The fight over changing Israel’s justice system has caused enormous damage to relations with the United States. If Israel is not careful, it could get worse.
The judicial overhaul the current Israeli government has been proposing and the mass protests against it triggered a rift in the nation and a severe crisis in relations with the United States. The combination of the two has caused severe damage to Israel’s national resilience and a dangerous erosion of its deterrence against enemies near and far. The US did not want to get involved in the controversy, but President Joe Biden was forced to change his policy due to a genuine concern for the security and welfare of Israel, Prime Minister Benjamin Netanyahu’s disregard of a series of American requests, and warnings and offensive comments made by ministers and Knesset members of the coalition. This article analyzes the causes of the crisis, its development, and immediate consequences.
Following the last election and even after the problematic coalition agreements were revealed, the US said it respected the election results and would work with any legally elected Israeli government. In this seemingly indifferent position, there has been a dramatic change. Biden has adopted a more active policy. Almost his entire national security leadership visited the country in January and early February: Secretary of State Antony Blinken, National Security Adviser Jack Sullivan, and CIA Director Bill Burns. They came to check on what was happening in Israel and prepare for Netanyahu’s visit to the White House, scheduled for the end of February. They expressed concern about the right-wing government Netanyahu established, the judicial overhaul and mass protests against it, and the tense and violent situation with the Palestinians. They all emphasized that the close relationship between the US and Israel is based on shared interests and values. Netanyahu assured them he controlled the coalition and would moderate the judicial overhaul. The Biden administration did not trust Netanyahu but hoped he would keep his commitments for the sake of Israel’s vital security interests and relationship with the US.
What does the US want?
The establishment, strengthening, and maintenance of democratic regimes have always been primary moral goals of American foreign policy. Democrat and Republican administrations have always justified significant support for Israel partly because it is the only democracy in the Middle East. Following criticism in Israel, the Biden administration has viewed the overhaul as a severe blow to Israeli democracy.
At a joint news conference on January 30, Blinken explained to Netanyahu how the US defines democracy: “Throughout the relationship between our countries, what we come back to time and again is that it is rooted both in shared interests and in shared values. That includes our support for core democratic principles and institutions, including respect for human rights, the equal administration of justice for all, the equal rights of minority groups, the rule of law, a free press, a robust civil society – and the vibrancy of Israel’s civil society has been on full display of late.” In American eyes, the judicial overhaul did not meet these standards.
After almost two weeks in which Netanyahu failed to keep his promises and seemed to drag the extreme elements into his coalition government – National Security Minister Itamar Ben-Gvir and Finance Minister Bezalel Smotrich – Biden decided to express a more explicit position on the essence and process of the proposed overhaul legislation. On February 12, he sent the following statement to The New York Times’s Thomas Friedman: “The genius of American democracy and Israeli democracy is that they are both built on strong institutions, on checks and balances, on an independent judiciary. Building consensus for fundamental changes is really important to ensure that the people buy into them so they can be sustained.” Biden criticized the proposed violation of the balance between the branches and the hasty path of legislation without broad agreement among all sections of society. Such legislation, he said, would not last because a future government could quickly repeal it just as the current one does.
After President Isaac Herzog published a compromise outline on March 15 for resolving the dispute, the US saw it as an opportunity to achieve broad consensus for the overhaul and welcomed it. The plan demanded a moratorium on the legislative process and called for negotiations between the coalition and the opposition. On March 16, Blinken repeated his call for a consensus building around the overhaul.
John Kirby of the National Security Council said: “The genius of our democracy — and frankly Israel’s democracy — is that they are built on strong institutions, that they include checks and balances that foster an independent judiciary. We support President Herzog’s ongoing effort to seek a solution that is consistent with those same democratic principles.”
Biden reiterated his concerns when he spoke with Netanyahu on March 19 and repeated the messages he and his aides conveyed in February. He underscored his belief that “democratic values have always been, and must remain, a hallmark of the US-Israel relationship, that democratic societies are strengthened by genuine checks and balances, and that fundamental changes should be pursued with the broadest possible base of popular support.” Biden offered support for efforts to forge a compromise over the judicial reform, as long as “they were consistent with those core principles.”
Netanyahu rejected Biden’s position, which amplified the White House’s frustration. All along, the US has not criticized the overhaul itself but rather the quick and arbitrary way the Knesset handled it, which led to protests and demonstrations on an unprecedented scale.
On March 28, after stormy protests over the dismissal of Defense Minister Yoav Galant and Netanyahu’s decision to freeze the legislation, Biden responded: “Like many strong supporters of Israel, I’m very concerned. I’m concerned that they get this straight. They cannot continue down this road. I’ve sort of made that clear. Hopefully, the prime minister will act in a way that he can work out some genuine compromise,” adding, “that remains to be seen.” He also vehemently said that he did not intend to invite Netanyahu to the White House in the near future.
