In many ways, the upcoming September battle before the High Court of Justice over whether to regulate the Israel Atomic Energy Commission will come down to whether Avner Cohen can reach the hearts of the justices hearing the issue.
Cohen, a nonproliferation studies professor at the Middlebury Institute of International Studies at Monterey, has been fighting a decades-long battle to create greater openness and debate regarding aspects of Israel’s nuclear program.
This issue has become all the more poignant with an ongoing public debate about the “Submarine Affair” plaguing Prime Minister Benjamin Netanyahu and multiple cases by IAEC employees hitting the labor courts this week and last week.
Still, the High Court’s September 6 hearing will be the first time in history that a judicial body will exercise broad oversight over the IAEC, with Cohen being one of leaders of the charge.
To some, he is a prophet, ahead of his time, trying to lead Israel away from treating the nuclear topic as taboo, in order to arrive at better long-term policies.
To others, he is a traitor who moved to the US and used that distance to unearth a range of Israel’s nuclear secrets which otherwise would have been kept under wraps by Israel’s censor.
Technically, he is only one of 100 petitioners, notably including the Israeli Disarmament Movement, led by Sharon Dolev, who initiated the petition; Moshe “Mossi” Raz, a former Meretz MK; and the attorney who filed the petition, Itay Mack. But Cohen is also the most famous or infamous one, for holding the banner on the issue of greater transparency regarding Israel’s nuclear policy for decades.
His original battle to get Israel to phase out its opacity, to openly acknowledge its nuclear status, Cohen has stopped fighting.
Ironically, the reasons Dolev and Cohen’s petition to the High Court may be the first real chance for a policy shift in decades is that they are asking for far less, and Cohen has become more moderate.
For example and assuming that Israel has nuclear weapons, Cohen said that “the issue for me is not disarmament.
I wanted to also have people behind it who would be apolitical” and support the petition “regardless and independently of the issue of disarmament.”
Today, Cohen in no way questions whether the Israel of 2017 should have nuclear weapons.
“That question today in some respects is inappropriate, even irrelevant. It is not on the table. Israel [reportedly] has nuclear weapons. Israel started its pursuit of nuclear weapons in the 1950s, around 10 years after the Holocaust, in the context of a small, pre-1967 borders state. It had a right and even an obligation” to do so in that particular context.
“Even if, at the time, Israel had the right and it was justified, this was prior to the emergence of the 1968 Nuclear Non-Proliferation Treaty in terms of international law, so Israel was completely free politically, legally and morally to take that kind of choice” at the time, he said.
Still, Cohen said that “maybe its obligations today are different. We live in a different world with different questions.
But today it is a fait accompli. Nobody thinks there is any chance that Israel would dismantle what it has.”
If Cohen does not dispute that Israel might possess nuclear weapons, and admits that it is practically futile to try to change its opacity policy, what is the point of the Knesset legislation and regulating the IAEC in a normative way? And where is this all coming from? If 10 or 20 years ago, there was greater global and regional pressure on Israel globally to come clean or reduce its nuclear program as part of a nuclear-free Middle East, most commentators recognize today that the pressure has ebbed.
Cohen explained: “My readiness to propose change – a law would be a change – is not because of outside pressure.
There is no pressure on Israel in this area, and the issue is not on the international agenda.”
However, “There is something anomalous from the domestic perspective.... This issue is outside of the law. I am not saying it operates illegally. There is an idea called residual jurisdiction, but essentially it is not being covered under any law. From a constitutional perspective, that is wrong.
“It is simply not right for the state to conduct its business, nuclear business included,” without a normative framework of some kind, he said.
Dolev and Cohen’s High Court petition explained that the “residual powers” principle is a sort of default case in which the government is reportedly entitled to act according to its judgment in all areas not delineated by law. Israel’s nuclear activities are in this twilight zone beyond the law, and in a few cases are even granted an exemption by the law, said the petition.
Cohen explained that David Ben-Gurion reportedly created a secretive commission in 1952, that Levi Eshkol perpetuated its secrecy with secret cabinet decisions in 1966, that a September 1969 deal between US President Richard Nixon and Golda Meir essentially codified the secrecy and Israel’s position as an purported nuclear power.
He credited Shalhevet Fryer, who ran the commission for several years in the 1970s, with moving this agreement into a permanent, multifaceted policy, including a strong censor.
Cohen pointed out that the IAEC is the most secretive of Israel’s three secret organizations – even more than the Mossad and the Shin Bet (Israel Security Agency).
“Even the Shin Bet today is covered by the 2002 Knesset law. But the entire subject area of the IAEC is totally unknown.
The website is misleading. It talks about tiny little activities, but it cannot even state the real mission.
“This is inconsistent with the principles of democracy, oversight and accountability,” he said.
One proof Cohen has brought to support the idea that Israel could maintain secrecy while having greater oversight and regulation is a study being reported on exclusively by The Jerusalem Post on Thursday simultaneous to this article. There are also specific issues that Cohen thinks the public needs to be able to debate more freely.
For example, should the Dimona reactor be shut down or fixed? If it were shut down, what would replace it and the Sorek reactor? He said that “the Dimona reactor is already barely working. The Sorek reactor is due to be replaced in the coming months.”
In April 2016 Haaretz reported that the Dimona reactor has 1,537 cracks. It has been publicly known that its original service life was supposed to be only from 1963 to 2003.
