Israel’s Crisis of Legitimacy Chaos follows passage of anti-judicial law

Israel faces the most severe crisis in its history.  After passing the anti-judicial law on Monday, near chaos has ensued. Israelis, who had protested the anti-democracy coup weekly for 28 weeks, now raged against Bibi Netanyahu’s government. They massed around the Knesset attempting to block MKs from entering before the vote.  They’ve withstood police water cannons and foul-smelling skunk water (normally reserved for restive Palestinian communities) fired directly at them. Police also beat protestors mercilessly. They’ve marched by the tens of thousands from Tel Aviv to Jerusalem in 100+ degree temperatures. And they watched helplessly as a settler rammed his car into a crowd of demonstrators (ironically, a tactic used by Palestinians to attack Israelis) injuring three.

In the past few days, major malls have shut down, as have hospitals. The labor federation announced a planned national general strike.  The Tel Aviv stock exchange faced a large sell-off and the shekel plunged in value.  Capital has been fleeing the country for months.  10,000 IDF reservists announced they would refuse to serve, along with 1,000 pilots.  Numerous former chiefs of staff, Mossad and Shin Bet chiefs have cast their lot with the pro-democracy camp.  The country is grinding to a halt.

What’s extraordinary is that a prime minister whose brand is security, would jeopardize it solely to preserve his power.  Israel’s military and security leaders have warned that this extremist government has made the country vulnerable.  Hassan Nasrallah and Ayatollah Khamenei are undoubtedly relishing the mayhem they’re watching on the TV screens.  It will embolden them in their confrontations with Israel.

The unreasonable eliminate the “reasonable doctrine”

The new law eliminates the Supreme Court’s ability to review legislation and strike it down, a feature of almost all Western democracies.  The Court has historically used what’s called the “reasonableness clause” to determine whether a law is valid.  Eliminating this power would relegate the Court to a hollow institution enforcing traffic laws and adjudicating parking tickets. But the governing coalition won’t stop there.  While the Court is already packed with right-wing justices appointed by an independent panel, the putschists want to scrap the panel and replace it with one composed largely of MKs from their own extremist ranks. The Court would replace right-wing justices, several of them settlers, with out-and-out toadies.

The Knesset vote on the judicial bill was 64-0.  The remaining 56 MKs left the chamber in protest, denying the bill any legislative legitimacy.

And this is only the start. Coming down the pike are bills permitting the prime minister to fire the attorney general and appoint a twice-convicted MK to a ministerial portfolio.  The crowning “achievement” would be legislation immunizing him from prosecution for virtually any crime.  In this case, he is on trial for four counts of bribery.  Under current law, if convicted he would be forced to resign.  The proposed bill would eliminate this provision.  Currently, directors general of ministries are appointed by the civil service.  The new “reforms” would permit ministers to hire and fire their senior civil servant.

Clash of titans: the government vs the Court

The Alliance for Good Government and leader of the Opposition, Yair Lapid, immediately filed petitions with the Court to strike down the law.  This sets up a clash of titans between the two branches of government.  The Court can strike down the law, which would create a conflict with the government. The latter will claim that the Court’s decision is null and void with the elimination of the reasonableness clause.  The Court will counter that it invalidated the law, thus it has no legitimacy.

If, on the other hand, the Court approves the legislation, it has signed its own death warrant.  I have never known any major institution which willingly gives up its standing and power.  Thus, it seems unlikely the Court will acquiesce in this judicial coup.

That being said, this Court has shown itself averse to making hard decisions on politically sensitive matters. It may direct the parties to negotiate further to find a compromise.  They have been doing so for months without success. But in this case, the justices may warn the parties that if they don’t come to agreement, then the Court will decide the matter and the loser will suffer the consequences.

If the Court invalidates the law, it will create a crisis of legitimacy.  Historically, Israel’s two major branches of government have co-existed, sometimes awkwardly, but always with a sense that they each had legitimacy within the political system.  Now, the government seeks to essentially eliminate the judiciary and rule by fiat.  In any other country, this would be called a dictatorship.  This being Israel, there will be hasbara and apologists explaining that this coup is the “voice of democracy.”

