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Israel's Prolonged War against Terror: From Executive Domination to Executive–Legislative Dialogue

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Abstract

Terrorism and anti-terrorist policies are not recent phenomena in Israel. The state's foundation was followed by six decades of terrorist attacks, and the responses of successive governments and the Knesset have evolved over time. Legislative oversight of the executive's anti-terrorist policies was essentially non-existent until the 1980s, almost half Israel's history. Since then, MKs have enhanced their institution's oversight capabilities, exhibiting greater effectiveness and accountability. The evidence of Israel's experience provided by this article suggests that the legislature will, in time, assert oversight powers in a protracted, low-intensity conflict. Legislative assertiveness, however, is necessarily a slow and developing process, and does not lead inevitably to a balance of power between the executive and legislature. The executive may remain dominant, but the Israeli case demonstrates that with time oversight empowerment of the legislature is possible, even in the realm of combating terrorism. The article also demonstrates the impact of other institutions, notably the judicial branch, and stresses that in any democracy engaged in a war of attrition the influence of the public cannot be ignored.
Israeli’s Prolonged War Against Terror:
From Executive Domination to Executive-Legislative Dialogue
CHEN FRIEDBERG AND REUVEN Y. HAZAN
Abstract to be inserted
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Since Israel’s establishment in 1948, it has been involved in a struggle for its security.
Alongside wars fought at least once every decade with one or more of its neighbouring Arab
states, Israel has confronted terrorism almost constantly and with greater intensity following
Israeli’s occupation of the West Bank and the Gaza Strip in the 1967 Six Day War. As a result
of that war, close to one million Palestinians were placed under direct Israeli military
occupation, and within a decade the Israeli settler movement started to expand to these areas.
In the following years, Israeli and Jewish targets in Israel and elsewhere were the aim of an
unprecedented wave of terror attacks. Embassies, the national airline, civilians and soldiers
within Israel all became targets of bombings, shootings, and kidnapping, largely perpetrated
by the PLO (Palestinian Liberation Organization). Subsequently, the late 1980s saw the
eruption of the first Palestinian intifada, largely targeted against the Israeli occupation, which
triggered an unprecedented era of violence, interrupted only briefly the signing of the Oslo
Accords in 1993. The second intifada erupted following the failed Camp David Summit in
2000, with suicide bombings becoming the weapon of choice. More recently, Hamas and
other Palestinian factions opposed to negotiating with Israel have resorted to high-trajectory
weapons aimed at Israel from the Gaza Strip, and from southern Lebanon by Hezbollah.
The Israeli state’s response to terrorism has taken military, intelligence, judicial,
legislative and financial forms, all of which have been interconnected. Our purpose is to
assess the effects of counterterrorist lawmaking and oversight of executive actions on the
balance of executive-legislative relations in the period since September 11, 2001 (for an
overall assessment of executive-legislative relations in Israel, see: Hazan 1997; Arian,
Nachmias and Amir 2002).
To understand post-9/11 executive-legislative relations in Israel, it is important first
to assess relations prior to 9/11, during Israel’s decades-long war against terrorism, starting
with the Six-Day War. The 1967 war not only changed the nature of the Palestinian-Israeli
conflict, it also transformed the character of party competition in Israel (Hazan 1998). Before
1967, party competition rested essentially on a socio-economic cleavage; after 1967, the main
dimension was defence and the future of the occupied territories (Arian and Shamir 1983).
Left versus right was transformed from an essentially socio-economic differentiation to one
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based on different (polarized) preferences along a security dimension (Ventura and Shamir
1991): the left, headed by the Labour Party, was largely perceived as dove-like, willing to
trade territories for peace with the Arab world; the right, led by Likud, was hawkish, believing
that the territories should be retained as part of Israel for historical and security reasons. At
one extreme pole of the new security dimension, the Israeli Arab parties were located,
supporting a complete withdrawal to the 1967 borders and the establishment of a Palestinian
state. At the other pole were those who wanted wholesale annexation of the occupied
territories and expulsion of the Palestinian population. Most Israelis were somewhere in
between these poles.
The range of opinion represented on the security dimension is different from that on
terrorism and related aspects (immigration, civil liberties, and the like). That is, the positions
on terrorism of the overwhelming majority of Israel’s Jewish population (approximately 80
per cent of the total), the political parties, and the members of Israel’s unicameral Knesset are
quite monochromatic. Parliamentary opposition on this issue is confined almost exclusively to
the Israeli Arab parties whose legislative participation is limited to plenary debates and
committee discussions; those parties outside the governing coalition, providing the loyal
opposition, rarely use terrorism as an issue to undermine the government. In consequence,
there is little or no legislative conflict on terrorism, in sharp contrast to conflict over issues to
do with control of the occupied territories and military security, which provide the primary
sources of political conflict in Israeli politics in general and legislative discourse in particular.
Counter-terrorist Lawmaking
Given Israel’s long history of countering terrorism, it is hardly surprising that most
antiterrorist laws predate 9/11 (Gross 2004; Hofnung 1996b; Pedahzur 2002; Perliger 2006).
Some of the most important notably, the Law and Administrative Ordinance (19 May 1948)
approved by the Provisional Council of State (Israel’s first provisional legislature) – date from
the state’s founding. Article 9 (a) and (b) allowed the Council to declare a State of Emergency
and authorised the prime minister or any other minister to make emergency regulations to
protect state and public security and maintain supplies and essential services. A State of
Emergency has remained in force until today and with it a considerable degree of executive
power that clearly infringes legal principles and human rights. According to the 1948
Prevention of Terrorism Order, for example, the government may proscribe any group of
people as a terrorist organization and thereby curtail their freedom of association, expression
and property. Similarly, the Commodities and Services (Control) Law, enacted almost a
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decade later, empowered the government to restrict freedom of employment. The effect is to
grant the Israeli government extensive powers that have little connection to state security
(Bracha 2003). Powers delegated by this law provide legal means by which ministers can
circumvent the Knesset. Indeed, on more than one occasion the Supreme Court has harshly
criticized ministers’ use of these powers, precisely because they circumvent laws passed by
the legislature, infringe the rule of law, and violate Israel’s democratic system in which states
of emergency are supposed to be temporary, not the normal state of affairs.
