Part II of a III-part series.

In the previous article on the subject of Israel's Deep State, we explained what the deep state in Israel is. In this article, we will try to explain how the deep state was born in Israel and why, although not exclusively, it chose to focus on the legal system.

The year was 1977 and the State of Israel was in turmoil. After decades in which the Mapai (Labour) party ruled the State of Israel uninterrupted since the founding in 1948, a relatively new party, the Likud Party (founded in 1973), won the Knesset elections. To understand the significance of Mapai rule, it is important to know Mapai roots. With all good intentions, Mapai was the creation of Zionists who came to Israel from Eastern Europe and Russia, who came with the vision of really creating the utopia that did not materialize in their country of birth. That utopia was communism, which has always grown among people who “understand why it didn’t work there” but also know that “because they have a better way of doing it, we can make it work here”.

And how did it work in Israel?

On the one hand, we are all familiar with the Kibbutz model, which is the manifestation of communism at the community level. Mapai was the same ideas at the government level and ruled until 1977 as the “natural rulers”, with the right to rule. Under the common centralized government concept, Mapai was not just a government in the Israeli Knesset; the party's members controlled all the important positions in the Israeli economy. In fact, it was very rare for someone who was not a party member to reach a senior position in the public sector, and party membership was a kind of threshold "condition" for significant positions in society. One big Kibbutz.

In that context the Likud victory was not simply upsetting the apple cart, it was catastrophic and was called the "upheaval". Suddenly, after decades of control, it occurred to Mapai leadership that Mapai could not count on always controlling Israeli politics and winning democratic elections. Was there a possibility this could also happen within the bureaucracy, the labour unions, society as a whole? Its members needed to recalculate the course of how they would manage to govern "despite" democracy at the level of the Knesset. Mapai would have to be able to rule from another podium.

Ruling is power, the power of decision making, and the power to tell people what they must do. There are three loci for such power, first the Knesset and second, the courts. Recognizing the impermanence of Knesset power that relies on newly unpredictable regular elections, Mapai turned to the courts, the other locus of power, the Israeli judicial system.

At the same time, they acted to strengthen their grip on the third power base, the bureaucratic class that they had dominated on a continual basis, which is also unelected and has a permanence aspect. Bureaucrats would have the power to prevent politicians from fulfilling the goals for which they were elected. They acted to prevent the possibility of firing those officials, and of course made sure that only the "right" people would be hired.

Recent discussion about this explored the inability of the Menachem Begin/Likud government elected in 1977 to enact the legislation they proposed and was censored because it was considered uncomplimentary to PM Begin and his efforts. In fact, the discussion was a realization of the power of the bureaucracy that stifled the Likud initiatives more than criticism of Begin who erroneously thought “now I’m Prime Minister, I will get to direct the government”.

Returning to the courts, the challenge posed was how to gain and retain absolute control of the courts. The 2 keys were the justice appointing committee and the appointees. Mapai, and their foreign supporters came up with a devastatingly simple, and effective solution, the Lawyers Program, in partnership with the New Israel Fund. It was established in 1982, a few years after the "upheaval" and the Lawyers Program operated beneath the surface for about 30 years until it was exposed by the Legal Forum for Israel. Its goal was to ensure that senior lawyers in the public service would identify with and be indebted to the New Israel Fund, and the mechanism was simple. Every year, The New Israel Fund selected young promising lawyers from within the public service and provided full funding, tuition, room, board and all expenses, for them to earn a master's degree in law at one of the best universities in the United States. In return, the lawyers committed, upon completion of their studies, to volunteer for one year at one of the organizations supported by the New Israel Fund.

It was a brilliant plan, the pool of lawyers was preselected by the bureaucracy, would earn an advanced degree that was well beyond the means of most Israelis, and virtually ensured their access to the best private and public positions within the legal system. The organizations the candidates worked in included Adallah, legal representation for terrorists, Doctors for Human Rights, which, amongst other things, petitioned the Supreme Court on behalf of Hamas after October 7, and other anti-Israel organizations that operate in Israel to harm it from within. By the time they graduated from the Lawyers Program they were inculcated in the values of the New israel Fund, and were well on their way to being established in the state systems as senior attorneys, legal advisors, and judges.

The scheme was exposed when in 2010 the Legal Forum encountered a situation in which a petition was filed with the Supreme Court by the Adallah organization against the Knesset's decision to disqualify the Balad party (Islamist) from running in the elections. It is important to note that the majority of Balad’s Knesset members had been convicted of serious offenses against the State of Israel, including espionage for Hezbollah. In black and white, according to Israeli law these convictions disqualify them from running for the Knesset.

There are three parties involved in such a case, the attorney for, the attorney against and the judge. The attorney for, who represented Balad was a graduate of the New Israel Fund's Lawyers Program. The attorney against, the head of the High Court of Justice Department, who is responsible for the representing the state before the Supreme Court, was also a graduate of the program and had previously worked with Adallah's attorney. Instead of representing the state’s position, a slam dunk to disqualify Balad, the attorney from the High Court of Justice, whose background was unknown to the general public, argued against the disqualification. As there was no case presented showing that Balad should be disqualified, the judge ruled against the disqualification. Once made, such rulings set precedent, and this ruling was a significant judgements that affects the nature of the State of Israel to this day.

Hidden from the majority of people, the deep state established its power within the legal system, creating a legal structure that operates independent of the Knesset, and sometimes in direct contradiction to it, as Menachem Begin found out.

To establish power, you need not only suitable people, you must also provide them with the means to rule. To rule is to make the law, to judge is to apply the law. The former was the domain of the Knesset, while the latter belonged to the judiciary, but over the years, the judiciary has arrogated more and more power to itself through court rulings that may have seemed insignificant to the lay person, but have created powers for the Attorney General and the Supreme Court to the point that they have become a totally unaccountable ruling authority. These tools have given the judicial system absolute power to act and do as they wish in the country, annulling, ignoring or contradicting the elected officials.

Judge Aharon Barak, who is responsible for much of the power of the deep state, once quoted Alexander Hamilton who famously wrote in the Federalist that the court has neither a purse nor a sword, meaning that it does not have the economic ability to act nor does it have the ability to implement its rulings without the cooperation of the other authorities. Unfortunately, this is no longer the case.

For many years, with the help of the Supreme Court rulings and their people entrenched in other areas, the deep state in the judiciary has shown that they have already reached a situation where they have both a purse and a sword which they use to terrorize elected officials. To maintain their position as the “natural rulers” investigations are routinely opened against elected officials who try to undermine the power of the deep state or fall out of favor with them.

When Reuven Rivlin was under consideration for the position of Minister of Justice, investigations were publicly opened against him. Upon experiencing the manner of investigation, Rivlin called the prosecution and police ‘scoundrels under the rule of law’. The vast majority of cases against elected officials and those who oppose the deep state have the intended effect of neutralizing the parties and are later, quietly closed, after the goal of the deep state is achieved. People understand the message, resign from their positions, and power remains in the hands of the people behind the scenes. This is the method of the deep state, which we will elaborate upon in the next article.