Episode Notes:

On Monday, the Israeli parliament voted to curtail the powers of the country’s Supreme Court, resulting in protests among Israeli citizens and criticism from the White House. To discuss what this means for Israeli politics, national security and relations with the United States, were joined today by Michael Koplow, the Chief Policy Officer at the Israel Policy Forum.

[:42] General overview

[3:10] Political impact of changes

[6:32] Air Force reservists protest

[9:50] U.S. response

[11:48] What's next?

Episode Transcript

Nicholas Danforth: My name is Nicholas Danforth and I'm an editor at War on the Rocks. You are listening to the Warcast, the members only podcast for what you need to know now.

On Monday, the Israeli parliament voted to curtail the powers of the country's Supreme Court, resulting in protests amongst Israeli citizens and criticism from the White House. To discuss what this means for Israeli politics, national security, and relations with the US we're joined today by Michael Koplow. Mike is the Chief Policy Officer at the Israel Policy Forum. Welcome back to the Warcast.

Michael Koplow: Thanks, Nick. Always fun to be here.

Nicholas Danforth: So a lot has been happening over the last few days. To start off, just give us a broad overview.

Michael Koplow: Israel has been debating a proposed judicial overhaul since the Netanyahu Government took power at the end of December. And as the plans have ramped up, there have been protests every single week. I think this week might have been the 29th straight week of protests. And the overhaul proposal has ebbed and flowed.

At the beginning, Netanyahu wanted to push forward with all elements of the overhaul, and there are many of them. He wanted to push forward with them right away, thought it was like ripping off a bandaid. That resulted in large protests and jolts to the Israeli economy. And what really then was the decisive factor in shelving the original plan back in the spring was a determination on the part of reservists, and particularly Air Force reservists, that if the overhaul was going to pass, they were going to stop their service in the IDF.

That was back in March and there was basically a pause until the early summer. And then when the Knesset came back into session in the summer, the government decided to pick things back up with one element of the overhaul proposal, which is known as the reasonableness clause. And basically it would curtail the power of the Israeli Supreme Court to review government decisions, not legislation, but decisions. And as that picked up, steam more and more reservists in the IDF, and again, particularly there was a strong focus in on the Air Force announced that if it passed, they were not going to serve.

The protests got even larger and larger and more and more vigorous, and amidst the largest protests that have taken place in Israel since this started, the Knesset this morning passed the reasonableness clause into law. And we now are faced with something of a black hole when it comes to Israel and what happens next. But whatever happens next, it seems as if there are possibly tens of thousands of IDF reservists who say that they are no longer going to serve, do their reserve duty in the IDF, as a result of this first part of the judicial overhaul passing into law.

Nicholas Danforth: Okay. So I want to ask you much more about that. I want to plumb the depths of this black hole, get your take on what happens next. But before we do that, tell us specifically just in terms of the structure of the country's domestic politics, how does the actual, what actually got passed, this particular clause, affect the workings of Israeli politics?

Michael Koplow: It's a pretty big deal because Israel has no constitution. And so what that means is that the checks and balances in Israel's system aren't written down. They're not codified the same way they are in the United States or in other constitutional democracies. It's basically emerged over 75 years as this sort of push and pull between the government and the courts. And that makes the role of the courts even more important than it would in a system like ours here in the United States where we have checks that are built into the Constitution and built into the system.

One of the things the Israeli Supreme Court has taken on over the years, and to be clear this is not something that is written into Israel's unofficial constitution, which are called basic laws. It's not something that existed since the beginning of the state. But over time, the Israeli Supreme Court has acquired for itself the power to strike down government decisions if they are deemed to be extremely unreasonable. Now we have something similar here in the United States. It's the arbitrary and capricious standard for judging agency action. And so the Supreme Court will sometimes strike down government action if it deems it to be extremely unreasonable. And that's what the government has taken on and has eliminated today.

So as of this morning going forward, the Israeli Supreme Court will not be able to judge government decisions based on this extreme unreasonableness test. It also will not be able to weigh in on ministerial appointments, which were also subject to this reasonableness test. And it also won't be able to compel government action that is deemed to be unreasonable if it doesn't happen. And that's come up in this as well because one of the other elements of this overhaul is about the way in which Israel selects its judges, elected by a judicial selection committee. And one of the things the Justice Minister has been refusing to do is to actually convene that committee. So unless it's convened, judges cannot be appointed on any of the three levels of Israeli courts.

Before this morning the Supreme Court would've been able to say, "That is an extremely unreasonable action," and would've mandated that the committee be convened. As of this morning it no longer has that power. So this will affect a range of things. And in a system where you don't have a constitution, you have a unicameral legislature, the executive and the legislature are the same because the same majority that forms the government controls the Knesset, eliminating the judicial check on all of this is very dangerous when it comes to a system that isn't going to tip over into complete majoritarian democracy. And that's why the notion of getting rid of reasonableness has been so controversial among the political opposition and among the hundreds of thousands of Israelis who've been demonstrating in the streets

Nicholas Danforth: Now, so then tell us how the reaction has evolved just since this morning. We're recording on around 2:00 PM DC time on Monday. How has the political opposition responded? How have Israeli citizens responded? And then specifically as you said, reservists had threatened to protest in response to this. Are there presumably going to follow through with this?