Netanyahu again rejected Biden’s advice. He noted Biden’s “longstanding commitment to Israel,” but added: “Israel is a sovereign country that makes its decisions by the will of its people and not based on pressures from abroad, including from the best of friends.”
“It is sad that President Biden also fell victim to fake news spread in Israel against our justified judicial overhaul,” Culture Minister Miki Zohar wrote on Twitter. He later deleted the tweet, writing: “Out of respect for our important relationship with our greatest ally, the United States, I deleted the tweet. It breaks my heart to see how much damage has been done to Israel from all the fake news that has been disseminated in connection with our justified judicial overhaul.” Zohar twice wrote that Biden did not know or understand what was happening in Israel, and that his positions were determined by fake news. This was a false and insulting statement. The US well knows at all times what is happening in Israel.
“The Americans need to understand that Israel is an independent country and not just another star in the flag of the United States,” said National Security Minister Itamar Ben-Gvir. “It must be clear worldwide that the people here went to an election and have their desires.” That was another Zohar-like insulting preaching. The US considered Ben-Gvir a supporter of Rabbi Meir Kahana’s organization, which was officially declared an outlawed terrorist organization.
Likud MK Dan Illouz wrote a ridiculous protest letter to members of Congress in which he tried to teach them about the separation of powers and what parliamentary oversight of the executive branch should look like. Another Likud MK, Nissim Vaturi, called the US criticism “improper,” and asserted: “We are probably a bit more democratic than the system there.” Regarding Israel’s dependence on US backing, Vaturi said: “If we need to protect ourselves, we will do so without the US if it doesn’t support us.” Several other ministers and Knesset members in the coalition think like him.
These unnecessary statements ignored Israel’s near-total dependence on the US for weapons, military aid, deterrence, trade benefits, scientific exchanges, and cooperation and diplomatic protection in hostile international organizations like the UN. Netanyahu failed to condemn these outrageous statements, creating the impression in Washington that he agreed.
Opposition leaders criticized the government. “For decades, Israel was the closest ally of the US,” tweeted opposition leader Yair Lapid. “The most extreme government in the country’s history spoiled this in three months.” Benny Gantz, leader of the opposition National Unity party, called Biden’s comments “an urgent wake-up call for the Israeli government. Damage to our ties with the US, our closest friend and our most important ally, is a strategic blow.”
Herzog also criticized the anti-American statements: “The United States is very important to us. Anyone who thinks that the US can be poked in the eye should remember that it is a very important superpower to us, and our alliance is a cornerstone of our security.”
Sanctions
When Netanyahu and his government ignored the American positions, the Biden administration imposed sanctions. Smotrich planned to visit the US on March 12 during an Israel Bonds conference. When a senior Israeli minister arrives in Washington, he usually meets with his counterpart and often with other senior administration officials. The Biden administration announced that no one would meet with Smotrich. In soccer, this decision is a red card; in diplomatic terms, it means persona non grata. The administration hinted to Smotrich that, given this position, he should cancel his visit. He ignored it, and the visit, during which he gave a speech in broken English, demonstrated the extent of the crisis in US-Israel relations. When the administration boycotted Israel’s finance minister, it sent a negative message to investors, bankers, and entrepreneurs, who had already been concerned about the implications of the overhaul on the Israeli economy.
Smotrich deservedly earned the red card sanction: when a Palestinian terrorist killed two Israeli brothers on February 26 in the middle of the West Bank town Hawara – where many terrorist attacks against Israelis have originated – Smotrich said the town should be “wiped out.” He was talking to his political base without thinking about the possible diplomatic fallout from his statement. State Department spokesman Ned Price said that Smotrich’s comments were “irresponsible” and “repugnant” and that the US was calling on Netanyahu and other senior Israeli officials to “publicly and clearly reject and disavow these comments.” The US ambassador to Israel was quoted saying even harsher words: “I’m really angry with him. He’s stupid. He has a flight to Washington with Danny Nave, and if I could, I’d throw him off the plane.” From the Jewish community, 120 organizational leaders, including former heads of AIPAC, the pro-Israel lobby in Washington, and the ADL, called on Biden not to allow his officials to meet with Smotrich. Those calls widened the cracks in the foundations of US support for Israel.
Every Israeli prime minister arrives in Washington shortly after the formation of the government. Such a visit is symbolic and practical, demonstrating Israel’s close and special relationship with the US. The visit also facilitates discussion and coordination on vital intelligence and security issues. These are reflected in joint statements to the media. Netanyahu was supposed to leave for Washington at the end of February, but he did not receive an invitation, contrary to his expectations.
