The legal battle the High Court of Justice faces regarding Prime Minister Benjamin Netanyahu’s appointment of Roman Gofman as the next Mossad chief is already a high-stakes one.
But the issues at stake are deeper than they seem.
Currently, the IDF, Shin Bet, and Mossad maintain that the police under National Security Minister Itamar Ben-Gvir – which is to say, under Netanyahu’s government – can no longer be trusted to protect both the law and national security.
Police Chief Daniel Levy originally held a side position within the police, with much less responsibility, from which no one would have been considered for the role of chief in the past.
When Netanyahu appointed David Zini as head of the Shin Bet, he essentially placed an outsider into the agency and trusted that outsider to run it. Zini’s appointment also raised issues about whether his loyalty to the prime minister would override his commitment to the law.
In that case, Attorney-General Gali Baharav-Miara defended Zini’s appointment, despite many former Shin Bet chiefs opposing it.
Other outsiders were appointed in the IDF, such as the head of COGAT. As a result, some have accused these appointments of being tied to loyalty to Netanyahu rather than to the individual’s qualifications.
Netanyahu, via Defense Minister Israel Katz, has blocked IDF Chief of Staff Lt.-Gen. Eyal Zamir from appointing a new IDF chief defense attache liaison to the US, because Zamir refused to promote to the post a lower-ranking candidate whom Katz and Netanyahu wanted.
Current battle over Gofman's Mossad appointment
This is the context of the current fight over Gofman’s appointment.
As with Zini, Gofman is a decorated IDF major general, a member of the IDF high command. Fifteen years ago, there was a Mossad chief with such a background.
But since then – and for most of the Mossad’s recent decades – Mossad heads all came from within the organization, due in part to the required skill set being so specialized.
To say it bluntly: can Gofman be trusted with running a global ring of spies when he has no experience in doing so?
As with all of the aforementioned figures, there are questions about Gofman being too loyal to Netanyahu. Then there’s the question of his ethics because of a scandal, in which a 17-year-old Israeli was held by the Shin Bet and under house arrest because either Gofman or Gofman’s subordinate did not tell the agency that Ori Elmakayes was working for them.
How Elmakayes’s situation was handled led outgoing Mossad chief David Barnea to take the unprecedented step of publicly opposing his successor’s appointment. Barnea implied that Gofman may cut future Mossad spies loose as he allegedly did with Elmakayes.
The legal establishment, as well as Baharav-Miara and Barnea, all hoped that the High Court would intervene to block Gofman’s appointment.
Three justices – Daphna Barak-Erez, Ofer Groskopf, and Alex Stein – made it crystal clear on Tuesday that they intend to stay out of this battle.
Their reasons for doing so are numerous.
Although the three justices opposed Gofman’s appointment, Zamir and the official vetting committee (by a split vote) supported it.
According to comments by all three justices, especially Groskopf and Stein, the evidence available does not prove that Gofman knew everything that was happening with Elmakayes.
Rather, the evidence proves that, at minimum, one of Gofman’s subordinates, Col. Tzur, knew that Elmakayes was a minor and that his arrest was related to the undercover work he was doing for the IDF.
The justices repeatedly pressed the lawyers seeking to torpedo Gofman to show evidence that he knew all of these facts, rather than the argument that he should have known them.
As Stein put it, Gofman did receive a reprimand for the incident, but was allowed to remain in line for promotion because the IDF did not deem him directly responsible for what happened. This, Stein says, is why the IDF does not see this as a deeper ethical issue.
Lawyers seeking to block Gofman’s appointment gave many examples of comments from Gofman or Tzur that seemingly implied that he knew far more than he admitted when probed by the IDF.
This same evidence convinced former chief justice and conservative Asher Grunis (the dissenting vote in the vetting committee) that Gofman was lying and that he shouldn’t be appointed as the next Mossad chief.
However, the current justices suggested that far more evidence would be needed to challenge the appointment.
This, in part, is due to the lack of Israeli laws regulating the appointment of the Mossad chief.
Unlike the police, IDF, and Shin Bet, the Mossad does its work entirely in the shadows. The Mossad mainly works overseas, carrying out espionage that their host countries would undoubtedly view as illegal. Until now, it was preferable to keep them off the books.
The lawyers trying to stop Gofman’s appointment said that the absence of regulations made it essential for the head of the Mossad to have an impeccable record.
In a politically calmer period, Gofman would likely win on this issue because the courts have little power to intervene. The charges against Gofman may not be the smoking gun his detractors are looking for, either.
However, the current political period is a tumultuous one, particularly for the judiciary. As such, the likelihood that the courts would intervene on a national security issue going to the heart of the prime minister’s power was very low.
The court is currently trying to hold the line on getting judges appointed, on integrating haredim (ultra-Orthodox) into the IDF, and on its general authority to review government decisions.
In contrast, Netanyahu is the sole authority who can appoint the director of the Mossad.
Gofman may be qualified. He may even turn out to be a great Mossad chief, like his predecessor, Meir Dagan, who came to the spy agency from the IDF in 2002.
But that still doesn’t reach the heart of the issue. What does it say when Israel’s prime minister can appoint outsiders that agency officials so loudly oppose? Notably, their oppositions come after a history of nonintervention, even when some outgoing and incoming chiefs disliked each other.
Some will say that it’s important to disrupt existing agencies to clean house after October 7.
There are two problems with this argument. Firstly, the Mossad had nothing to do with October 7, which explains why Netanyahu allowed Barnea to serve out his full five-year term.
Secondly, many of the same IDF and Shin Bet officials who failed on October 7 managed to run the table on Hamas, Hezbollah, Iran, and Syria.
That is not to say that top officials did not need to resign. Notably, the IDF chief, Shin Bet chief, and IDF intelligence chief all resigned after October 7.
But it exposes the idea of needing to clean house as more of a populist and political argument.
Here is the real question: if Gofman is appointed, should a future Knesset pass clearer regulations to make it harder to politicize future appointments of defense establishment officials?
Even if the current candidates are qualified, failure to do so could seriously undermine national security in the long term.