Israel’s particular security situation, then, clearly requires the government to possess
far-reaching emergency authority. The operative question, however, is whether legislative
safeguards are sufficiently robust to constrain the executive’s exploitation and abuse of their
extreme powers. As indicated previously, Article 9 of the 1948 Law and Administration
Ordinance placed the power to declare a State of Emergency solely in the hands of the
executive without any limitation of time and without requiring the prime minister or other
ministers to provide the Knesset with evidence justifying their decisions. And, for decades,
the Knesset did not hold the executive to account in its use of these powers. In 1992, however,
the new Basic Law: The Government limited the declaration of a State of Emergency to one
year, required evidence justifying a renewed declaration to be provided to the Knesset’s
jointly convened Foreign Affairs and Defense and Constitution, Law and Justice committees,
and placed the power to declare an emergency in the hands of the Knesset.1 The legislation
also empowered the Knesset to revoke any State of Emergency (Knesset Rules of Procedures,
Chapter Seven, Articles 133a-k). As a consequence, states of emergency may now be subject
to legislative oversight, which at least in theory might prevent abuse. Still, the Knesset has
consistently extended the State of Emergency annually (Bracha 2003).
When the state was founded, the British Defense (Emergency) Regulations of 1945
became part of Israeli law. The provisions of these regulations which include house
demolition, administrative detention and expulsion continue to be enforced by state security
authorities without judicial process and regardless of transgressing any other Israeli law,
including those upholding basic civil rights, such as freedom of association and movement
(Tzur 1999). Although the Knesset moderated a few of the more draconian provisions in
1979, most of these regulations remain in effect (Arbel 2002) and include neither safeguards
preventing abuse nor parliamentary supervision. The courts have, however, expanded their
review of the security authorities’ powers under the Defence Regulations and insisted on them
being interpreted according to democratic principles and consistent with the provisions of the
Basic Law: Freedom of Occupation and the Basic Law: Human Dignity and Freedom, both
enacted in 1992 (Bracha 2003).
Comment [MSOffice1]: Should this be
Defence if UK spelling?
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From these examples as well as others beyond the scope of this article there is no
question, then, that since the founding of the state, executive power in Israel has always been
exceptionally strong in dealing with terrorism. Still, over time there has been movement both
towards enhanced judicial supervision (as in regard to Defence Regulations) and increased
legislative oversight (as in the declaration of a State of Emergency), although legislative
mechanisms designed to prevent executive abuse are still few and far between.
Post-9/11 Anti-terrorist Lawmaking and Other Measures
Since the US-declared War on Terror and after several western democracies were
placed in a similar position to Israel in a protracted conflict with terrorism, it is clear that the
balance of power between successive Israeli governments and the Knesset has shifted, albeit
slightly. This shift can be seen with regard to legislation on citizenship, terrorist funding,
security forces regulation, targeted killings, and border control.
One of the most thorny security issues for Israel has been Palestinians’ access to the
country. Following a wave of terrorism in 1993, Israel closed its borders to Palestinian
workers living in the West Bank and Gaza Strip. Since, however, some Palestinians were
married to Israeli Arabs (who comprise almost 20 per cent of Israel’s population), these
Palestinians were prevented from travelling freely in and out of Israel, and many decided to
apply for residency permits in Israel. Successive governments feared that, if large numbers of
Palestinians were allowed to enter Israel, some would subsequently ask for citizenship while
others might become involved in terrorist activities. Following a successful appeal to the
Supreme Court in 1999 (H.C. 3648/97, Stamka et al vs. Interior Minister), however, Israeli
authorities pledged to allow some Palestinians married to Israelis to enter on a temporary
basis, and after five years become permanent residents. Following the second intifada,
however, the government reneged on its earlier promise, citing security concerns; the security
services provided evidence that suicide bombers had received assistance from Palestinians
temporarily allowed into Israel. The upshot was that in 2003 the Knesset approved the
Citizenship and Entry into Israel Law [Temporary Provision] (subsequently revised in 2005),
which allowed the authorities to deny residency and citizenship applications on security
grounds. A subsequent section will analyse in detail the Knesset’s role in this law.
Border security has manifested itself in a second, highly controversial, policy area
with important foreign policy implications. Following a massive wave of suicide bombings in
2002, the government proposed a physical barrier that would separate Israel from the
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Palestinians in the West Bank. Although Israel would effectively be establishing a quasi-
border closely following the pre-1967 boundary, the government stressed the fence’s
temporary nature as a security barrier designed to impede suicide bombers. However, once
again, it is the judiciary rather than the legislature that has been more active on this issue.
Indeed, the courts have been more activist on this issue than on any other: they have agreed
not only to hear appeals (largely from Palestinians) regarding the fence’s path, but have even
forced the government to dismantle certain parts and move them to other locations where
Palestinian rights have been infringed to a lesser extent.
A third post-9/11 measure taken by the government, pursuant to UN motions and US
legislation, addressed terrorist funding and, specifically, the extent to which quasi-legitimate
philanthropic, social and other organizations were used to funnel monies to finance terrorist
activities. In 2005, the Knesset unanimously passed a law prohibiting the funding of terror.
The law defines terrorist organizations,2 terrorist acts, terrorists and terrorist property. In an
attempt to be less draconian, an amendment imposed by the Knesset distinguished between
passive funding of terrorism, such as bank clerks unaware of their actions, and active
financial support, in which case property and funds can be seized.