Moreover, Biden himself and his spokesmen announced that there are no plans to invite him. Ignoring Netanyahu was a response to his government’s disregard for the messages and warnings sent to him by Biden and his senior staff. The postponement of his visit was a message of criticism and the administration’s dissatisfaction with Netanyahu’s conduct. He then had no choice but to instruct his ministers not to visit Washington until he received an official invitation to visit the White House.
The message from the US caused considerable damage, and not only to Israel’s standing with its most important ally. Many countries, especially in the Arab world, maintain relations with Israel to improve their standing in Washington. The lack of visits and official talks with the US administration at the prime minister and ministerial levels also damaged those relations.
When US Ambassador to Israel Tom Nides suggested slowing down the legislation and basing it on broad consensus, Diaspora Minister Amichai Chikli responded, “Mind your own business.” It is hard to believe that Chikli did not understand what he was saying. Smotrich also responded to the ambassador’s recommendation: “We appreciate the alliance with the United States. We were careful not to interfere in their affairs, so I expect them not to interfere in our internal affairs, such as the division of powers between the defense minister and me. I can reassure the ambassador that a major part of the plan was drawn from American law.”
It is worth dwelling on these statements. First, the ambassador does not speak of his own accord. He represents the president of the US and American policy. Thus Chikli’s and Smotrich’s criticisms were leveled against the president, not the ambassador.
Moreover, the first part of Smotrich’s sentence is false, and the second part, at best, is manipulative deception. Netanyahu had previously intervened in American politics unprecedentedly: he strongly supported Republican candidate Mitt Romney for president in the 2012 election and Donald Trump in the 2016 and 2020 elections.
The deception concerns American law. Contrary to Smotrich’s words, most of the overhaul does not exist in American law, and therefore it was impossible to take the “main part of the overhaul” from the American experience. Smotrich was probably referring to politicians appointing judges in the US. That is true, but as will be clarified, it is only one component of a strict system of checks and balances. There are other significant differences between the separation of powers in the US and the proposed overhaul in Israel, which was designed to place complete control over the entire judicial system in the hands of the executive branch. Smotrich and other overhaul supporters selected one component of the US system and ignored the other checks and balances.
Why did the US intervene?
The US attempt to influence judicial legislation in Israel was rare. The Biden administration did not intend to take such a step, but circumstances in Israel and the US forced it on him: the scope and rush to legislation and the disregard of serious reservations experts presented to the Knesset Judicial Committee proved that Netanyahu did not live up to the promises he made to Biden and his people. Biden could not ignore the vast demonstrations in Israel against the legislation, the petitions of economists, jurists, political scientists, and security and military figures in Israel – such as the former heads of the National Security Council, the Mossad, and the Israel Security Agency – and statements and the withdrawal of funds by businessmen, and by hi-tech and start-up companies. Pro-Israel members of Congress and leaders of Jewish organizations appealed to Biden to take a stand against the overhaul. Religious denominations, Jewish Federations, and philanthropists who donated billions of dollars to Israel also expressed reservations and issued warnings.
Petitions and protests by prominent American scholars and experts further influenced Biden’s decision to speak out. One petition against the overhaul was signed by 150 jurists, all supporters of Israel concerned about its security and welfare. Among those who signed was Harvard law professor Alan Dershowitz, one of Israel’s strongest advocates worldwide. Law professor Irwin Kotler, a former justice minister of Canada who is also a prominent advocate for Israel around the world, said the overhaul would result in a “crippled democracy” in Israel, adding that Netanyahu’s claim that Canada has a clause overriding Supreme Court decisions was wrong and misleading because it has been limited to rare and exceptional cases.
A petition warning of the adverse effects of the overhaul on the Israeli economy was signed by 56 professors of economics and individuals who have held senior economic positions in the US. “An independent judicial system is a critical link in a system of checks and balances,” the petition stated. “Undermining it will harm not only democracy but also prosperity and growth.”
Moreover, Netanyahu asked economics professor Larry Summers, the former president of Harvard and finance secretary under president Bill Clinton, to publicly clarify that the overhaul would not endanger the Israeli economy. Summers refused, and in an interview with Bloomberg, said the opposite: “My sense is that Israel is walking too close to a ledge in the way this is being done, and by the time you are sure, you are too close to that ledge, it’s too late to repair the situation.”
Netanyahu dismissed protest petitions and professional opinions by an overwhelming majority of Israeli jurists and economists who warned of the repercussions of the overhaul as stemming from a “leftist ideology” and anti-government agenda. But many American jurists, economists, and scholars like Dershowitz, Kotler, and Summers cannot be labeled “leftists who oppose Israel.” Moreover, when the president of the US warned against the overhaul, it could have affected the decisions of investors and companies considering liquidating or reducing their businesses in Israel or withdrawing money from the country.
