The extent to which Israel is ruled by unelected officials is difficult to convey to outsiders. It sounds too fantastic. So fantastic in fact, that it may be best described as “legal surrealism.”
Our rulers sound like they speak the language of politics and law, but much of what they say makes no sense at all. Consider the case of Benjamin Netanyahu’s testimony in his own trial.
Though Israel is in a state of war on several fronts, the judges presiding in that trial are forcing him to testify three days a week, every week, because, they have argued, it is “in the public interest” to bring the trial to a speedy conclusion. So, determining the exact number of cigars that Mr. Netanyahu received as gifts from friends has come to take precedence over his running of the war.
The judges know, of course, that they will pay no price for their risible definition of “the public interest,” which the public itself would undoubtedly have rejected. Because Israel’s deep state has achieved the dream of bureaucrats since the dawn of bureaucracy: the complete divorce of authority from accountability. The judges know that if their lopsided priorities hinder the war effort, it will be the prime minister, not those who coerced him, who will pay the political price.
At this late stage in the game, one may speculate that this is exactly the point of their whole exercise. Because the Netanyahu trial is not a real criminal procedure. It is a means for doing what elections could not: removing him from power. It is an arena of the struggle for supremacy between democracy on the one hand and the administrative state on the other.
The exacting schedule that the judges have imposed on the prime minister is less a reflection of any tangible public interest, and more part of a trap that our clever jurists have laid down for Netanyahu. You see, they have invented something they call “essential incapacitation.”
Contrary to the explicit meaning of incapacitation clauses in the laws of Western democracies, including those in the United States and Israel, this helpful little judicial gadget extends the idea of medical incapacitation to the realm of scheduling conflicts. According to this new abracadabra, if Netanyahu argues appearing in court three days a week impairs his ability to run the war, then the attorney general can declare him “essentially incapacitated” from preforming his duties, and thus overrule the results of a legal election.
In other words, by the mere bureaucratic breath of her mouth, Attorney General Gali Baharav Miara will remove a sitting prime minister so as to vindicate the opinion of three Tel Aviv district judges about what constitutes the public interest. If you think this is downright crazy, that may be because it is.
Since we are at war, however, it is no joke. The president of Israel, whose job is largely ceremonial, can put an end to all this charade with his power of clemency. But then he, too, belongs to the same elite who have neutered our electoral politics. So, help from Isaac Herzog’s quarters is probably not on the way.
But all this is just the tip of the iceberg. Because outside the room in which the Netanyahu trial is taking place, democracy itself has already been officially declared null and void.
Under a heavy cloud of judicial-sounding terms, Israel’s Supreme Court judges have removed sovereignty itself—that is, the power of final decision over the whole realm of law and politics—from the elected branches of government and transferred it to themselves.
The Supreme Court completed this move in the course of the war, when it exercised a new power it invented for itself: judicial review over what we have for a constitution. It is now in the position to prescribe the rules of the political game, not just its concreate results.
On the basis of what—you may ask—can judges strike down a constitutional clause? Well—abracadabra!—on the unwritten “fundamental principles of the system.”
What are these principles? It turns out you have to have special training as a judge in order to deduce them. Or, to put it another way, they are whatever the judges say they are.
Add to this the fact that the Supreme Court Judges have a de-facto veto power over the appointment of their own associates, as well as over all other appointments of judges to the lower courts, and you will see that democracy has been wholly supplemented by the tyranny of one unelected branch of government that now officially holds absolute power, against which there are neither checks nor balances by any counterforce.
It is not just unelected, though; it is also unelectable. Because the median political opinion on our Supreme Court, it seems fair to guess, is around that of Meretz—a party so woke that it did not pass the threshold for entering the Knesset in the last election.
Thus, the only remaining question about Israel’s political system is whether the Supreme Court can invent a power it cannot overrule. All other disputes seem to have been settled to the satisfaction of our judges, generals and bureaucrats.
None of this happened overnight. Like a classic Greek tragedy, it unfolded in three acts. Act I: from 1977, when the left first lost power, and up to the Netanyahu trial. Act II: from introduction to defeat of the now-defunct judicial-reform plan. And Act III: the war that began on Oct. 7, 2023. In retrospect, the end seems like it was inevitable. But it was not. It is also not really the end. Because the whole structure cannot—and will not—hold for very long.
Act I
The first time that the left lost an election in 1977, it considered its defeat a fluke. Like President Donald Trump’s victory in 2016.
But then, in 1981, like the Democrats after Trump’s 2024 victory, it realized that it may not be able to win an election again any time soon, so it came up with plan B. I know this intimately, since the beginnings of this plan were loudly discussed in my childhood living room, while my sister and I were trying to sleep.
My parents remained democrats at heart and never bought into it, but the old Jerusalem left-leaning bureaucratic elite, of which my father was a prominent member, was determined. They began to entrench the left’s power in the bureaucracy, figuring that “responsible adults” must stay in control, lest the wild, right-wing amateurs drive Israel into the abyss of fascism.
