Sharp Debate Over New ‘War Powers Act’
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Letter From Israel

Sharp Debate Over New ‘War Powers Act’

Power grab by Bibi or does it provide needed flexibility in tense times?

Contributing Editor, The NY Jewish Week

A view of the Israeli parliament in session in 2016. JTA
A view of the Israeli parliament in session in 2016. JTA

The power to start a war with Iran may now rest in the hands of just two Israelis.

The scenario of armed conflict between Israel and Iran seems more likely after this week’s events. In 2015, Barack Obama placed his faith in relief from sanctions to prevent Iran from going nuclear. On Tuesday, Donald Trump spurned the Iran nuclear deal, and in doing so chose fighter jets over financial incentives as the likely means for dealing with Tehran.

Israelis are broadly united in their dismay at Iran, but they disagree sharply about if and when it would be right to go to war. Yet suddenly, it’s a decision that could be taken more easily than ever.

Last week, Prime Minister Benjamin Netanyahu stunned the Israeli public when he threw his weight behind an amendment to the country’s basic law that allows him to go to war without consulting his cabinet, but instead by getting just his defense minister, Avigdor Lieberman, on board. (Israel does not have a constitution, but it has “basic laws,” and the basic law titled “the government” deals with regulations for going to war. Until the new amendment, the law’s main clause was a relatively straightforward assertion that the state “may only begin a war pursuant to a government decision.”

Netanyahu’s former security adviser Uzi Arad described the legislation as “reckless.” In the Knesset, Michal Rozin of left-wing Meretz said that the amendment gave up checks and balances, leaving the “intoxication of power” in the hands of too few.

Aida Touma-Suliman of the Arab party Joint List commented incredulously: “The legislation will enable two people to take not only the State of Israel into war, but all the countries in the region.”

Prime Minister Benjamin Netanyahu of Israel speaking at the Kirya government headquarters in Tel Aviv, April 30, 2018. JTA

The backlash against the new amendment hit the government so hard that there are reports it may try to tone down its win by drafting a new amendment, this one slightly weaker, to replace that which just passed.

Netanyahu touched a raw nerve with the amendment — and not just because of its security ramifications. It comes at a time when he is seen as widening his powers in various areas, making it, in the opinion of Amichai Cohen of the Israel Democracy Institute, “a problem in the current atmosphere.”

Netanyahu has been criticized for weakening Israel’s foreign service and consolidating power over foreign affairs in his office, as he serves as both foreign minister and prime minister.

And he is trying to strengthen his government’s ability to pass controversial legislation, by weakening the Supreme Court. Currently, the Supreme Court can declare legislation unconstitutional, but a new bill could allow Knesset to revive bills after the Supreme Court has thrown them out. His own war powers amendment could be the first case.

“The legislation will enable two people to take not only the State of Israel into war, but all the countries in the region.”

But while some analysts think that Netanyahu is challenging democracy, others say the opposite. Efraim Inbar, president of the Jerusalem Institute for Strategic Studies, a conservative security think tank, believes that when dealing with sensitive intelligence, “the fewer decision makers the better” — both for national security and also for democracy.

Inbar thinks that the more politicians who are party to security information, the more that it is used for political ends, and said that during the Israel-Hamas conflict of 2014 there was a “political circus” with different politicians using their soapboxes for different political ends.

Confusingly, in some respects the new war powers act makes the prime minister more reliant on the government. Until now the basic law only outlined the need for a government decision to “begin a war,” and did not mention other military scenarios. Following the new amendment, other military action which may, most likely, lead to a war, also needs government approval.

If a future confrontation with Iran begins with a strike and escalates, rather than starting with all-out declaration of war, the Knesset has seemingly increased the amount of oversight that is expected.

On the other hand, the amendment said that instead of needing a full cabinet for decisions, a security cabinet of just half the ministers may be used, and “under extreme circumstances” it may be just the prime minister and defense minister.

This means that if Netanyahu and Lieberman can come up with reasons why they needed to make decisions alone, they may be able to justify doing so. But for Cohen, the expert on security and democracy, it’s unclear why such a provision would be needed. “This does not make any sense in my opinion,” he said. “This is not needed, and there’s no reason for it.”

Bibi Netanyahu. Getty Images

Netanyahu associates claim otherwise, and his Likud colleague Avi Dichter said: “Without flexibility there is no real ability to function.” Lieberman says that Israel should be able to act as quickly as its foes, which do not wait on cabinet decisions.

It would be out of character for Netanyahu to use the new clause, especially for actions that his cabinet doesn’t back. “We should acknowledge Netanyahu is not trigger happy; he’s very cautious,” said Inbar, voicing a view that is heard on the left as well as the right. And Cohen pointed out that Netanyahu actually likes to have his cabinet on board for decisions, in order to water down responsibility.

With instability here as it is, we may find out relatively soon if Netanyahu wants to actually use his new power. But let’s also remember that this amendment isn’t just for Netanyahu.

It’s enshrined in a basic law, the closest thing Israel has to a constitution, and applies to all future prime ministers. As U.S. politics shows, you can’t predict who is headed into office and how he or she will use the power they will have.

Nathan Jeffay’s column appears twice a month.

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