One of Israel’s most controversial policies – one that has attracted considerable
international criticism has been a fourth policy according to which Israeli security forces
target and kill terrorists and their leaders to forestall ticking bombs on their way to
perpetrating deadly attacks on Israeli citizens. This retaliatory policy follows guidelines set by
the Attorney General and military legal advisors and is strictly within the ambit of the
executive. Neither the legislative branch, which is largely circumvented, nor the judicial
branch, which has refrained from addressing appeals regarding its legality, have been able or
willing to supervise the operationalisation of this policy (Gross 2003; Hafez and Hatfield
2006; Kretzmer 2005; Pedahzur and Perliger, forthcoming). Basic procedures relating to the
policy have not changed over time. Activity was intensified during the second intifada but the
basic policy has been pursued for many years (most notably after the assassination of 11
Israeli athletes at the Munich Olympics in 1972) and has been expanded to include the leaders
of terrorist cells and even religious or political leaders associated with terrorism.
Finally, the Knesset has addressed the issue of legislative oversight of Israel’s
security services, most importantly, the General Security Services (GSS), which work with
the Israeli Army (which is largely conscripted) and police to combat terrorism. Until recently,
there was no legislation regulating their activities, in contrast to the military and the police. In
effect, the GSS used to define its own authority across a range of areas (Gillon 2002). With
the so-called Bus 300 Scandal in 1984, where the GSS killed the hostage-takers who had
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taken over a civilian bus during interrogation, criticism of the GSS proliferated. Following a
report by an investigatory committee, a ruling by the Supreme Court, and years of
parliamentary debate (Zimmerman 1997; Navot 2003), the Knesset passed the General
Security Services Law in 2002. This law imposed executive and legislative supervision on the
security services; the latter in the form of a special subcommittee of the Foreign Affairs and
Defense Committee devoted to the intelligence and security services.
It is clear from these and the previous cases, then, that notwithstanding 9/11 and the
US-led war on terror, a modest but perceptible shift has occurred in the balance of power
between the executive and the legislature in relation to antiterror policies. While there is
clearly abundant room for further movement in this direction, the involvement and influence
of the Knesset, particularly in its oversight capacity, has undoubtedly increased. Until the
1980s, the Knesset’s influence in these policy areas was minimal, and the government had
almost unlimited powers to combat terrorism. After 1979, the legislature became more visible
and more assertive with the repeal of some defence regulations and their replacement by the
Emergency Powers (Detention) Law. This shift toward incorporating policy and procedures
into legislation as the method of choice - as opposed to accepting unfettered executive
emergency powers - is a significant enhancement in Israel’s democratic development. The
shift is best illustrated by the enactment of the GSS Law, the amendment to the Citizenship
and Entry into Israel Law, and the Prevention of Funding Terror Law, as well as by the
bringing of the right to declare a State of Emergency under the Knesset’s purview.
Still, the trend towards increased legislative supervision should not be exaggerated.
While the Knesset has become an institutional player in the war on terror, it is by no means
the dominant one, let alone a match for the executive. As Schwartz and Sulitzeanu-Kenan
(2004: 96) concluded regarding the Bus 300 affair, The GSS case demonstrates that mere
formal changes in accountability relations, which are not accompanied by a change in the
dominant administrative values in the relevant policy community, bring about a modest
change. Legislation passed is rarely, if ever, opposed by the government on the contrary, it
is largely government initiated and approved by the Knesset in an amended form. Moreover,
the strategies used by the government to circumvent the legislature continue to be used, and
expanded, so that the executive still retains the upper hand in combating terrorism. Indeed, as
the earlier discussion has shown, it is the courts that have been more active, more critical, and
ultimately more constraining on executive power. But, here too, the shift is measured. Like
the Knesset, the Supreme Court tends to accept the rationale of the government and the
military concerning national security even when a policy adopted curtails human rights
(Kretzmer 2002).
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The General Structure of Legislative Interaction with Israeli Security Forces
Under Israeli law, both the Israeli army and the security services are statutorily
subordinate and responsible to the Israeli government (Basic Law: The Army and the GSS
Law). Top military officers and security service heads must report to the Knesset’s Foreign
Affairs and Defense Committee; and the security forces’ activities are liable to scrutiny by the
State Comptroller (an independent oversight arm of the Knesset), whose reports are debated
by the Knesset’s State Control Committee. The Knesset thus interacts with the security forces
and the top military officers at plenary, committee and sub-committee levels. Besides the
Foreign Affairs and Defense Committee and the State Control Committee, other committees
with relevant jurisdictions over security matters include the Joint Committee for the Defense
Budget. As in other legislatures, sub-committees undertake serious oversight whereas debates
in the full Knesset tend to be directed primarily towards the mass media (Shenhav 2008).
Many statutes previously approved by the Knesset provide for ministerial regulations
and orders issued pursuant to legislation to be subject to Knesset committee approval; others
require committees to be consulted or at least notified prior to ministers issuing
regulations. The Knesset’s 12 permanent committees are also empowered to initiate and
conduct oversight investigations within jurisdictions defined by the Rules of Procedure
(Hazan 2001). In conducting these investigations, MKs may request detailed information on
any government activity and summon officials and ministers to appear. Even so, committees
cannot compel anyone to appear, testify, or answer questions; nor can they force the executive
to provide them with any documentation or impose penalties if a committee witness conceals
or provides false information.3 Party ratios on the committees also closely mirror those of the
chamber giving the government a built-in majority on each committee. Oversight
committees, then, are watchdogs without teeth and on a leash. If a government acts
inappropriately, it can refuse information to committees, and the committees are helpless to
enforce their demands.
