State Comptroller Matanyahu Englman exceeded his authority in pursuing four of the most consequential reviews of the October 7 massacre failures, the High Court of Justice ruled Monday night.
It barred the State Comptroller’s Office from continuing to examine Israel’s Hamas policy, Gaza border defense, intelligence handling, and conduct of the political, military, and Shin Bet (Israel Security Agency) leadership during the attack.
The unanimous five-justice ruling also requires the State Comptroller’s Office to discard drafts of four other October 7 audit reports and redo the process. The State Comptroller’s Office also must give officials under investigation for potential personal findings a full opportunity to present their versions before new drafts are written.
The decision comes in the final days of Englman’s term. Attorney Michael Rabello is due to take office as state comptroller on July 4. The High Court is separately considering petitions challenging the Knesset vote in which he was elected.
The ruling does not halt the state comptroller’s broader October 7 audit project. The petitions concerned only eight of dozens of audits initiated by Englman’s office after the October 7 massacre and subsequent war, the High Court said. Reports already published, as well as other audits that were not challenged, remain unaffected.
Court draws line between audits and investigations
The four reviews that may no longer continue concerned economic warfare against terrorism, such as the policy of arrangements with Hamas in Gaza; defense of the Gaza border; the intelligence community’s and political echelon’s handling of information on Hamas’s attack plans; and the sequence of events on October 7, involving the political leadership, the IDF, and the Shin Bet.
Justice Dafna Barak-Erez, writing the main opinion, drew a line between a state audit and a commission-style investigation.
A comptroller examines public conduct against established norms of legality, proper administration, efficiency, and integrity, she wrote. An investigation, by contrast, is directed at reconstructing disputed facts and reaching conclusions about past events.
The court found that the four core audits went beyond examining whether decisions had been carried out properly. The questionnaires prepared by the State Comptroller’s Office had asked officials about the sequence of events before and during the attack, specific intelligence information, and questions of security policy and strategy, it said, adding that these questions had addressed the heart of the factual and strategic issues surrounding the October 7 massacre.
While the comptroller may audit institutions connected to security matters, his authority does not directly extend to determining the merits of foreign-policy or military strategy, particularly where there are no clear legal or administrative norms against which to measure it, the High Court said.
Justice Ofer Grosskopf agreed that the four audits should not continue, albeit for a different reason.
The comptroller could, in principle, examine the way decisions were made and implemented, including in the security sphere, he wrote. Nevertheless, continuing with the audits now would create a serious problem, because no state commission of inquiry has yet been established to examine the October 7 massacre failures, he added.
Without such a commission, it is impossible to draw a meaningful boundary between the comptroller’s work and a future inquiry into the same core issues, Grosskopf wrote, adding that it was a significant risk despite the prolonged delay in establishing an inquiry mechanism.
The ruling makes the lack of governmental action on the establishment of a state commission of inquiry more consequential. The time had long been ripe to begin investigating the October 7 massacre failures, the High Court ruled separately in April, while giving the government broad discretion over the mechanism it chose.
Four audits may continue under revised process
The government is due to update the court by Wednesday on a framework for such an investigation.
The four audits that may continue concern the government’s international communications campaign, the treatment of civilian victims’ bodies after the October 7 massacre, the approval and security preparations for the Supernova music festival, and defensive preparations for southern cities.
In those cases, the court did not find that Englman lacked authority. Rather, it said the process had been unfair, because draft reports containing potential personal findings had been prepared before the officials involved were given a full right to be heard.
Once a first draft identifies possible personal responsibility, it creates a “narrative” and a point of reference that an official will have only limited ability to alter afterward, the court said, adding that the existing drafts must therefore be shelved.
The State Comptroller’s Office must first hear from people who could be personally affected by the reports, allow them meaningful access to the relevant material, and only then prepare new drafts, the High Court ruled.
The Movement for Quality Government in Israel, which submitted a petition regarding the four draft reports, welcomed the ruling. The court had accepted its argument that senior officials cannot face personal findings before being heard, it said.
“The investigation of the greatest disaster in the state’s history must be carried out properly, thoroughly, fairly, and professionally,” the NGO said, adding that only a state commission of inquiry could conduct a comprehensive and independent examination of the failures.
In response, the State Comptroller’s Office said the need for its work had only grown since the terrorist attack, adding that no other independent body had examined the failures, and a state commission of inquiry has yet to be established.
It had published more than 40 reports, identifying failures in the political, military, and civilian systems, and it was scheduled to publish four additional reports on Tuesday, it added.
The State Comptroller’s Office said it would complete the four audits permitted to continue, including the Supernova licensing and security review, and the review of southern cities’ defenses, in accordance with the ruling.
Regarding the four core audits, the office said it would stop its work, adding that the public would remain without answers to some of the most difficult questions still surrounding the October 7 massacre failures.
In summary, the comptroller may continue examining particular institutional failures, but the wider questions of how Hamas was managed, how the Gaza border was defended, how warnings were handled, and how responsibility should be assigned across the political and security leadership now remain without a comptroller-led review.
Those questions are increasingly being referred to the government, which must now tell the High Court how it intends to investigate the disaster.