President Biden’s pressure and Israel’s Judiciary Reform

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Ambassador (ret.) Yoram Ettinger, “Second Thought: a US-Israel Initiative”   30.3.23

Israel’s proposed Judiciary Reform ranks very low on President Biden’s order of priorities, far below scores of pressing domestic, foreign and national security threats and challenges. Therefore, he has not studied the various articles of the reform, but leverages the explosive Israeli domestic controversy as a means to intensify pressure on Israel, in order to:

*Gradually, force Israel back to the 1967 ceasefire lines;

*End Jewish construction and proliferate Arab construction in Judea and Samaria (the West Bank);

*Advance the establishment of a Palestinian state on the mountain ridges of Judea and Samaria, which overpower the coastal sliver of pre-1967 Israel;

*Re-divide Jerusalem;

*Prevent game-changing Israeli military actions against Palestinian terrorists and Iran’s Ayatollahs.

Israel’s Judiciary Reform and US democracy

If the President and his advisors had studied the proposed reform, they would have noticed the Israeli attempt to adopt key features of the US democratic system, which would end the current situation of Israel’s Judiciary as Israel’s supreme branch of government. The reform aims to provide Israel’s Legislature and Executive branches with the effective authority (currently infringed by the Judiciary) to exercise the responsibility accorded to them by the constituency.

For example:

*Israeli Supreme Court Justices should not be appointed – as they are today – by a committee, which is controlled by Justices (who possess a veto power) and lawyers, but rather by a committee, dominated by legislators;

*The Attorney General and the Legal Advisors of Cabinet Departments should be appointed (and fired) by – and subordinated to – the Executive, not the Judiciary. Their role should be to advise, and not to approve or veto policy matters, as it is today. Their advice should not be binding, as it is today.

*Supreme Court Justices should not be empowered to overturn Basic Laws (Israel’s mini-Constitution).

*Supreme Court Justices should have a limited power to nullify and overturn legislation.

*Supreme Court Justices should decide cases according to the Basic Laws and existing legislation, and not resort to the reasonableness of the legislation (which is utterly subjective), as is the case today.

*The Supreme Court should not be able to overturn legislation by three – out of fifteen – Justices, as is the case today.

*The Supreme Court should be supreme to lower level courts, not to the Legislature and Executive, as it is today.

President Biden’s pressuring Israel

*President Biden’s pressuring Israel reflects the return of the US State Department to the center-stage of policy-making. The State Department opposed Israel’s establishment in 1948, has been a systematic critic of Israel since then, and has been consistently wrong on crucial Middle East issues.

*This pressure on Israel represents the multilateral and cosmopolitan worldview of the State Department establishment, in general, and Secretary Blinken and National Security Advisor Sullivan, in particular. This worldview espouses a common ideological and strategic denominator with the UN, International Organizations and Europe, rather than the unilateral US action of foreign policy and US national security. It examines the Middle East through Western lenses, assuming that dramatic financial and diplomatic gestures would convince Iran’s Ayatollahs and Palestinian terrorists to abandon deeply-rooted, fanatic ideologies in favor of peaceful-coexistence, enhanced standard of living and good-faith negotiation.  Middle East reality has proven such assumptions to be wrong.

*President Biden’s pressure mirrors the routine of presidential pressure on Israel since 1948 (except 2017-2020), which has always resulted in short-term tension/friction and occasional punishment, such as a suspension of delivery of military systems and not vetoing UN condemnations of Israel.

*However, since 1948, simultaneously with presidential pressure on Israel, there has been a dramatic enhancement of mutually-beneficial defense and commercial cooperation, as determined by vital US interests, recognizing Israel’s unique technological and military capabilities and growing role as a leading force and dollar multiplier for the US. Israel’s unique contribution to the US defense and aerospace industries, high tech sector, armed forces and intelligence has transcended US foreign aid to Israel, and has eclipsed US-Israel friction over less critical issues (e.g., the Palestinian issue).

*The current bilateral friction is very moderate compared to prior frictions, such as the Obama-Netanyahu tension over the 2015 nuclear accord with Iran; the US’ brutal opposition to Israel’s bombing of Iraq’s and Syria’s nuclear reactors; the US’ ferocious resentment of Israel’s application of its law to the Golan Heights; the US’ determined opposition to the reunification of Jerusalem, and the renewal of Jewish construction in Judea and Samaria, the Golan Heights and Greater Jerusalem; and the US’ strong-handed pressure for Israel to withdraw to the suicidal 1947 Partition lines; etc.

*In hindsight, the US pressure on Israel was based on erroneous assumptions, which could have undermined vital US interests, if not for Israel’s defiance of pressure.  For example, Israel’s refraining from bombing Iraq’s and Syria’s nuclear reactors in 1981 and 2007 would have confronted the US and the world at-large with a potential nuclear confrontation in 1991 and a potential Syrian nuclearized civil war since 2011.

*Rogue Middle East regimes consider US pressure on Israel as an erosion of Israel’s posture of deterrence, and therefore an inducement to the intensified threat of terrorism and war, which gravely destabilize the region and undermine US interests (while advancing the interests of China, Russia and Iran’s Ayatollahs), threatening the survival of pro-US vulnerable oil-producing Arab regimes.

*Most Israeli Prime Ministers – especially from Ben Gurion through Shamir – defied presidential pressure, which yielded short-termfriction and erosion in popularity, but accorded Israel long-term enhanced strategic respect. On a rainy day, the US prefers allies, which stand up to pressure, and are driven by clear principles and national security requirements.

*Succumbing to – and accommodating – US presidential pressure ignores precedents, overlooks Israel’s base of support in the co-equal, co-determining US Legislature, undermines Israel’s posture of deterrence, whets the appetite of anti-US and anti-Israel rogue regimes, and adds fuel to the Middle East fire at the expense of Israel’s and US’ national security and economic interests.