Historically, the lack of strong legislative oversight has reflected strong executive
control over the legislature. Israel’s early legislators were satisfied with executive domination
and did not perceive the need to scrutinize the executive (Edelman and Zelniker 1973). Since
the state’s early days, legislators’ perceptions of their role have changed significantly. Beyond
what may be MK’s limited conception of their roles, committees encounter other institutional
difficulties in undertaking oversight. Except for the Foreign Affairs and Defense Committee,
committee debates are open, leading to a constant stream of leaks on sensitive issues. Indeed,
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so bad has the situation been on occasion that members of the security services have
sometimes only agreed to give testimony in sub-committee where proceedings are closed and
deliberations more professional (Yaari 2004). Unlike their parent committees, moreover,
party ratios on the sub-committees are not required to reflect those in the plenary, thereby
decreasing government influence at least potentially when they conduct oversight
capabilities. Even so, sub-committees do not have autonomous investigatory powers and must
rely largely on information provided by the government. Exceptionally, however, the sub-
committee dealing with defence and foreign relations of the State Control Committee does
receive - and debates - in-depth reports provided by the State Comptroller, who is
independent from the executive; however, these reports are restricted exclusively to this sub-
committee. It is not surprising, then, that Hofnung (1996a: 244) has concluded that the
Knesset does not have the necessary tools to undertake adequate oversight of the security
services.
With these structures and the previous review of pre- and post-9/11 anti-terror
measures, let us now turn to an example of Israeli legislation in the war against terror with a
specific focus on the amendment of the Citizenship and Entry into Israel Law [Temporary
Provision] 2003 and its revision in 2005. In so doing, we may gain deeper insights into how
the Knesset operates in these extremely difficult policy areas, how it has managed the vexed
issues posing security concerns with civil liberties and human rights, and by extension how
much influence the legislature has over the policymaking process.
Citizenship and Entry Legislation, 2003 and 2005
The specific focus here is Israel’s attempt to combat terrorism through the control of
immigration. While governments of different states have sought to regulate immigration as
part of their anti-terror efforts, in the Israeli context, such efforts are made much more
problematic by the contested status of Palestinians in the occupied territories.
The Knesset finally enacted the Citizenship and Entry into Israel Law [Temporary Provision]
in late July 2003 following months of deliberation in committee and subsequently in the
plenary. Similar lengthy deliberation preceded the relaxation of the original legislation’s
provisions in 2005. Table 1 gives some sense of the nature and magnitude of the Knesset’s
efforts by listing the attendees at no less than a dozen Internal Affairs Committee meetings
and summarizing each meeting’s political dynamics.
Table 1 here
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The table points to several important aspects of executive-legislative relations in
relation to this issue. First, committee members were exposed to constant and significant
representations by civil rights organizations, as well as the government’s security-related
information and perspective from executive branch officials, including the Attorney General
and ministers. The civil rights representatives, it should be noted, were allowed not only to
participate in committee discussion but also to challenge government representatives directly.
Second, the high saliency and controversiality of this issue was underlined by committee
members’ attendance above and beyond the Knesset’s norm (Hazan 2001): all 15 members of
the committee attended on several occasions, including the two meetings when the committee
voted. Legislative attention, sensitivity, openness and an ability to revise the government’s
agenda all point to the importance of both the issue and the Knesset as a legitimate forum for
public discussion. In short, according to these two criteria at least, the process was relatively
balanced. The hitherto absolute dominance of the executive on security issues did not apply in
this case. Still, the Citizenship and Entry into Israel Law was unquestionably a governmental
initiative, as was its relaxation (in response to Supreme Court criticism) two years later.
Moreover, the committee’s (somewhat minor) revisions were approved with the government’s
consent.
We should also add that this example is by no means exceptional, nor is it an outlier,
in terms of legislative intervention in a hitherto executive-dominated policy realm.
Government legislation introduced in 2005 which proposed declaring all the occupied
territories a confrontation zone’, thereby effectively reducing Palestinians’ legal standing and
the amount of compensation paid when suffering damages to their property caused by the
military also resulted in extensive amendments in the Knesset. The Constitution, Law and
Justice Committee after 15 very well-attended meetings in which the members of the
committee and its advisors confronted representatives of the executive branch and heard
testimony from more than 50 witnesses (lawyers, academics, civil rights organizations,
military officers, among others) revised the original draft of the bill to allow a completely
different interpretation (Eitan 2007). The Knesset also subjected other war on terror
legislation to lengthy deliberation over the same period including the GSS Law passed in
2002 and the Prevention of Funding Terror Law passed in 2005. In the latter case, the
Constitution, Law and Justice Committee held no fewer than 16 meetings and seven debates
were held in the full Knesset.
Bypassing the Knesset
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Indeed, while the government appears to have agreed to Knesset committee
participation in the lawmaking processes in the case of the Citizenship and Entry into Israel
Law, this practice has not been followed in every case involving anti-terror policies. For, in
many instances the executive has exploited its monopoly of information to the fullest, to the
extent of bypassing the legislature. Two policy areas the demolition of houses and targeted
killings illustrate this important point. In both cases, the legislature had little or no say in
how policy was formulated or implemented. Moreover, legislative oversight to the extent
that it was exercised at all was ex post facto and limited to the full chamber in the form of
simple motions for the Knesset’s agenda, interpellations, or (unsuccessful) no-confidence
votes.
In the wake of a massive wave of suicide bombings in Israel during 2000-2002, the
government reinstated its previous policy of house demolitions, which had been halted owing
to concerns regarding its effectiveness. As a result, over 600 houses were demolished in the
occupied territories between mid-2002 and early 2005. Although the Knesset plenary
convened 30 debates on the topic between 2000 and 2008, and the Constitution, Law and
Justice Committee addressed the issue twice, the Knesset demonstrated no political will to
change the policy. Similarly, despite the dramatic increase in the number of targeted killings
since the second intifada, although the Knesset plenary convened approximately 60 debates,
we were unable to find any committee discussion on the topic over the last eight years. It
could be that the Foreign Affairs and Defense Committee or its sub-committees have
addressed the issue along with house demolitions. However, since the committee’s
deliberations are confidential, this cannot be confirmed either way. In the absence of any
information to the contrary, it seems that in this policy area too the Knesset was content to
allow the executive to dictate policy.
Decisions surrounding the erection and location of the security fence have also been
monopolised by the Ministry of Defense, effectively bypassing the Knesset. Here too, it has
been the Supreme Court that has been most active in conducting oversight - at times slowing
down the construction process and even forcing the demolition and relocation of certain
sections so as to achieve a more equitable balance between security needs and civil rights.
