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.

By Dr. David Wurmser

Part I

Israel has had three elections within about a year and may even require a fourth. The drama surrounding this deadlock, and the chaotic mechanics of forming, or failing to form, a government is obscuring deeper trends which also affect the elections’ outcomes. These are trends in some cases which have been building for a decade or more, and some are well- known and others tediously discussed. And yet, of the numerous factors informing voting in the recent rounds of Israeli elections, one of the least discussed but most important is a debate over strategic defense concepts which have governed Israel’s security establishment for decades. And this debate has serious reverberations across the seas to our shores as well.

Israel’s strategic debate is not about the peace process. After the intense assault by the Palestinians on Israel in the terror campaign from 2001-03, Israelis stopped believing a negotiated settlement with their Palestinian neighbors was possible. In terms of domestic politics, that issue was formally retired by the unilateral withdrawal by Israel from Gaza in 2005-06, which was an admission by a center-left government at the time of the end of the possibility of a negotiated, bilateral peace agreement, known as the “Olso process.”

Moreover, polls consistently suggest a continued lack of faith in a peace process. It is true that some parties, or more accurately, some Israeli politicians and media opinion setters, out of inertia, on the left still talk about the need to avoid unilateral actions and instead opt for negotiated arrangements with the Palestinians. And yet, in terms of the narrow question of faith in a negotiated settlement, Israelis poll to the right of their actual voting patterns,
meaning some who are “right wing” on the peace process nonetheless vote for center and center-left parties. They do so precisely because they believe it is “safe” to vote leftward and that any party – regardless of its rhetoric — would be unable to successfully embark on a leftist peace process agenda again. Indeed, it was for this reason that about a half decade ago, Israel’s major left-leaning party, the Labor Party, under its leader at the time, Sheli Yehaimovich, reoriented the core message of the party away from the issue of the peace process, and more toward social issues and a reinvigorated socialist ethic (although that did not work either to gain votes).

The Trump administration’s “Deal of the Century” codifies what had long already been digested by Israelis: devise a mechanism to give other states a bridge to move beyond the Palestinian issue and reach out to Israel directly to address far broader strategic interests. Israel’s ability to transcend its unnatural state of isolation, even regionally, can no longer be held hostage to solving the Palestinian issue.
Viewing the debate through the narrow prism of the peace process, many commentators today thus conclude that there is little, if any material difference between the Likud Party and the Blue-White party since both largely dismiss the idea that there is a viable peace partner on the Palestinian side because Palestinian leaders are either unwilling to make peace (Hamas), or unable to do so since they are irrelevant (PLO).

And yet, there is a difference in terms of strategic thought between the two parties. Israelis increasingly feel their inability to suppress security challenges that often disrupt their lives is eroding. Over the last two decades, Israelis are simply losing confidence that their security establishment is effectively dealing with the threat and defeating these far inferior military forces along their southern and northern borders.

Two particular developments emphasized and exacerbated the unspoken but rising nervousness about the security establishment’s inability to maintain strategic initiative and stay ahead of the enemy: the 2006 war against Hezbollah and the series of mini-wars against Hamas starting about 2008. Israelis increasingly suspect the Israel Defense Forces (IDF) are ever more often being shown up and taken for a ride, not tactically or in terms of localized fighting ability – Israelis still hold great faith in the soldiers and their technology — but by their enemies’ ability to take and keep strategic initiative when the IDF should be able to decisively destroy them.

This perception is not alleviated by the historical memory Israelis have. For Israel’s first 40 years, it was much weaker relative to its enemies than in the last two decades. And yet, despite its weakness and the fear of great power reaction, Israel still always carried the war into the enemy’s territory and kept Israel’s homeland relatively calm, even in major war. Life in Israel was always under a shadow, but the level of violence Israelis faced in their homes and cities on a daily basis, and even in wartime itself, was not only limited, but receding with each decade. In contrast, in the last decade and a half, the hunkering down, sheltering in place, and ongoing disruption of Israeli life in major parts of the country, and the inability of the IDF to bring that to a decisive end – let alone the regional perception of failing Israeli deterrence and the resulting global erosion of the legitimacy of Israel — has gnawed away at the confidence Israelis had in their security establishment. And this is not helped by the fact that the problem is not fading, but instead is growing with each round.

