The legal conflagration before the High Court of Justice over whether Prime Minister Benjamin Netanyahu’s appointment of Roman Gofman as the next Mossad chief can go through is already high-stakes on its face.
But the issues at stake are even larger than they seem.
Currently, the IDF, Shin Bet, and Mossad all say unequivocally that the police under Itamar Ben Gvir, which is to say under Netanyahu’s government, can no longer be trusted to protect the law and national security in all cases.
Police Chief Daniel Levy came from the police, but in a side position with much less responsibility, a role that no one would have been given the chief role in the past.
When Netanyahu appointed David Zini as Shin Bet chief, he placed an outsider in charge of the agency for the first time in many years. Zini was also an outsider, and aspects of his record raised questions about whether his loyalty to the prime minister would override his commitment to the law.
Roman Gofman, military secretary to Prime Minister Benjamin Netanyahu walking at the Knesset, the Israeli parliament in Jerusalem, November 11, 2024 (credit: CHAIM GOLDBERG/FLASH90)
In that case, Attorney-General Gali Baharav-Miara defended Zini’s appointment even though a number of former Shin Bet chiefs opposed the appointment.
There have also been recent appointments in the IDF of outsider-style officials, such as the head of COGAT, amid accusations that the decisions are more about their loyalties to Netanyahu than their qualifications.
Netanyahu, through Defense Minister Israel Katz, has even blocked IDF Chief of Staff Lt.-Gen. Eyal Zamir refused to appoint 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 and a member of the IDF high command; 15 years ago, there was a Mossad chief with such a background.
But since then, and for most of Mossad’s recent decades, the chiefs have all come from within the organization, partly because the skills required to succeed are highly specialized.
Put bluntly, can Gofman be trusted with knowing how to run a global ring of spies when he has never managed even a small ring as part of his various portfolios?
And as with all of the above-mentioned figures, there are questions about Gofman potentially being too loyal to Netanyahu, and questions about his ethics due to a scandal in which a 17-year-old Israeli was held for an extended period by the Shin Bet and under house arrest because either Gofman or Gofman’s subordinate commander did not tell the agency that 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, implying that otherwise Gofman may cut future Mossad spies loose as he allegedly did with Elmakayes.
The legal establishment, along with Baharav-Miara and Barnea, have all hoped that the High Court would intervene this time to block the appointment.
The three justices, including Daphna Barak-Erez, and especially including Ofer Groskopf and Alex Stein, made it pretty clear on Tuesday that they are searching for any reason they can find to stay out of this battle.
Their reasons are numerous.
Looking at the specific case and context, though the above figures oppose Gofman’s appointment, IDF chief Zamir and the official vetting committee (by a split vote) supported his appointment.
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 a minimum, one of Gofman’s subordinates, Col. Tzur, knew that Elmakayes was a minor and had been arrested for work which related to undercover psychological warfare activities he had undertaken for the IDF.
The justices repeatedly pressed the lawyers seeking to torpedo Gofman to show evidence that he for sure knew all of these facts, as opposed to that he should have known these facts.
As Stein put it, Gofman did receive a reprimand for the incident because it occurred within his broader command area, but was continued in the line of promotions because his level of responsibility was seen by the IDF as indirect and, therefore, not a deeper ethical issue.
Lawyers seeking to block Gofman gave a number of examples in which comments that Gofman or Tzur made, on the basis of common sense, seemed to strongly hint that he knew far more than he admitted when probed by the IDF when the incident played out in the 2020-2022 time period.
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 should not be appointed the next Mossad chief.
But the current serving justices suggested that much more unambiguous proof would be needed to challenge the appointment.
Part of the reason undoubtedly has to do with the fact that there is no Israeli law regulating the appointment of the Mossad chief.
Unlike the police, IDF, and even the Shin Bet, the Mossad serves entirely in the shadows, mostly overseas, carrying out espionage which their host countries would view as illegal if they knew about it, and at least until now, it was thought better to keep them off the books.
The lawyers trying to stop Gofman’s appointment said that the absence of any regulation made it all the more important that whoever the chief is has an unimpeachable record.
Probably, even in a politically calmer time period, Gofman would still win on this issue because there is so little authority for the courts to rely on to intervene, and because the charges against Gofman may not be a smoking gun.
Add in that this is the most politically charged time period in history for the judiciary, and the likelihood that they would intervene on a national security issue going to the heart of the prime minister’s powers was always going to be extremely low.
Currently, the court is trying to hold the line on getting judges appointed, on integrating haredim into the IDF, and on its general authority to review government decisions that are at least unpopular and look like new power grabs.
In contrast, the prime minister has sole authority to appoint the director of the Mossad based on whatever factors the premier sees fit to weigh in terms of national security.
Gofman may be qualified and may turn out to be a great Mossad chief, like Meir Dagan before him, who came to the spy agency from the IDF in 2002.
But what does it say that an Israeli prime minister can appoint outsiders to every post that the existing agency officials suddenly oppose so strongly, after never intervening before, even when some outgoing and incoming chiefs disliked each other?
Some will say disrupting the existing agencies is important to clean house after October 7.
There are two problems with this argument. First, specifically for the Mossad, it had nothing to do with October 7 – a fact which explains why Netanyahu allowed Barnea to serve out his full five-year term.
Second, many of those same IDF and Shin Bet officials who failed on October 7 then managed to run the table on Hamas, Hezbollah, Iran, and Syria.
That is not to say that top officials did not need to resign – and the IDF chief, Shin Bet chief, and IDF intelligence chief of October 7 all did resign.
But it exposes the idea of needing to clean house in a wider way as more of a populist and political argument.
The real question, assuming the High Court does not intervene, is, after Gofman is appointed, should a future Knesset pass clearer regulations to make it harder to politicize (or have the appearance of politicizing) future defense establishment appointments.
Failure to do so, even if the current candidates are qualified, could seriously undermine national security in the long term.