Mission to Israel Part III: What I Learned About The Israeli Separation of Powers

Ambition does not check ambition. Erudition checks opposition.

[This is the third post in my series on my mission to Israel. You can read Parts I and II.]

As a general matter, I am skeptical of comparative constitutional law. I think it is exceptionally difficult to master one legal system. I don't even pretend I've figured out own own laws. I barely have enough time to read all of the Supreme Court's decision. (I still need to finish Jarkesy, Corner Post, and NetChoice.) I doubt a professor could purport to be an expert of both Louisiana Civil Law and Texas Common Law, even though the states border each other! How can one person possibly become an expert in multiple legal systems from different corners of the globe, and purport to compare and contrast them? I have no clue. Maybe comparativists are simply smarter than us simple-minded schlubs who are mired in a single, provincial system of laws.

With that caveat in mind, I will describe my admittedly crude crash course into the Israeli separation of powers.

Israel has no written Constitution. Yet, it has a robust separation of powers: elite lawyers separate the power from the people. Ambition does not check ambition. Erudition checks opposition.

Let me provide a brief sketch.

Israel has a parliamentary government. A coalition that obtains a majority of the seats in the parliament can select a prime minister. The prime minister, in turn, can appoint various cabinet ministers. (I think technically the cabinet makes the appointment, but that doesn't make a difference for present purposes.) One of those ministers is the Attorney General. The Attorney General serves a fixed, six-year term. The Attorney General is entirely independent–there is no removal power. Indeed, the Attorney General can take positions that are adverse to the prime minister. And those positions are binding on the government. The prime minister has to go to court to reject the Attorney General's argument. And Israel has no standing rules, so the Attorney General, as well as outside groups, can challenge virtually any policy in court. Everything goes to the courts.

Due to the fluctuations in Israeli politics, an Attorney General appointed by a left-wing government can serve during a right-wing government. Can you imagine if Attorney General Holder served under President Trump? AG Sessions under President Biden? And, in candor, even an Attorney General appointed by a conservative government will still be the byproduct of the elite legal education system in Israeli. Conservative lawyers in Israel are a discrete and insular minority.

Here is another example. The Military Advocate General (MAG) is the equivalent of the American Judge Advocate General (JAG). The MAG is appointed by the incumbent government for a fixed term. (The duration, I was told is about five years, but the lawyers seemed a bit unsure.) The MAG is entirely independent. The Prime Minister has no at-will removal power over the chief legal advisor. Moreover, the MAG is completely outside the command structure of the military. As a result, military legal advisors officers are in no way accountable to the generals on the battle field. They answer directly to another independent official who cannot be removed, or even directed by the Prime Minister. If the government wants to take a military action, and the MAG says no,that is basically the final answer. I was told that the Prime Minister could, in theory, appeal a decision of the MAG to (wait for it), the independent Attorney General, and to the independent Supreme Court. My mouth was wide open. Again, the popularly-elected government will always be subordinate to the views of elite lawyers.

I asked a MAG captain if it would at least be theoretically possible for the Prime Minister to remove MAG. He seemed almost insulted that I would even raise this possibility. How dare anyone question his boss's independent legal judgment. He replied that the Prime Minister would have to go through the equivalent of a civil service protection proceeding. I nearly fell out of my chair. I inquired if the MAG tells the Prime Minister no often. He said it doesn't happen, as the MAG can usually negotiate the proper bounds for military action. My intuition is that the risk of hearing no serves as a chilling effect, and certain requests are simply never made. Who designed this system? Remember Israel has no Constitution. So it was developed, ad hoc, by the very lawyers who seek to retain this power.

Then there is the basis of the no answer. I remain confused by the entire nature of the Laws of Armed Conflict, and the nebulous principle of proportionality. I watched video after video of legal officers calling off air strikes because the risk of too many civilian casualties. (The Times reported that Palestinians now simply ignore warnings of where and when strikes will occur.) I inquired how any legal officer can measure the value of a target against the risk of collateral damage. Needless to say, the answer was quite subjective. But at least in Israel, insulated lawyers and not accountable politicians, make these calls. Who would you prefer making these decisions: MAG or MAGA? (Sorry, I forgot to put a trigger warning on this post.)

Another example. After the Second Intifada, Israel built a border wall to protect Israelis from terror attacks. In 2004, the International Court of Justice ruled that the border wall was illegal because international law. (Imagine if the ICJ ordered the United States not to build a wall on the Southern border!) The Israeli Supreme Court, in one of its "innovative" decisions, accepted the general premise of the ICJ's ruling, but found that the facts were slightly different, and ordered Israel to build the wall in a more restrained matter. (I am grossly summarizing a complicated decision.) As it was described to me, this opinion showed the ICJ that "adults" were in charge of Israel's border policy, so it left Israel alone after that. Here, we have a double-layer of insulation: the elite lawyers in the Hague defer to the elite lawyers on the Israel Supreme Court. The poor fools in the government can just follow orders. It is unthinkable to have to govern in this sense.

Moreover, this double-insulation provided a leading argument against the judicial reform last year (which I wrote about here). One of the proposals would have made it easier for the prime minister to appoint his preferred candidate to the Supreme Court. But if the Israeli Supreme Court was less independent, the argument went, it could no longer be trusted to take care that international law is faithfully executed. (Yes, it is the court that has this responsibility, and not the executive.) Therefore, the lawyers in the Hague would take a stronger hand against Israel. Indeed, the pending case on the West Bank territory may reflect this dynamic. Again, a country with no Constitution is constrained in reforming its courts for fear of retribution from some international tribunal in the Netherlands. Does any of this make sense?

Other proposed judicial reforms could have made it harder to prosecute Netanyahu, the incumbent prime minister. If so, under the principle of "complementarity," the International Criminal Court would have even greater power to indict Netanyahu. Israel is damned no matter what it does.

During the session, I joked that Trump v. United States, which gave Trump sweeping immunity, will one day be cited as a justification for war crime charges to be brought against Trump. Jack Smith will be firmly ensconced in the Hague to finish the prosecution he could not finish here. Inspector Javert will always get his man.

One last example. The Netanyahu government adopted a few of the legal reforms. But (shocker) the reforms that were adopted were declared unconstitutional by the Israeli Supreme Court. Yes, in a country with no Constitution, attempts to amend the so-called "basic laws" were deemed unconstitutional. An unconstitutional constitutional amendment in a country with no constitution. I'll let you figure that one out. A rule by elite lawyers indeed.

These are just a smattering of how foreign the separation of powers are in Israel. One of my repeated frustration is that the lawyers who defended this system were the primary beneficiaries of the system. They see no problem with it because they are the ones making the important decisions.

To quote President Biden, I thank the Lord Almighty that our Constitution was drafted by lawyers who understood that powers must be rigidly divided, and not placed in the hands of ruling elites. Men are not angels. We need the separation of powers.