While former IAEC chairman Gideon Frank spoke in the past about ways to extend its use for 20 years by using techniques adopted from the US, even that extension would run out by 2023.
Some IAEC workers have also filed lawsuits claiming negative effects from radiation from their time working for the IAEC.
Though the High Court might normally be less excited about jumping into a gray area involving national security, the various 2016 health-hazard Dimona reports may have pushed the court to take the case.
At the same time, the High Court took seven months to decide whether to hold hearings in the case. The petition was filed in May 2016. The decision to hold hearings was not made until December 2016, and the first court date was set for September 6.
The long delay made it clear there would be no rushed decision.
Part of what disturbs Cohen is that even the most liberal critics of government policy on a range of issues stay mostly silent on transparency or regulation regarding its nuclear policy.
“Even liberal circles in Israeli society hardly even raise this issue. They accept the status quo. They talk about the occupation and call it terrible. And I agree that the occupation is terrible, but they say nothing about the nuclear issue. It is a lacuna,” he said.
If Cohen is ready to hold back on his prior push to end Israeli opacity, he said it is still important “at least to reflect and deliberate about opacity, though I am aware of the great practical difficulties with how to change it. I am not a loose cannon who says we need to admit tomorrow that we have nuclear weapons.” This is of course assuming that Israel, in fact, has nuclear capability.
Regarding the High Court proceeding, Cohen said, “I don’t expect too much, but a hearing is important and unprecedented.
It may be a first step to set things up in a regulated way, to start to relax, erode, to reduce this big taboo.
“The whole point of the High Court petition is to take on this huge taboo head on, more than 60 years after it [the capabilities] was created in 1952. The time has come to change the ground rules about how Israel does its business,” he said.
The petitioners have said that “the most hazardous industrial complex in the country operates in secrecy, without public control, oversight or... law. The present situation is dangerous.”
Former Mossad director Shabtai Shavit was the most dismissive of the concept behind the petition.
“I think when it comes to security issues, intelligence and all things that have changed to become more public hurts things. The paradigm is the nuclear issue,” where more disclosure “is only a negative,” he told the Post.
Shavit said that “there are curious people talking about the right of the public to know, the obligation to report. These are lots of good words, but they are nonsense.
“Why? Whoever needs to know, knows.
And all of those in the chain of command and decision-makers know. They are there not because of same fantasy or connections,” he said.
“They are there because they got to the top of the hierarchy, became part of a group of secret holders and they received a mandate from the country to decide. They know, and others don’t need to know,” he explained.
Energy Minister Yuval Steinitz, who also retains authority for the IAEC portfolio, took a similar if less aggressive position, telling the Post, “The IAEC, including all its facilities, is very well regulated and supervised by the government.
“Actually,” he continued, “for the first time, Prime Minister Netanyahu announced in the Knesset that I, as minister of energy, will also be in charge of, and handle, Israel atomic energy issues.
And also, there is very good supervision by the Knesset Foreign Affairs and Defense Committee.
“There is a special subcommittee that is also overseeing the IAEC. So I think that, generally speaking, it’s well regulated, and I feel quite confident about what is going on in the IAEC and also about safety of the Dimona nuclear reactor in particular, and all the facilities in general.”
Former intelligence minister Dan Meridor came to a conclusion similar to those of the above officials, though he was a bit more willing to entertain the idea.
“They are regulated and there is oversight.
I was doing it for many years, regarding which there are all sorts of details which I cannot go into,” he told the Post.
He continued that he was involved in oversight “as a member of the Knesset Foreign Affairs and Defense Committee,” though he admitted that “it [good oversight] depends on the people in oversight positions, how serious” they are. He noted that some oversight officials “study it every day and undertake visits” to the facilities more than others.
“I am not against things like that [greater regulation], but I need to see what they are really proposing. I am not worried about a lack of regulation. I think there is regulation,” Meridor said.
Regarding reports about cracks in the Dimona nuclear core, the former intelligence minister said, “I’ve been there many times. I am not worried about cracks. I’ve been there 100 times. I’ve dealt with these claims from Knesset members and the press. I was satisfied from the experts that safety is at a very high standard.
“The percentage of cancer and illness among the workers is lower than in the general public. That does not mean there are no cases to check. But the cases have been checked again and again,” responded Meridor regarding claims that low safety standards have caused dangerous illnesses among workers.
Besides the above objection, the Justice Ministry has protested against the petition, arguing that even if, in rare circumstances, the High Court can strike Knesset laws, it cannot order the Knesset to pass a law where none exists. This technical issue may be the petition’s greatest legal challenge, even as Mack provided a few counterexamples.
But regarding the broader debate over oversight, Cohen rejected the arguments that there is sufficient oversight. He said that even if much of the IAEC needs to be classified, there should be some modicum of truly public oversight, and there is none.
He reiterated that regulation does not need to threaten most aspects of the nuclear [program’s] secrecy.
“It’s definitely possible to conceive of a law without much teeth that will live peacefully with the current practice of opacity,” he said. On the other hand, “It’s also possible to think about a nuclear law that would reduce this opacity policy somewhat,” he added.
Cohen concluded that all objections to Knesset regulation of the IAEC “share the view that the here and now is the most important thing. The petition aims to challenge this view precisely. It’s an attempt to think about this forbidden matter for the long term, beyond the current status quo.
“The time has come to make a different social contract between Israel and this area of its security,” he said.Sharon Udasin contributed to this story.