That plan met with the unbounded ambitions of one unscrupulous Supreme Court judge named Aharon Barak, whom Judge Robert Bork once called a “judicial buccaneer.”
The court cultivated allies in the other branches of government, not least the office of the State Attorney and the Attorney General (who is also the legal counsel to the executive in Israel). So that when a politician came up with an idea on how to limit the power of the judiciary and its tentacles in the executive branch, more often than not he suddenly faced criminal charges. The Supreme Court as uber-government had its own enforcers: the state prosecution was its Pretorian Guard.
Netanyahu stayed clear of that struggle, instead concentrating most of his career on the economy; on dismantling the trap of the Oslo Accords, into which the left led Israel; on terrorism in general; and on Iran in particular.
This “truce” between Netanyahu and the bench held for many years. Until Netanyahu made the fatal mistake of winning one election too many, that is.
It was 2015, and the left was at that point in despair. It was then that Israel’s leftist elites seemed to have made up their minds to weaponize the law in order to achieve what they could not win in fair and free elections. The idea was not new, but this time the press, above all, drove the effort with “investigative journalism.”
As in the case of Trump and the “Russiagate” hoax, so in the case of the Netanyahu investigations, the watchdogs of democracy, the journalists, turned out to be the attack dogs of the bureaucracy. But one must be careful not to take that metaphor too far, because it is not exactly accurate that the press became the handmaid of law-enforcement agencies. It is rather—or, at least, also—the other way around: Law enforcement became the huge investigative arm of the press. As was true of the “Russiagate” hoax, The Israel Police and State Attorney were not so much collecting evidence for a criminal trial as they were producing political dirt for leaks to the press.
The idea was to hurt the candidate in the realm of public opinion and in the polls. We now know this with near certainty, because we see what thin gruel these indictments really are. They were clearly not meant to withstand the adversarial process.
Even the judges were driven to warn the prosecution that its sole serious charge against Netanyahu—bribery—was not supported by the evidence, and that it would be better off withdrawing that particular indictment. So far, the prosecution has not heeded the advice.
Act II
After hurting Netanyahu in the polls for several election cycles, the whole affair backfired. Once the right-wing electorate realized this was an attempted coup that abused a criminal procedure, support for him resurged. What’s more, a great many on the right woke up to what was hitherto a clandestine, incremental transfer of power from politicians to bureaucrats.
Pressure thus began to mount for judicial reforms that would restore the balance of power between our branches of government. Yariv Levin, a longtime advocate of judicial reform, reached second place after Netanyahu in the Likud Party primaries. The message of the Likud base was clear.
For Netanyahu this was a serious dilemma. His trial awakened the desire for reform. But reform would easily be portrayed by his detractors as an attempt to extract him from the clutches of his legal travails (which, in reality, no reform could do, since this trial was already underway). But this was the will of his voters, and he went along with it.
Levin, who became Netanyahu’s justice minister, unfurled his reform in bullet points on Jan. 4, 2023. He explained it in greater detail on my Gatekeeper podcast (Here’s a version with English subtitles). And then, Israel as a whole was treated to an unforgettable lesson about where real power resides in the country.
It was not just the judiciary that—very inappropriately—declared war on the reform that was supposed to define the limits of its power. It was an entire social elite, which we abruptly discovered was still very much the ruling class.
Retired bureaucrats, especially from the Israel Defense Forces, Mossad and the Shin Bet (Israel Security Agency) led the protest. Senior IDF reservists in crucial posts threatened to walk out if the reform was not halted, and some of them did just that.
All were cheered on by the mainstream press. They were also subtly, but clearly, encouraged by the acting heads of the armed services, who refused to quash the mutiny. Worse still, these same chiefs of the military, intelligence services and police refused to commit publicly to obey the elected government, as the law clearly prescribes, in the event of a constitutional crisis (i.e. if the court were to strike down the reform that attempted to limit its power).
Then there was the money. Leftist NGOs funneled to the protest movement unprecedented amounts of cash (much of it from American tax dollars, as we now know, thanks to the U.S. Department of Government Efficiency).
The protesters covered huge billboards with graphic warnings of impending descent into civil war unless the “coup,” as they called the reform, was halted. The Likud-led coalition, we were told, was going to abolish democracy and replace it with a fascistic, messianic dictatorship. The police, whose brass belongs to the same elite, did nothing to quell the riots, the roadblocks and the doxing of right-wing politicians. That the Biden administration made clear it was on the protestors’ side didn’t hurt the effort, of course.
In March 2023, then-Defense Minister Yoav Gallant joined the reservists’ mutiny rather than putting a stop to it. This promptly paralyzed the reform, because the coalition wouldn’t take the risk of having the most powerful branch of the state bureaucracy, the armed forces, not obeying the elected government.