Even so, the policy itself has not been at issue, nor has the legislature been involved.
Certainly, the Knesset has debated issues associated with the fence, both before and during its
construction, and no less than 150 debates have occurred in the plenary (where oversight is
less than effective). We could, however, find only two relevant discussions in the
Constitution, Law and Justice Committee: one focusing on the International Court of Justice
legal jurisdiction in regard to the fence, and the other to broader questions surrounding human
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rights in Israel. Again, it is possible that the Foreign Affairs and Defense Committee might
have discussed the issue, but its sealed protocols make it impossible to confirm their
involvement or non-involvement.
Knesset Influence and Oversight over Anti-terror Policy
The Israeli experience with combating terrorism is unique. Other advanced industrial
liberal democracies Italy, Germany, and more recently Russia, Spain and Britain have
experienced terrorist attack but few have encountered domestic terrorism to the extent and
over the same period as Israel. With the terrorist attacks of 9/11, the resulting US-declared
war on terror, and the subsequent attacks in Madrid, London, Bali and elsewhere, most
Israeli policymakers as well as the vast majority of the Israeli public believe that others now
understand better Israel’s experience over six decades.
Based on the research reported above and interviews with MKs, including the chairs of the
State Control Committee and the Foreign Affairs and Defense Committee, and former heads
of Mossad and GSS, it is clear that successive Israeli governments have enjoyed almost
unlimited military and governmental power to combat terrorism, and that the country’s
legislature has been largely absent from the policymaking process. As we have shown, this
imbalance has been corrected to a certain extent over the last two to three decades. Most
importantly, the government’s almost complete monopoly over declaring a State of
Emergency and implementing the Defence Regulations have been curtailed primarily by the
judicial branch but with some Knesset participation and influence. Our interview evidence
also supports this conclusion: all but one MK said that the continued confrontation with terror
had not increased executive power vis-à-vis the legislature. As we have demonstrated,
legislative influence is now very much part of the policymaking process even though a
balance has not been achieved between the two branches. Moreover, ex post facto legislative
oversight is also no longer absent, although it is not yet effective. In short, we can identify
movement towards increased legislative involvement in Israel’s ‘war on terror, but the extent
of any shift is small. So, while the Knesset has asserted the right to debate and vote annually
on a State of Emergency, it has yet to confront any government in any serious way on this
issue. In contrast, however, the judiciary has taken on the government, on some but not all
war on terror-related issues. Even so, and perhaps surprising to some, when interview
respondents were asked on a scale of one to five (low = 1, high = 5), how important it was for
the Knesset to oversee the government’s anti-terrorist efforts, all MKs answered five. When
they were subsequently asked if legislative scrutiny was effective, the answers ranged from
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three to five. In short, while MKs give themselves only an above-average grade for effective
executive oversight, they do perceive the critical need to oversee the government.
Now, as the previous discussion has shown, the effectiveness of parliamentary
scrutiny and oversight has varied significantly across different anti-terrorism policy areas.
Both the Knesset and the judiciary have adopted different agendas in respect of Israel’s 1967
borders, compared with their agendas in regard to the occupied territories, especially the
Palestinian-populated West Bank and Gaza Strip. On policy within Israel’s borders, the role
of the legislature has been more significant; for example, the Knesset successfully amended
immigration laws and passed the GSS Law, which provided for legislative oversight. On
policy within the occupied territories, however, legislative influence has been much more
limited. The government has continued to monopolize policymaking for example, in respect
of house demolition, targeted killings, administrative detentions and the legislature has not
attempted to intervene. Even so, a former head of the GSS said in an interview that when he
held his job he felt more under scrutiny both by the Knesset and by civil society than his
colleagues in Mossad. He explained this perception as mainly a consequence of GSS
involvement in domestic security matters, while Mossad often only came under fire following
an international fiasco that required accountability (Gillon 2008). This distinction also seems
to hold true for the judiciary, which has constrained some government activities in the
territories, but much less so within Israel’s 1967 borders (Kretzmer 2002).
Certainly, the Knesset has demonstrated institutional capacity to oversee the
executive’s work in relation to the ‘war on terror. Even before 9/11, in its protracted conflict
with terrorism, legislators demonstrated an evolving capacity to reinforce existing oversight
mechanisms with new ones. Previous structures included the sub-committee of the Foreign
Affairs and Defense Committee that oversees the security services, and the State Control
Committee, which is empowered to discuss the State Comptroller’s Report dealing with the
Israeli Army and the security services. New institutional capacity reinforced existing capacity,
included joint meetings of the Constitution, Law and Justice and Foreign Affairs and Defense
committees, which could recommend approval or rejection of a government-declared State of
Emergency. In the period after 9/11, new oversight capacity evolved, notably a 2005
amendment to the State Comptroller Law that required the previously secret reports of the
State Comptroller to be presented to a committee of two, comprising the chairs of the State
Control and the Foreign Affairs and Defense committees, who may presumably ask searching
questions, particularly since the chair of the State Control Committee is traditionally a
member of the opposition.
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In the earlier discussion, we reported interview evidence suggesting that all MKs
attached the highest important to executive oversight in relation to terrorism. When asked
which tools are used for this purpose, respondents identified Knesset committees as most
important, followed by the budget and then the State Comptroller. Interpellations and motions
for the agenda received low scores from all respondents. All but one of the MKs also
surmised that the public supports enhanced legislative oversight of the executive, even in the
area of anti-terrorist operations, regardless of Israel’s security situation. However, when asked
about their motivations for legislative oversight, none mentioned strong institutional
incentives; rather they attributed their demand to a desire for professional effectiveness and
fulfilling their representative role. The interview evidence suggests that, as a result, a more
pervasive legislative oversight culture has developed among MKs over the last two to three
decades, which has replaced previous ad hoc, idiosyncratically motivated, efforts.