Moreover, this nagging and rising suspicion of strategic inadequacy is beginning to affect
popular confidence in the IDF’s competence in dealing not only with the highly irritating and costly threats from Gaza. It is beginning to bleed their confidence in the IDF’s ability to deal with looming existential threats such as Iran, or any successor threat to Iran (like
Erdogan’s Turkey).
While dramatic in itself, and as noted while not being about the peace process, the growing discomfort was also not really about embracing more or less hardline policies on Iran, nor even about the lessons and aftermath of the unilateral withdrawal from Gaza in 2005 – although those debates also happen in Israel.

To truly understand the current debate, one has to return the days after the end of the War of Attrition (1967-1970). Although not always overtly or consciously expressed, Israeli strategic thinking in the early 1970s underwent a profound shift as new strategic concepts which had arisen in the United States seduced Israeli defense and security elites, migrated to Israel’s defense structures, and then dominated Israel’s strategic thinking.

Until 1970, Israel settled on a strategy of preemption, decisive war, and “knock-out” blows partly out of contemplation and design set by such strategic thinkers as David Ben-Gurion – who took nearly a year off in 1947 to read and study carefully the history and current state of thought regarding the concept of national strategy — and partly out of necessity. After 1970, however, Israel departed from the strategic concept which had prevailed and yielded to a
new doctrine anchored to the centrality of the US guarantee of Israel’s quantitative edge, the
guarantee of US funding to secure it.

The increased dependence on the United States after 1970 was also accompanied by exciting access to American thinkers and military strategists. Israeli military planners and strategists were now accepted in the “big leagues,” and were thus quite exposed, indeed vulnerable, to the prevailing ideas of the time.

But it was right around this time, perhaps slightly earlier, that the United States itself was embarking on a brave new world of strategic thinking. After World War II, the United States had developed a mobilized national structure defined around a twilight international struggle to frustrate a totalitarian Soviet ideology into collapse, namely containment. Containment as originally conceived did imagine victory, and while there were several quite novel and innovative aspects to this concept of strategy, in part because the threat was quite novel and innovative, but it was still grounded in traditional thinking.

Whether Carl von Clausewitz and his insights into dealing a fatal blow to the adversary’s political will by striking decisively at the point of his critical mass, or Sir Basil Henry Liddell- Hart’s indirect approach to wear down and cause a similar collapse of that point of critical mass of political will, the strategies nonetheless understood victory the same. So too the original concept of containment. The U.S. ambassador to the Soviet Union at the time, George Kennan, outlined in the secret cable, which came to be known as the “long telegram” of 1947, how a constant strategy of pressure and frustration of Soviet expansion would eventually lead to an ideological crisis. That expectation of ideological crisis offered a path to a concept of victory and the war’s end. Containment thus originally was designed to globally
hem in and constantly frustrate Soviet ambition to the point where it would lead to ideological crisis and collapse. The framers of containment understood that communism, being a historical-determinist idea firmly anchored to faith in an arc of history, could not
digest the indefinite suspension of the global revolution’s advance. Sooner or later, frustrated ambition would yield to collapsed confidence in the idea’s inevitability. While a Cold War, it was a war with a strategy toward decisive victory.

By the 1960s, the structure, while maintained, was repurposed and its foundations shifted. It became grounded to new theoretical ideas of international relations. The old structure was to be underpinned by a new idea, at the center of which was an ongoing effort to manage an
enemy’s behavior through rational incentivization. This strategy was no longer unique to our struggle with the Soviet Union; it could as easily be applied as well to a semi-literate tin-pot dictator as to a hyper-intellectualized Communist leader. It was strategy anchored to the rational actor model of economics rather than political theory, cultural knowledge, or civilizational historical analysis.

Most importantly, gone was the idea of victory. Gone was the idea shared by all strategic thinkers until then, from Clausewitz to Liddell-Hart: that wars are episodic, and they end when the adversary’s political will is broken at its most critical aspect or foundation.

But as the strategy changed to the new, economics-based theory based on the rational-actor model, so too did the objective. Moreover, the view emerged that science could be applied to international relations, and the interactions among nations could be understood as a “system,” operating with systemic rules. The idea that ideas and ideologies drove nations’ actions was challenged by the new ideas of international relations.

On top of this, a pessimism had set in about the intellectual power of American purpose and the resolve (many even questioned the dominance) of American power.

When the scientific outlook and the pessimism combined, the idea that our adversaries’ threatening ideas could be defeated yielded to a more modest and restrained outlook that our adversaries could only be managed. So, management replaced victory as the goal, and competition became perpetual rather than episodic, with a beginning and end. The purpose of war was not to defeat an enemy, but shape the rules of conflict and engagement.

And it was applied quickly to the war in Vietnam.