Though they probably would not have dared follow through on their threats, for a moment at that time, it seemed like they might. Hamas certainly thought that the Israeli army was falling apart.
That weapon of our aging elites–the threat to desert military duty–will probably not be used again after we all saw the steep price Israel has paid for its use.
Act III
After the Oct. 7 massacre, one would expect the bureaucracy to close ranks with the elected government and help win the war. In some ways, it did; in others, not. This isn’t surprising to those who remember where the rift started and what it was about: building an alternative to electoral politics for the left, which still believed in the so called “two-state solution.”
So, we were treated to yet another lesson about how well-synchronized the administrative state was with its allies—the protest movement, the press, leftist politicians and, crucially, the now-former Biden administration. They all rallied to the cause of preventing exactly what Netanyahu was advocating: total victory. They wanted a less-then-total-victory, or even some sort of a tie, so that both sides could be forced to accept an American imposition. For if there is one thing the left knows for certain in Israel, it is that its peace agenda can never win an Israeli election again.
All these different actors, therefore, went to work to save the two-state illusion from the blow of Oct. 7, which was poised to convince any still-wavering Israelis that there is no partner for peace on the other side.
Thus, they all went along with the American attempt to repackage the “two-state solution”—or, at least, an imagined path to it—as part of a comprehensive deal to end the war. So, once again, the plans of all these different forces converged around the goal of removing Netanyahu, instead of rallying around the cause of defeating Hamas.
The same insubordinate brass from the days of the reform was now dragging its feet in sync with the Biden administration to prevent Israel from winning too much. They resisted the invasion of Rafah; they supported a reckless hostage deal while Hezbollah was still perched on our northern border; and then they tried to stop the beeper operation (including through dangerous leaks to the press), as well as the hit on Hezbollah chief Hassan Nasrallah.
They were also clamoring for a “plan for the day after” in Gaza—a euphemism for accepting the American plan to bring the Palestinian Authority back into the Strip, thus recreating a unified Palestinian leadership that could then return to the two-state track. The brass was more attuned to the will of former Secretary of State Antony Blinken and President Joe Biden than they were to the plans of their own government.
Netanyahu could not just dismiss them. He needed them to run the war. He knew the court would side with them if he gave it an excuse to do so. He thus steered clear of anything that might turn into an inflection point.
That does not mean that his detractors have returned the favor with a truce. On the contrary, they have given succor to the new incarnation of the protest movement, now disguised as a coalition to “bring back” the hostages “now!”
New investigations against Netanyahu’s aides, some conducted by the Shin Bet have recently started. Never mind that they’re based on the flimsiest of allegations; and as we have seen, the Tel Aviv District Court is pitching in.
Most importantly, while we were all focused on Gaza, the Supreme Court drove the final nail in Israel’s democratic coffin: It struck down the only part of the reform that the Knesset dared to pass, thereby establishing its power of judicial review over the process of drafting a constitution. As a result, there is literally nothing the elected branches of government can now do that the court cannot reverse.
So far, Netanyahu—who, in addition to everything else, is recovering from a recent surgery—has managed to wage a successful war against Israel’s enemies, while Israel’s elites have been trying to use that war to topple him, even at the expense of victory.
Considering that all this was done in the face of American attempts to shut the war down without victory, this seems almost superhuman (no Israeli prime minister has withstood such American pressure for so long). How, then, was Netanyahu able to accomplish this, and to do it at the very same time that the administrative state had completed its takeover of formal power?
Epilogue
The answer to this question will also tell you why the formal victory of the administrative state is bound to be a Pyrrhic one. Because, much like Trump, Netanyahu is a modern-day “Tribune of the plebs.” He draws his power from something intangible that bureaucrats, though theoretically immune to, are nevertheless justly nervous about: popular support. And what the public in Israel now supports is clear and simple: victory over Hamas, Hezbollah and, most crucially, Iran’s nuclear program.
Netanyahu has surmounted all obstacles, because he was clear about victory all along. And if he carries the war, he will carry the day.
If, indeed, he does, a lot of things are going to change. The prospect is much more likely now that the lynchpin that held Israel’s administrative state in power is gone. The Biden administration directly subverted Israel’s democratic sovereignty and supported the rebellious administrative state in myriad ways, with both financial and political carrots, as well as outrageous sanction sticks. The Trump administration should pull the plug immediately from under all such subversive activities.
Once that is done, and if we emerge victorious, Israelis are bound to begin to understand to what extent the elites weakened our deterrence before the war and then sabotaged the war effort itself. At that point, the whole chessboard of Israeli politics will be swept away.
Because then the power of the administrative state, with its woke priorities, will be the main subject of our next election. And if there is one thing bureaucrats never want, it is to be the focus of a national election. Nothing frightens them more than “Vox populi, vox dei.”