Knesset oversight of the executive has sometimes occurred along party but not
governing coalition versus opposition lines, as our in-depth case study of immigration policy
demonstrates. Since 1967, Israeli party politics has been divided along a security (doves
versus hawks) dimension, not a left-right socio-economic one. The polarized committee
debates over the citizenship law pitted the dove-like Arab minority parties against the
hawkish parties, some of which were part of the governing coalition and some of which were
part of the opposition. At times, some of the more dovish parties sided with the Arab MKs in
opposition to certain proposals, but even the centre-left Labour party some of whose
members had reservations about the law ended up voting in favour. In those committees and
sub-committees where no Arab MKs were members, oversight debate was less polarized and
based on a shared view of Israel’s national interests.
McCubbins and Schwartz (1984) have distinguished between ad hoc or fire alarm
and the more frequent, systematic police patrol oversight: they have argued that members of
the US Congress prefer the former to the latter. McCubbins and Schwartz’s distinction does
not transfer easily to the Israeli context because, although parliamentary systems have
developed numerous oversight capabilities (Pelizzo and Stapenhurst 2004; Pelizzo,
Stapenhurst and Olson 2004; Friedberg 2006, 2008), there is no separation of powers in such
systems. Our analysis suggests that the Knesset combines police patrol and fire alarm
oversight. Committee deliberations over the new immigration law are a case in point. More
generally, the State Comptroller (chosen by and responsible to the Knesset) conducts police
patrol oversight when he/she annually and randomly chooses several issues handled by
government agencies, including those related to the security services and the army, and
thoroughly investigates and assesses adherence to policy and law. A sub-committee of the
13
State Control Committee then considers the Comptroller’s reports in closed session and may
even initiate an investigation. Fire alarm oversight is undertaken indirectly in the plenary
and often ineffectively when legislators submit motions for the agenda based on information
provided by interested parties or the mass media. Issues may be referred to the relevant
committee, but action by the relevant committee in the form of a report is not guaranteed. If a
committee does produce a report, however, it is passed to the relevant minister, who must
reply within three months. Legislators may also introduce private bills or ask
questions/interpellations that are the result of information gleaned from the media or provided
by individual citizens and civil organizations regarding alleged executive wrongdoing. Very
rarely, however, are the ongoing activities of Israel’s security forces questioned or scrutinized
through these routes.
Following decades of almost exclusive executive supremacy in combating terrorism,
the pattern of executive-legislative relations in Israel has then evolved into a more dynamic
relationship. As in other parliamentary systems, oversight is far from being systematic and
consistent, and Israel’s security and anti-terror policies are still largely executive-initiated and
executive-dominated. And, yet, even within the context of a protracted confrontation with
terrorism, legislative oversight in Israel has become more demanding and as a result
changed the pattern of executive-legislative relations. Oversight is, moreover, driven
increasingly by citizen demands. That is, embryonic legislative control over the executive is
the direct product of an increasingly emboldened Israeli pro-democratic civil society
(Pedahzur (2002) and courts that place value on preserving civil rights (Horowitz and Lissak
1989; Laskier 2000; Lehman-Wilzig 1992; Levy and Mizrachi 2008).
From Executive Domination to Executive-Legislative Dialogue
Terror and anti-terror policies are not recent phenomena in Israel. Nor has Israel
suffered a single, major calamitous attack that has framed subsequent political reaction in the
way that it did in the United States after 9/11. Because of the circumstances of the state’s
foundation, followed by six decades of terrorist attacks, the policy responses of successive
Israeli governments and Knessets have evolved somewhat from the statutory remnants left by
the British. So, too, has the pattern of executive-legislation relations evolved in the context of
antiterror policies. Until the 1980s, Knesset oversight of successive governments’ antiterror
and national security policies was practically non-existent; that is, for almost half Israel’s
history. Since then, oversight has evolved from non-existence towards one of greater
effectiveness and accountability. Even so, oversight has eschewed delving into operational
Comment [MSOffice2]: In
bibliography this is 2000
14
matters. Instead, oversight has been essentially reactive; investigations ex post facto; and,
mostly, have concluded by approving government regulations and decisions (Foreign Affairs
and Defense Committee 2005).4
The evolution of enhanced Knesset oversight, moreover, has reflected growing public
domestic and international pressure for greater legal and broad political scrutiny.5 The Israeli
public is no longer willing to allow the government to ride roughshod over civil rights, even
in the name of national security. As a consequence, MKs have been placed under stronger
public pressure to scrutinise executive monopoly of anti-terror policy at the same time that the
increasingly active Supreme Court has insisted on new safeguards to protect human rights.
Since its establishment, former State Prosecutor and current Supreme Court Justice Edna
Arbel has explained, the security of the state was a supreme principle in the decisions of the
courts. Eventually, its strong status eroded. The security of the state, the Supreme Court has
ruled, cannot justify in each case and in every situation an infringement of human rights
(2002: 54). In turn, the Court’s increased activism has had the effect of emboldening the
Knesset to challenge the government more often; it is far more difficult for the Knesset to
challenge rulings from the highest court.
Enhanced scrutiny of the executive, moreover, has been horizontal as well as vertical;
not only is oversight deeper, it now encompasses a wider range of state agencies, including
the National Security Council (NSC), which was brought under the Knesset’s oversight
jurisdiction in 2005.6 Even so, the path towards greater oversight has not been one that all
MKs have wished to walk and the security services have often not been thrilled to allow them
to do so. When the guns roar, democracy should take a back seat, a former head of Mossad
starkly insisted (Halevy 2008). Much more encouraging for the prospects of greater oversight,
however, were the comments of the former chair of the Constitution, Law and Justice
Committee, who argued: When the guns roar, the first casualty is civil rights, but when one
gets accustomed to the noise the legislature must act to correct this situation (Eitan 2008).
Evidence of a certain degree of institutional tension is surely a healthy sign in any democratic
political system.
