Why compromise is unlikely in Israel's crisis

(JNS) — The night before Monday’s Knesset vote on the first of the government’s proposed judicial reforms, a video filmed on the escalators in Jerusalem’s central train station went viral on social media.

It showed a great tide of people holding Israeli flags going down one escalator on their way back from protesting against the reforms in Jerusalem, and a great tide of people holding Israeli flags going up the other escalator on their way back from demonstrating in support of the reforms in Tel Aviv.

What was so remarkable and moving was that people on each escalator were leaning over to shake hands with those on the other side, in recognition of the importance of putting people before a cause.

This image deeply touched many who are horrified by the chasm that has opened in Israel over the reforms. Accordingly, there’s a desperate desire for compromise. Most Israelis want to check the powers of the court and legal officials. Most of them, however, want to achieve this by consensus.

Unfortunately, there can surely be no compromise with the organizers of the anti-reform protests, because for them the real issue was never the reform itself. As was stated explicitly from the start by former Prime Minister Yair Lapid and others, the aim was to bring down Prime Minister Benjamin Netanyahu’s government.

One of the main leaders of the protests is another former prime minister, Ehud Barak. An astounding video clip has now surfaced showing Barak in March 2020 addressing Forum 555, a group of retired Israeli Air Force pilots and navigators.

Three years before judicial reform was even a twinkle in the Israeli government’s eye, Barak detailed for this group a plan for a coup d’état that would overturn the Netanyahu government and install Barak himself as prime minister.

The plan involved inciting the civilian population to revolt by falsely claiming that Israel’s democracy was in danger and bankrolling protests that would manipulate popular patriotism by such measures as the mass purchase of Israeli flags.

Such an uprising, said Barak, had to be presented to the public as a defense of democracy rather than an attempt to get rid of Netanyahu. “Democracy is a better dividing line,” he said. “Support for democracy penetrates deep into the right as well.”

He went on, “I have a friend who is a historian and who once told me: ‘Ehud, they will call on you [to lead] when dead bodies float in the Yarkon River.’ But I wish to emphasize that the bodies will not be those of workers who infiltrated from the ‘territories,’ nor those of Israeli Arabs. The bodies that float will be those of Jews killed by Jews.”  

You really do have to rub your eyes at this. Here was a man who formerly served as prime minster, head of military intelligence and chief of the IDF general staff urging a mass insurrection and civil war that he believed would result in Jews killing Jews—because this would bring him to power.

When challenged about the video, Barak blustered that he also said he had told his friend, “It will not happen and they will not call on me.” It was also nothing new, Barak claimed, since he had “repeated this on live broadcasts at least three times in the past.”

So, Barak now just happens to be a leader of an uprising that fits every detail of the plan that he set out three years ago to mount a coup by misleading the Israeli public and enlisting them as useful idiots. Are we really supposed to believe this is just an astonishing coincidence?

The Barak video is virtually unknown in America or Britain, where the media hasn’t reported it. For the same reason, most Americans and Britons have never read the arguments of law professors who have spelled out the absurdity and legal illiteracy of the claims made by the protesters.

In Britain and America, Diaspora Jews are lining up against the reforms and parroting the Israeli opposition, usually due to ignorance, political prejudice and the instinct to grovel to the most powerful voices in the public sphere.

In Israel, the crisis has bitterly divided families and friends, reminiscent of the terrible divisions in Britain and America over Brexit and former President Donald Trump.

In each case, the left has been intent on thwarting the democratically expressed wishes of the majority.

In Britain, the left tried to stop Brexit because it overturned the “progressive” dogma that transnational institutions and laws must take precedence over laws passed by national parliaments.

In America, the left was outraged that the “deplorables” who wanted the restoration of American national integrity and pride had elected a man who pledged to deliver on that agenda and therefore, the left believed, had no right to hold office at all.

In Israel, most opponents of the reforms don’t find it outrageous that judges can invalidate government appointments, military decisions and policies of national significance.

All they see are the “wild men” of Israel’s governing coalition. Reform opponents have a point in saying the court is the only check on government actions, which is a problem caused by Israel’s dysfunctional political system.

But at least politicians are subject to elections, while the court’s powers are unchecked. As a result, Israeli democracy has been undermined by the unbridled power of unelected and unaccountable judges.

Contrary to opponents’ claims, the reforms won’t destroy the court’s ability to hold the government to account. They will return Israel to the constitutional balance that existed between Israel’s founding in 1948 and the 1990s, when the Supreme Court began to unilaterally expand its powers.

As a result of Monday’s legislation, the judges will still be able to strike down laws and block government actions. They will simply be unable to continue using the slippery criterion of “reasonableness” that has enabled gross judicial overreach and has no basis in legal principle anywhere in the free world.

The incoherence of the opposition was illustrated by Bret Stephens in this week’s New York Times. He conceded that the reforms have merit because Israel’s “unusually powerful judiciary” has arrogated powers to itself that were never democratically given and are elsewhere considered strictly political.

Nevertheless, he wrote, this week’s reform bill was a “true disaster” for Israel. This wasn’t because it was anti-democratic. If anything, Stephens said, “it is all too democratic, at least in the purely majoritarian sense of the word.” The disaster was that the reform risked depriving the country of the “fierce loyalty of its most productive and civically engaged citizens.”

So, Stephens’s argument appeared to be that because a key section of the Israeli public has lost its mind on this issue, it is the politicians who are to blame for their reaction—above all Netanyahu, who is “trying to wangle out of his criminal indictment.”

Well, hang on. The judges presiding over Netanyahu’s trial for bribery and breach of trust themselves told prosecutors in June that the case had collapsed for lack of evidence and the trial should be stopped. Yet Attorney-General Gali Baharav-Miara let it be known that she would continue with the prosecution regardless.

This wasn’t an attorney-general exercising a check and balance on politicians. This was political vindictiveness on the part of Israel’s highest legal official.

In any meaningful democracy, Barak would be in jail for sedition. Israeli Transportation Minister Miri Regev has called for a legal investigation into Barak and Forum 555. But she sent her request to the attorney-general.

What do you think the chances are that Baharav-Miara will accede to such a request?

Quite. That’s precisely the problem the judicial reforms set out to address; and it’s precisely such an erasure of the democratic rule of law that opponents of the reforms are inescapably endorsing.