Michael Koplow: So things haven't evolved that much today than they had over the past week or so. There were enormous protests in the streets of Tel Aviv and in Jerusalem outside of the Knesset over the weekend. There was actually a four day march from Tel Aviv to Jerusalem on Jerusalem's main highway, Route 1. So the protestors are still where they are, they're still protesting outside of the Knesset. The political opposition in the Knesset made the decision to all walk out en masse before the final vote, passing this into law. And so it ended up passing 64 to nothing because the 56 members of the opposition all walked out.

And Netanyahu now, Prime Minister Netanyahu, is saying that it passed and he's now open to talks on the larger reform package, while the opposition is saying, "Sorry, too late. The time to do that was before you started to pass things unilaterally." And so in terms of Israeli politics right now, things are in a deadlock. They may not stay deadlocked because there is, I think the very real possibility that the Supreme Court will actually step in and strike down this legislation, which will then open up a Pandora's box of all sorts of other stuff.

Now, when it comes to the reservists, ahead of this there were about 1100 Air Force reservists and about 10,000 reservists overall who had signed onto letters announcing that if this passed, they were going to end their reserve service. This passed. It's now the law. And I expect that that 10,000 number is going to grow, and that more people who were reluctant to sign on ahead of time are going to say, "You know what? This thing passed. We think that Israeli democracy is now in grave danger and we are not willing to serve in the reserves of a country that is no longer democratic the way we thought it was before."

There are also reports today that Herzi Halevi, the IDF Chief of Staff, had a meeting with Netanyahu this afternoon after it passed, asking him to basically cut back on what's been deemed incitement against the reservist who were protesting, and to stop speaking out against the IDF, presumably because Halevi is worried that the more the government speaks out against the reservists who say they aren't serving and says they're traitors or we don't need them, the more that the reservist revolt as it's termed, the more reservist revolt will spread. So there's definitely all sorts of concern, not only in the political opposition but in the security establishment about what this is all going to do to the IDF's preparedness, and readiness, and ability to fight.

Nicholas Danforth: Now let me briefly ask, what has the response from the United States been so far?

Michael Koplow: The US is kind of in an odd position. President Biden has spoken out against the judicial overhaul now repeatedly, including issuing a statement yesterday over the weekend. He hasn't weighed in on the specifics of what a reform or overhaul should look like. What he has said is that anytime you're doing something like this, it should be done by consensus. And not doing it by consensus will raise questions about Israeli democracy. So we've seen statements from the president. There have been all sorts of statements from Secretary of State Blinken, and from the spokespeople at the White House and the State Department. There have also been readouts of meetings between Secretary of Defense, Austin and Yoav Gallant, who is the Israeli Minister of Defense, where Austin has made similar warnings.

But the United States, at least for now, is largely limited to these public warnings and what are undoubtedly even more vociferous private warnings. It's impossible to envision a scenario in which the United States sanctions Israel over something like this. I don't think that that the United States is going to condition military assistance or cut back on its military cooperation with Israel. So this sort of thing puts the US I think in a tough spot, where everybody seems to be very legitimately and deeply concerned about what's going on, but unless the US wants to do something really unprecedented, and not just unprecedented but probably at least in my view disproportionate, given what's taking place, the US doesn't have a lot of great options here.

Nicholas Danforth: And then finally, very briefly, I understand this is challenging, but to the extent all of this is happening right now, how do you expect it to develop in the coming weeks, or the long term for that matter?

Michael Koplow: I think on every imaginable front, things are only going to get worse. The protesters are not going to go home. They are, by any opinion poll that's done, they are a majority of the country, representing majority opinion. The government controls 64 seats out of the 120 in the Knesset. But every single poll that's been done on the judicial overhaul proposal shows that it's deeply unpopular. And the protestors not only view themselves as representing the majority of Israelis, they represent themselves as trying to protect Israeli democracy. So they aren't going anywhere. And I think that clashes between the anti overhaul protesters and pro overhaul protesters are probably at some point going to get ugly.

The government itself also is not going to withdraw despite what Netanyahu is saying today, and holding open the door for compromise. Whether he wants it or not is an open question. His coalition partners certainly do not, that's settled. So they're going to be pushing forward, I think, as hard as they can.

The IDF reservists, as I said before, I think are going to follow through on their threat to withdraw from reserve duty. And I think their numbers are going to increase. And I also think that the more this pushes forward, there's a real chance that career IDF officers are going to quit as well, which will be a very different and more serious form of protest.

And I don't think that the United States is going to just drop it and stop its warnings. And I think that over time, not tomorrow, not next week, not next month, not even next year, over time, if this keeps on going forward, and the notion that Israel is no longer a democracy or no longer a robust democracy is cemented in people's minds here in the United States, there's no question to me that is going to impact US' relations in a real way, not only on the security front, but on down the line. US' relations really permeate almost every single level of US bureaucracy and US society. And it really is premised on this notion that the US and Israel share a set of common values. That is going to have a serious impact if the perception here is that those values are no longer shared.

And while I don't think that the US Israel security coordination and security cooperation is ever going to be threatened in a real way, we have robust security and defense relationships with non democracies around the world, and particularly in the Middle East. I do think that given the role that Israel plays in American politics, it's going to become a bigger issue here than it is for other countries. And so I don't think there's really any rosy scenario here, aside from this government deciding to unilaterally shift course, or aside from new elections at some point, and having a new government that puts things back to the status quo ante.

Nicholas Danforth: Mike, thank you as always for joining us on the Warcast.

Michael Koplow: My pleasure.