In sum, the Israeli experience shows that in time the legislature will assert oversight
powers in a protracted, low-intensity conflict. Legislative assertiveness, however, is
necessarily a slow and developing process, and does not lead inexorably to a balance of
executive and legislative power. The executive may remain dominant. The Israeli experience
shows that oversight empowerment of the legislature is possible, even when combating
terrorism. It also shows the importance of examining the actions of the judicial branch of
government to assess evolving executive-legislative relations fully; and, finally, in any
15
democracy engaged in a war of attrition, the potential influence of the public cannot be
ignored. Legislative studies cannot afford to discount the vital and developing oversight role
of legislatures in the war on terror; nor can it afford to disregard other relevant factors
uncovered by the Israeli case. Otherwise, there is a real danger of producing myopic
explanations of legislative-executive relations during the era of global terrorism.
Note on Authors
Chen Friedberg is co-director of the Israel Democracy Institutes project on Legislative
Oversight of the Executive Branch in Israel, email: lcf@013.net; Reuven Hazan is Professor
in the Department of Political Science at the Hebrew University of Jerusalem, email:
mshazan@huji.ac.il.
Acknowledgements
Funding for this research was provided by the Eilat Foundation, the Cherrick Centre for the
Study of Zionism, the Yishuv and the State of Israel, and by the Shaine Centre for Research in
the Social Sciences at the Hebrew University of Jerusalem.
16
Table 1
Date & Topic
Attendance
Dynamics
Vote
14/7/03
Preliminary
discussion on
the government
proposed
amendments to
the citizenship
law.
12 out of 15 committee
members, committee’s
legal advisor, 4 Ministry
of Internal Affairs
representatives, Deputy
Attorney General, Justice
Ministry legal
representative, GSS legal
advisor, police
representative, 5 civil
rights organisations
representatives
Discussion of Interior
Ministry and civil rights
organizations proposals.
Debates largely pitted
pro-civil rights Arab MKs
against coalition and
opposition MKs
emphasising security
concerns.
None.
29/7/03
Continued
discussion.
All 15 committee
members, committee’s
legal advisor, Minister of
Internal Affairs, Deputy
Attorney General,
Ministry of Internal
Affairs, Justice, and
Finance legal
representatives, 2
Ministry of Labor
representatives, 4 civil
rights organizations
representatives.
Additional details
provided by Government
and by NGOs.
Heated discussion led by
(non-Arab) opposition
MK, focused on
proposal’s implications
for children’s rights.
Complaints lodged by
MKs against the
government for lack of
information provided
MKs on proposals’
consequences.
None.
30/7/03
All 15 committee
members, committee’s
Amendments proposed by
committee members:
All articles
of the
17
Government
proposals
amended by
committee.
legal advisor, Knesset’s
legal advisor, Minister of
Internal Affairs, Deputy
Attorney General,
Ministry of Internal
Affairs representative,
GSS representative.
giving Minister of
Internal Affairs discretion
to permit children under
12 entry in order to avoid
separation from a parent
living in Israel; and
extending the maximum
period of such a permit
from 3 to 6 months.
Heated discussion ensued.
Threats made by the chair
to expel certain MKs, and
to close meeting to the
media. MKs from several
left-wing parties left at
one point.
proposed
law,
including the
committee
amendments,
passed
unanimously
by 8 MKs
present at
vote.
30/7/03
Request for a
new vote made
by Arab MK
14 MKs, committee’s
legal advisor, Ministry of
Internal Affairs
representative.
Short, considered,
discussion on proposed
revote.
Request
defeated 9-4.
The 2005 Revisions
28/6/05
New
government
proposal
replacing
previous law
expiring in 2
months.
6 MKs, committee’s legal
advisor, Attorney
General, Ministry of
Justice legal
representative, GSS
representative, 4 civil
rights organizations
representatives.
Government proposed
relaxation of entry
restrictions based on age.
New proposals would
allow approximately 30%
more applicants.
Heated discussion pits
Arab against right-wing
MKs.
None.
6/7/05
6 MKs, committee’s legal
advisor, 2 Ministry of
Discussion of details
provided by Ministry of
None.
18
Continued
discussion.
Internal Affairs
representatives, 3
Ministry of Justice
representatives, Ministry
of Public (Homeland)
Security representative,
GSS representative, 2 Bar
Association
representatives, 2
municipality
representatives, 8 civil
rights organizations
representatives.
Justice and by civil rights
organizations.
Heated debate between
the representatives of the
Justice Ministry and those
of the civil rights
organizations alongside
the Arab MKs.
11/7/05
Continued
discussion.
6 MKs, committee’s legal
advisor, 2 Ministry of
Internal Affairs
representatives, 3
Ministry of Justice
representatives, GSS
representative, trades
union representative, 7
civil rights organizations
representatives.
Discussion of details
provided by Ministry of
Justice and by civil rights
organizations.
Considered debate on
articles of the law, largely
between Ministry of
Justice representatives
and committee legal
advisor and chair.
None.
12/7/05
Continued
discussion.
6 MKs, committee’s legal
advisor, 2 Ministry of
Internal Affairs
representatives, 3
Ministry of Justice
representatives, Ministry
of Public (Homeland)
Security representative,
GSS representative, Prime
Minister’s advisor,
National Council for
Discussion led
emphasizing lesser evil
of relaxing certain
restrictions. Continued
opposition from civil
rights organizations and
other Arab MKs.
None.
19
Children representative, 2
Bar Association
representatives, 8 civil
rights organizations
representatives.
18/7/05
Continued
discussion.
3 MKs, committee’s legal
advisor, 2 Ministry of
Internal Affairs
representatives, 3
Ministry of Justice
representatives, GSS
representative, Prime
Minister’s advisor, 7 civil
rights organizations
representatives.
Debate on each article.
Civil rights organization
representatives propose
amendments for
committee consideration.
None.
Date unknown
Closed session.
Committee members,
government ministers and
GSS Head.
Sealed protocol.
25/7/05
Continued
discussion.
4 MKs, committee’s legal
advisor, 4 Ministry of
Interior representatives, 2
Ministry of Justice
representatives, GSS
representative, National
Security Council
representative, 14 civil
rights organizations
representatives, 2 Bar
Association
representatives.
