On September 6 the High Court of Justice, in a senior panel headed by the next court president Esther Hayut, along with Justices Menachem Mazuz and Noam Sohlberg, will discuss a precedent-setting petition dealing with our Holy of Holies, Israel's nuclear activity.
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In effect, the petition is requesting the imposition of the rule of law on all these activities. In other words, it is asking the High Court to order the state to "normalize" its nuclear activity by means of primary legislation, and not by dint of residual authority, a default choice that in the absence of a law leaves the legal responsibility for the issue in the hands of the government, which has been the practice since the beginning.
In an equally daring step, the High Court justice denied the state’s demand to dismiss the petition out of hand without a discussion, and agreed to hear the petitioners’ arguments. That in itself is a very strong statement. It attests to the fact that the High Court understands that the present situation is flawed and constitutes a real problem. For the first time, the state will report to the court, and will explain the most classified executive orders and internal procedures to the justices, in order to convince them that they are sufficient and that there is no need to enshrine them in primary law as well.
There is no better timing for the petition than now, in parallel to the submarines affair, even if the latter includes absolutely no criminal offense. It has been claimed that the decision-making process regarding the submarines deal was unacceptable, even corrupt, in terms of the "due process" involved in making such “strategic-existential” decisions. But apparently the root of the problem is far deeper than the lack of due process: It is not at all clear which individual or office has the proper authority to decide on “strategic-existential” questions, what the legal source of their authority is, and with what procedures they are supposed to exercise their authority. The issue of due process is only a derivative of these meta-questions.
Apparently the major dispute between Prime Minister Benjamin Netanyahu and previous Defense Minister Moshe Ya’alon was about the appropriate number of submarines Israel should have. Netanyahu, backed by an opinion issued for him by the National Security Council (and apparently by another secret agency that is subordinate to him), claimed that Israel needs eight to nine submarines, considering the anticipated existential threats.
Ya’alon, backed by an opinion of the heads of the defense establishment subordinate to him – including the Israel Defense Forces chief of staff and the head of Military Intelligence – thought that six submarines are the proper deterrent requirement in response to the projected existential threats. These threats, of course, relate to Iran, and Iran means nuclear weapons. In other words, the debate surrounding the number of submarines is in effect a debate about the size of the existential deterrent that Israel requires.
The story ended when Netanyahu dismissed Ya’alon, but presented a spin that sounded like a kind of compromise: Israel would now sign for the acquisition of three new submarines, but they would be delivered only in about a decade from now, and paid for then. Ostensibly, the decision on the acquisition of the three additional submarines is not a decision about expanding the fleet from six to nine, but rather about upgrading, since they will replace the Israel Navy’s first three submarines, and the number of submarines will remain as it was: six.
The spin assumes that the lifespan of the Dolphin submarines is about 30 years. That seems reasonable, but it is also reasonable to say that Netanyahu is building an option – contrary to the opinion of the defense establishment – of a fleet of eight to nine submarines toward the end of the next decade.
Whatever the case, this dispute brings us back to the question as to how, by whom, and with what authority are decisions on such “strategic-existential” issues made. Ya’alon and others argued that the decisions were corrupt because they violated the rules of due process, in that the defense minister and the bureaucracy subordinate to him were bypassed, and the National Security Council and another secret organization wrote opinions that were requisitioned on behalf of the prime minister.
The counter-argument is that on these “special” issues – in other words, “existential” threats and deterrence – the prime minister has always had unique personal powers. These issues are separate from other security issues, and here the prime minister has personal responsibility and authority, and a right to overrule the opinion of the defense establishment.
So who is right? It’s hard to decide: There are opinions on both sides, and all of them are backed up and explained by tradition and precedents. It’s impossible to settle the dispute by law, because there is no law that covers those special issues. Oversight and monitoring of nuclear activity is not based on law, but on tradition and the government's executive decisions.
Foreign sources claim that Israel has developed an architecture of command and control of its existential deterrence using the “double key” method. In other words, only a joint decision by two individuals – the prime minister and the defense minister – and implementation by the (civil and military) operational ranks subordinate to them, will be translated into creating facts on the ground.
Beginning in 1966, after then-Prime Minister Levi Eshkol reestablished the Israel Atomic Energy Commission, it was made subordinate to the prime minister. But the defense minister always had a say about the arrangement, because the deterrence platforms are subordinate to him.
The need to subject the nuclear kingdom to the law and to normalize it is not a matter for debate between the right and the left, nor is it a question related to the future of the territories or to identity politics – it is simply the implementation of the principle of the rule of law. The law will not prevent debates, but it will define the powers and the proper and legal procedure for making decisions on these sensitive matters.
The General Secret Services Law was passed in 2002 after over a decade of opposition, as part of the lessons learned from the Bus 300 Affair (the killing of two captured and bound Palestinian terrorists who tried to hijack the No. 300 bus on its way from Tel Aviv to Ashkelon – followed by a scandalous Shin Bet security service cover-up). Similarly, it seems that the submarines affair should be the watershed of the nuclear law.
Avner Cohen, a professor at the Middlebury Institute of International Studies in Monterey, California, and attorney Eitay Mack, together wrote the petition mentioned in this article.