The malaise of the Vietnam War did little to challenge the new strategic concept. Instead, American security elites used the failure of the Vietnam war to validate the doubt they harbored to begin with over the resolve of the will of people of the United States to maintain a twilight struggle. Ironically, the failure of the Vietnam War was used to justify the
rejection of the underlying strategy which had already been abandoned before the war and validate the new theories, through which Vietnam had been fought, that were very heavily influenced by economic theory and rational-actor models of incentivization not to win, but manage the enemy’s behavior. So, despite the failure of the Vietnam War, the defense and security establishment of the United States descended deeper into transforming the containment structure in its entirety, not only in Vietnam, into a perpetual, global “conflict management” structure and commitment without a concept of victory at all. The conflict between the free world and the communist bloc was demoted from being a real, but cold war, to a competition freed of most of its moral baggage.

Along with that shift, so too shifted the role of international institutions. At first just a modernized form of the Concert of Europe – a balance of power structure anchored to the
world’s greatest powers – the body of post-World War II international institutions, foremost among them the United Nations, transformed into more of a structure of regulation and codification of the conflict management structure, acquiring ever more supranational sovereignty along the way. A referee stands above the players, and thus so too must international institutions stand above the nations.

And yet, something did not sit right in this strategy with Americans, who still saw themselves as the force of freedom and morality and capable of boundless power and grit. This limited and pessimistic vision of our power and purpose was joltingly askew with our having just landed a man on the moon. While deeply suspicious of this constant strategy and mobilization of global conflict management, Americans could still not bring themselves to reconcile with the pessimism, or “malaise” as President Carter called it, let alone retreat.
Americans still understood conflict in a traditional sense: a war ends when there is a victory, and ultimately, so too must communism be vanquished, not managed. Landing a man on the moon was a victory, not a stride in managing conflict. And then in victory we can all go home to do what free peoples do best: mind their own business and pursue their dreams.

As such, the stage was set for an American resurgence toward victory, where the underlying defense concepts shifted again: the Reagan era. But this refocused conflict with the Soviet Union was no longer moored to economic theory with its rational-actor based models of containment that had evolved in the 1950s and 1960s. America under President Reagan rejoined the twilight struggle with Russia with an aim of victory, not eternal management of conflict. His was an old America, a traditional America.

His defense department started planning force structures and tactics that drive home the point to the Soviet Union that a conflagration would be won by the West. He employed rhetoric that emphasized the West would win and communism would die. He reminded Americans what the ideas of the United States and communism were about, and that the former will prevail over the latter. He was the sheriff who walked into a saloon and
reminded himself, the outlaw and everyone present that the town was too small for both to coexist and manage their conflict.

While Reagan believed the cold war can and must be won, he understood – as did Kennan — that it will require a constant frustration of the enemy that engenders an ideological crisis and eventual collapse.

America’s security and diplomatic elite met these new Reaganesque ideas – really revived traditional ideas — with horror. The elites flung accusations of irresponsibility, sported a snarky dismissiveness of this “simplistic” and warned of the dangerous “cowboy-like
adventurism.” They joked that he could not differentiate between their sophisticated world of realism and his simplistic make-believe world of Hollywood. Especially distasteful to the security elites seemed to be the retrograde idea, beyond which they believed they had progressed, that the Cold War – or any war – could be won in decisive victory. The moniker that “military means cannot solve problems” had prevailed, but suddenly Reagan and his outsiders either did not get, or failed to heed, the memo. Simply, the entire strategic imagery of Reagan and his outsiders upturned a generation of American security and defense experts, and the institutions they built to manage conflict were repurposed to execute their outsider revolution and win a war.

Indeed, Soviet collapse and America’s victory came, exactly as Reagan had predicted, but faster than imagined even by those who crafted the strategy, in 1990.

As such, Reagan may have focused on defeating the Soviet Union, but he had also launched a war against the Washington defense, security and diplomatic establishment. Ironically, the Soviet collapse led not to humility, but only to intensified rage under which the jilted defense and security establishment elites bristled. The anger and disdain harbored among
America’s defense and security elites toward the upstart Reagan defense and security team was deep and long lasting, the reverberations of which are felt all the way into the present day.

American’s victory in the Cold War did little to change that and validate the Reagan-era defense concepts. The establishment’s elites were determined to prevail, and had the
bureaucratic and institutional power to do so. Indeed, the security and defense establishment of today in America is largely a descendent of the Kissinger-era’s, not the Reagan era’s, strategic imagery, assumptions, and concept.

In part II of this essay, we will examine how the debate in Washington over strategy played out also in Israel, and is now the backstory in current and future elections.
will likely emerge here in the United States.