Pro-Israel stalwarts think the unthinkable

David Rothkopf, a former federal official and former managing director of Kissinger & Associates, has always been a staunch pro-Israel voice among the Beltway punditry.  Yet over the past few years, and especially the past few months, he has published jeremiads offering searing denunciations of not only the government, but of the state itself.  He published This Is the End of the U.S.-Israel ‘Special Relationship,’ yesterday in the Daily Beast.  The rage and despair is palpable:

While most of the blame for this turn of events must go to Israeli Prime Minister Benjamin Netanyahu and his extreme right-wing coalition of Jewish nationalists, some falls on America’s leaders who, to varying degrees, for years refused to acknowledge Israel’s drift toward authoritarianism or, for that matter, its serial abuses of millions of the people who lived within the borders it controlled.

…The chorus of American leaders who regularly promised Israel’s leaders we would be with them (no matter what they did) invited Netanyahu and the thugocracy he assembled around him to do their worst. The Israeli leaders knew there was no price to pay. They knew that American aid would keep on coming. They knew American leaders would apologize for or cover up their crimes, block the U.N. from taking action against them, and maintain the myth that they were democratic when becoming less and less so…

America’s leaders must recognize that the policy of biting their tongues when Israel’s government brutalizes Palestinians‚ or when it has telegraphed its coming attacks on its own democracy—has been a failure.

Stronger steps were called for earlier. Stronger steps are called for now.

Here Rothkopf takes on the Israel Lobby and its weaponization of anti-Semitism:

We must also acknowledge that part of the support for Israel was due to the political influence of its supporters among the American electorate, from Zionist Jews to evangelical Christians. Some among these supporters have been particularly effective in making any wavering of support by political leaders seem toxic. This was accomplished via multiple means, but among these were the establishment of bright red lines, such as the argument that failing to support the government of Israel’s ethno-nationalist policies was tantamount to antisemitism…

U.S. political leaders must finally tune out the specious argument that opposing the actions of a racist Israeli government contemptuous of international law and fundamental human rights is somehow antisemitic. No one is doing more damage to the legitimacy of the state of Israel than the current Israeli government. No one is a greater threat to the state of Israel than Netanyahu and his coalition.

The Biden administration too comes in for its share of criticism:

…While the Biden administration offered stronger and stronger words to warn the Israeli government away from such action [the judicial coup], no major changes were made in U.S. plans to continue to provide billions of dollars of military and other forms of aid to Israel. Promises from Netanyahu that (to Israeli observers) were clearly lies were accepted.

Rothkopf bids farewell to a bygone era of close US-Israel ties with this: “We no longer share the values we once celebrated with Israel, and that the relationship must be reassessed.”

It is a radical admission of the disintegration of a mutual understanding that underpinned the bilateral relationship for the past 75 years.  Without this foundation, both countries may flounder, not knowing where they stand or what to expect.  This vacuum may be filled with fresh air–a radical revision renouncing the past consensus, which has been marked by stagnation and failure.

A prime example of this revision is the unprecedented call by former pro-Israel diplomatic stalwarts like Daniel Kurtzer and Martin Indyk, for ending US military aid to Israel.  As recently as 2016, the Obama administration announced a ten-year $38-billion weapons deal. The president hoped this would “buy off” Netanyahu and quiet his protests against the JCPOA nuclear agreement with Iran. He was wrong, but the billions kept flowing. Now, two former US ambassadors to Israel, both key figures in the pro-Israel diplomatic corps, have renounced a central tenet of the Israel Lobby.

Rothkopf joins them declaring:

Aid to Israel cannot be a blank check. It must be driven by U.S. interests. And currently, the Netanyahu government (which also sat on the fence when the U.S. called for support in Ukraine) is not acting in those interests.

Gone are the days when a member of Congress or administration official can proudly boast there is “no daylight” between Israel and the US.  Not only is there daylight, there is a huge, potentially irreparable rift.

What is especially bracing about Rothkopf’s vision is that it encompasses not only Israel, but the Palestinians as well.  This passage implicitly envisions the possibility of a single state from the river to the sea. Such a prospect would have been unthinkable in the past:

We must also recognize that it means protecting the rights not only of Israeli Jews but of Palestinians, as well, of making democracy and the transparent rule of law available to all who live within the borders—not just of the state of Israel but of the territories over which it exerts its authority.

Finally, the author warns of global catastrophic consequences if the US acted as if nothing has happened and continued on the same course:

 …A restoration of ties [which] further debase[d] the principles on which both governments were once founded would mean something much worse than the end of an international relationship. It would mean a devastating blow to democracy and the rule of law worldwide. It would be a catastrophe for both nations and the planet.

There is a lot of wisdom to ponder in Rothkopf’s article.