s security elite – is in Israel under considerable stress. Israel has managed to deal with the Palestinian threat inconclusively and with incremental deterioration. A considerable part of its population spends a considerable part of its time in shelters, or dodging incendiary balloons, divining if there are any tunneling noises coming from below, or at least eyeing the shelters to make sure they are close. The entire country finds itself periodically – annually at least – in shelters. In the north, the distressed 2006 Hezbollah war shook the Israelis’ confidence in their defense establishment. And Israel’s policy of deferring to the US on the Iran issue spectacularly flamed out under the Obama
administration in the JCPOA, namely the “Iran deal.”

Earlier in this decade, in the wake of these stresses, the “outsider” crowd began drifting back into power advocating an older, more “Zionist” outlook on defense questions. They date to an older time, perhaps even to before Ben-Gurion (namely, to Jabotinsky’s concept of victory through the Iron Wall). For these thinkers, war needs to be more decisive and victory possible. They advocated decisive answers to Gaza, warned of American abandonment of Israel on the Iran issue, and believed in the inevitability of preemptive action against Iran.
Plans were even made, and decisions almost taken, but this was sabotaged when Israel’s prime minister faced a “general’s revolt,” namely a situation in which the elite defense
establishment internally, domestically, and even in international structures overtly opposed the prime minister’s emerging decision to launch a preemptive attack on Iran. In the end, they even launched an external public relations and foreign diplomatic campaign to sabotage the decision if finalized.

Israel never struck Iran. Instead, it found itself shaken by a US-Iranian deal which left Israel exposed. A fundamental tenet of the post-1970 Israeli defense imagery had been shattered. The danger was laid bare behind the idea that strategic reliance on the United States was far more important than independent Israeli strategic maneuver and action. And still, Israel’s defense and security establishment sailed on, confident of their grip of defense institutions and institutes, and impervious to the growing sense of their inadequacy which Israelis held.

The defense fissures also converge with, reflect and filter through the current political divide gripping Israel, which also has many other aspects dovetailing with it in terms of “insider” or “Mayflower” elites vs “outsider” or “riff-riff” constituencies which make up the bulk of
Israel’s population right now.

At the moment, a background nervousness has arisen among Israelis because of the frustrating and inconclusive ability of the IDF to return a sense of strategic control and provide a path to victory over the much weaker foes who are increasingly able to hold life in Israel hostage periodically every few months nationally and every few days locally along the border. Currently, an overt debate on this strategic question is crowded out by the other
more visible fissures which drive the choices facing Israeli voters, but deeper down, this
unease with Israel’s defense concept has been growing steadily. Not on the level of its soldiers, but at the top, at the strategic level. Every Israeli gives the Israel Defense Forces and security establishment behind it their two most precious and personal treasures – their sense of personal security and their kids – so any erosion in the confidence of that institution’s top echelon has a profound effect on Israelis’ faith in their institutions and government, and thus influences their vote.

So slowly, the suspicions grow that many Israelis harbor that their defense elites just don’t get it. Israelis are not flocking to bookstores to pick up their copies of Liddell-Hart, Clausewitz or Sun Tzu to sort this out, but they know something is amiss in the one sector Israel cannot afford to get it wrong.

The response of the defense establishment to this growing frustration is essentially to blame the Israelis for their frustration, and those among the leaders who question them. After every round of inconclusive flare-up, the response is consistently, “we have shown the other side how strong we are. They will now be deterred. And if they forget, we will remind them of how strong we are. We are winning, and we always have the upper hand.” And the truly impressive tactics and technological advances are then highlighted to emphasize this superiority and lend Israelis a sense that maybe the IDF does indeed still have what it takes. For the defense elite, the problem is not one of needing a substantive reevaluation, but of needing a better structure of public relations and explanation. For them, the concept is not wrong, but slick “outsiders” have been simply too successful in seducing Israelis with facile answers and leading too many of them astray.

The very formation of the Blue-White Party, while an instrument politically to unify the left and center to oust Prime Minister Netanyahu, can be understood as the culmination of an initiative by Israel’s “defense elites” and their supporters over the last decade to stop the growing suspicions and preempt the rise of new defense concepts occasionally advocated not only by Prime Minister Netanyahu, but by others on the right-side of the spectrum (including Naftali Bennet and Avigdor Lieberman), to embrace a fundamental departure from the 40-50 year old defense imagery. Perhaps most disconcerting to the defense and security elite is that the new Israeli Chief of Staff, Lt.Gen. Aviv Kokhavi, a strong advocate of the idea of decisive victory and who is now beginning to reshape the entire IDF structure along his concepts. He is arming the IDF not to reestablish deterrence, but openly saying his intention is to position the IDF to win the next war speedily and decisively. He is reshaping the IDF, not only in terms of weaponry, but structure as well, more to administer a swift, lethal blow rather than a long term indecisive conflict waiting for non-military means to resolve. In other words, the new Israeli chief of staff is upturning the entire defense
establishment’s settled body of doctrine and ideas.
Since these defense elites sensed this growing anxiety of the Israeli public, but dismissed it as simply the fruits of a political attack from the right, they thus saw its resolution as political, namely by forming a counter-block based on generals, specifically Benny Gantz, Gabi Ashkenazi, and Boogie Yaalon. Allied with the owner of one of Israel’s major publications, it was not their first attempt since the earlier part of this decade to create a new party based on the defense-establishment alumni or leadership, but it was their most successful. Again, the assumption was that the problem was a failure of public relations, not substance.

The emerging tension between the political and cultural direction of Israel, and the
dominant strategic imagery still guiding Israel’s security elites, suggests it is reaching a watershed moment as it deals with its strategic challenges in the region which are increasingly distant from the Cold War and immediate post-Cold War order in which the concepts were born and the ideological nature of the common enemy both Israel and the United States faced and defined through their proxy enemies yields to a new sort of adversary.

As such, while not consciously discussed in these terms, what is really on the table in Israel in these elections is the direction of Israel’s defense imagery. And while the debate revolves mostly over frustrating conclusions to a series of conflicts for the last two decades, the roots of the debate really reach back to the immediate months after the 1967 war, and ultimately to the corridors of power in the United States. Specifically, the divide is really between the “Americanization” of Israel’s defense imagery surrounding the centrality of deterrence versus other strategic concepts, some of which preceded this “Americanization.”

In the hilltop village of Latrun in Israel, at the national armored corps museum, there is a wall of remembrance listing the names of all those from the armored corps who had fallen in combat. The names are listed in chronological order of the time of their sacrifice. When looking at the wall, one cannot help but notice that almost the entire wall were names of soldiers who died until 1982. Only the tiniest of a fraction died since.

Of those that died since 1982, while still a very small number compared to the 40s, 50s, 60s, 70s, and early 80s, one disturbing thing sticks out: they are more recent and accelerating in numbers. While imperfect, this itself could be seen as a morbid measure of the coherence and health of Israeli strategic doctrine.

As such, the way these strategic concepts will play out in Israel could be very relevant as a harbinger of a similar debate which will likely emerge here in the United States.