Personal stories from
people affected by the
law.
Committee amendments
proposed with the consent
of Government: Minister
of Internal Affairs
permitted to allow entry
for the following: 1) Men
over 35 and women over
25, in order to avoid
marital separation; 2)
Children up to 14 (rather
than 12) in order to avoid
separation from a parent
None.
20
living in Israel.
26/7/05
Preparation for
second and third
reading.
All 15 MKs, committee’s
legal advisor, Interior
Ministry representative, 2
Justice Ministry
representatives, GSS
representative, 3 civil
rights organizations
representatives.
Further amendments
proposing additional
looser (by the Arab MKs)
or tighter restrictions
(right-wing MKs).
New articles
approved 10-
4, including
committee
amendments.
Opposition
MKs and
Arab
committee
chair (an
Arab MK
from the
main
governing
coalition
party) voted
against.
21
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25
Interviews (conducted in Jerusalem, May 2008)
MK Michael Eitan, member of the State Control Committee, former Chair of the
Constitution, Law and Justice Committee.
MK Tzachi Hanegbi, Chair of the Foreign Affairs & Defense Committee and Chair of the
Joint Committee for the Defense Budget, former Minister of Internal [Homeland]
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MK Zevulun Orlev, Chair of the State Control Committee.
MK Otniel Schneller, member of the State Control Committee and the Foreign Affairs &
Defense Committee, Deputy Speaker of the Knesset.
MK Yuval Steinitz, member of the Foreign Affairs & Defense Committee, former Chair of
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1 Although Israel lacks a written constitution, a dozen basic laws have been adopted, which together
constitute important elements of the state’s constitution making process. This particular basic law also
provided for significant electoral reform resulting in the direct election of the prime minister, thereby
strengthening the executive (Hazan 1997). In order to offset this increase in executive power, the
legislature was granted additional powers, includings those concerning a State of Emergency. In
exceptional cases, however, the government may declare a State of Emergency, but the Knesset must
be convened within seven days to approve it.
2 According to the law, a terrorist organization is a group of people that work toward the
implementation of a terrorist act or that its purpose is allowing or advancing the implementation of a
terrorist act (Article 1).
3 Only the full Knesset may initiate a parliamentary inquiry committee with the power to subpoena
witnesses and call for documents. Successive governments have usually opposed the establishment of
such committees and when they have been appointed, they have not been effective. Alternatively, if an
issue is important enough, or if public pressure is sufficiently strong, a national inquiry commission
similar to a royal commission in the United Kingdom might be formed. However, these commissions
too have been instituted very rarely (Klagsbald 2001; Sulitzeanu-Kenan 2006).
4 The Rubinstein Committee established in 2003 called for more pro-active scrutiny by the Knesset.
Although only some of the committee’s recommendations were implemented at the time of writing, the
committee’s suggestions reinforce the trend towards stronger oversight.
5 Another example of this phenomenon is that, until the 1990s, the names of the heads of GSS and
Mossad were secret. Now, they are publicly disclosed.
6 Continuing the shift towards including policy and procedures into legislation, thereby enhancing the
legislature’s role, the Knesset passed a law in 2008 delineating the NSC’s role, function and regulation,
and changed its name to the National Security Headquarters.
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Includes bibliographical references (p. 173-179) and index.
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Israel's democracy is in the midst of a dramatic and comprehensive restructuring, a so-called "constitutional revolution." Because it lacks a written constitution, Israel turns to its parliament, the Knesset, as both the source and the target of most governmental reforms. As a result of these reforms, the 13th Knesset (1992-96) behaved very differently from its predecessors and changed the existing patterns of executive-legislative interaction. The reshaping of government in Israel presents an institutionally unique and developing political laboratory in which evolving executive-legislative relations can be analyzed while the composition and construction of the regime continues to unfold. This article has three primary aims. I first describe the reforms that were enacted toward the end of the 12th Knesset (1988-92) regarding the two branches of government. Then I analyze the evolving executive-legislative relations in the 13th Knesset. And third, I assess the significance of these changes for the stability and governability of Israeli democracy in general and the 14th Knesset in particular.
Article
Whether a state that has been subject to attacks by a transnational terrorist group may target active members of that group who are not in its jurisdiction has caused controversy. Some refer to targeted killings of suspected terrorists as extra-judicial executions; others claim they are legitimate acts of war. The author examines the legality of such killings under norms of international human rights law and international humanitarian law. Under the former system, such killings can only be lawful when carried out to prevent an imminent attack that cannot be stopped by other means. Under the latter system, such killings may be lawful if the suspected terrorists are to be regarded as combatants. He argues that while in international armed conflicts suspected terrorists are generally not combatants, in noninternational armed conflicts they may well be combatants. In such conflicts norms of international humanitarian law cannot stand on their own; the applicable system must be a mixed model, which incorporates features of international human rights law. In the final section the author discusses the Israeli policy of targeted killings and the US attack on suspected members of al-Qaeda in Yemen, and applies the mixed model to these cases.
Article
This article attempts to explain transformations in military—society relations using models developed in the context of political participation and social learning. The authors suggest that patterns of alternative politics might evolve from the undermining of the “republican contract,” that is, the exchange between citizens' military sacrifice and the rights and rewards granted to them by the state. This situation creates growing dissatisfaction among citizens that may trigger collective action, even among soldiers. Barriers to internal bargaining within the military generate modes of alternative politics in the military—society realm. Drawing from the case of Israel, the authors illustrate these strategies by focusing on conscientious objection, “gray refusal,” reservists' rebellions, and a direct form of civilian monitoring of the army.
Article
Scholars have often remarked that Congress neglects its oversight responsibility. We argue that Congress does no such thing: what appears to be a neglect of oversight really is the rational preference for one form of oversight--which we call fire-alarm oversight--over another form--police-patrol oversight. Our analysis supports a somewhat neglected way of looking at the strategies by which legislators seek to achieve their goals.