One of the first pieces of the overhaul was a proposed change over the selection of judges. The current selection committee is balanced among politicians from the coalition, the opposition, judges, and lawyers, while the reform calls for complete control of the process by coalition politicians. To justify this scenario, Netanyahu, Justice Minister Yariv Levin, and MK Simcha Rotman, chairman of the Knesset Judicial Committee, as well as senior coalition spokesmen, often claimed that politicians appoint Supreme Court justices in the US. Since these are educated people, one can only conclude that they are distorting and misleading well-known facts.
The US Supreme Court is quite different from its counterpart in Israel. It functions as a constitutional court and arbiter of relations between the 50 states and the federal government. It carefully selects only a few individual cases of critical importance. The US has a strict constitution. The changes proposed in the overhaul are very similar to amendments to the US Constitution, and it isn’t easy to pass them. Any amendment requires the cooperation of lawmakers from both major parties. To prevent arbitrary amendments, the Constitution requires two-thirds approval by both houses of Congress and approval by three-fourths of the US states (38 out of 50). Since 1789, only 27 amendments to the Constitution have been approved. The Americans were amazed at Rotman’s arbitrary and superficial discussion in the Knesset Judicial Committee. He would never have been able to conduct similar hearings in the House or Senate Judiciary committees.
Effects
There were other signs of further cracks in Israel’s standing in the US. Supportive public opinion has always been important in the American-Israeli special relationship. Congress has always reflected this support, which manifested in approving substantial military aid to Israel, pro-Israel legislation and resolutions, and parliamentary criticism of presidents who have adopted anti-Israel measures. A Gallup poll in February found a significant erosion in public support for Israel and a deepening of the rift with the Democrats. The survey partly reflected the debate over judicial reform and the tension in US-Israel relations.
The survey also revealed a dramatic change in American attitudes toward the Israeli-Palestinian conflict. To date, Israel has enjoyed a 2-to-1 gap in responses to the question: “In the Middle East situation, are your sympathies more with the Israelis or more with the Palestinians?” Gallup found that 54% were more sympathetic to Israel, while 31% were more sympathetic to the Palestinians. In 2020, the result was 60% versus 23% in favor of Israel, a 6% drop in the Israeli column, and an 8% increase in the Palestinian column.
The distribution of results between Democrats and Republicans is even more worrisome. For the first time, Democrats sympathized more with the Palestinians by 49%-38%. The net difference between the results of the two sides – 11% – is the worst ever recorded for Israel in this index. The result for the Republicans was 78%-11% in favor of Israel. But here too, there was also a decline because in 2020, the gap was 86% compared with 9% in Israel’s favor. It was equal among young people between 18 and 34, with 41% for each side. The survey found that most Americans, 55%-35%, support establishing a Palestinian state in Gaza and the West Bank. That is an unprecedented result in favor of the two states for two peoples solution. Republicans also saw a significant increase in support for this solution.
The US has distinguished between policy areas and ministers. Security cooperation has continued as usual. Chairman of the Joint Chiefs of Staff Mark Milley visited Israel on March 3, and Defense Secretary Lloyd Austin arrived on March 9. Both discussed the dangers of Iran’s nuclear program, but also the judicial overhaul and relations with the Palestinians. They were concerned over the possible negative implications of the overhaul on Israel’s deterrence. They also hinted that Defense Minister Yoav Galant is a worthy partner, while Smotrich, the second minister in the Defense Ministry, is not. The fear is that the crisis will trickle down and damage security relations as well.
The overhaul and the extreme ideological positions of Smotrich and Ben-Gvir toward the Palestinians have strengthened criticism and delegitimization of Israel among progressives and liberals. A progressive block hostile to Israel has gained power and influence inside the Democratic party, with a few of its members antisemitic. The progressive branch has long called for sanctions against Israel, especially conditioning military aid. The problem is not just the $3.8 billion the US grants Israel annually, which Israel uses to purchase advanced weapons such as F-35 fighter jets. If the Israeli government continues to ignore the US, the response could be a delay in supplying advanced weapons, reducing military coordination, and less protection of Israel in hostile international organizations.
A Look Forward
The government and the Knesset have not thoroughly discussed the negative implications of the overhaul on Israel’s foreign relations in general and on relations with the US in particular. This issue does not seem to interest Levin, Rotman, and others in the Likud. But it should have been of great interest to Netanyahu and should have been discussed, at least in the security cabinet and the Knesset’s Foreign Affairs and Defense Committee. Netanyahu has not taken the American positions and warnings seriously. The result could be harsh and devastating.
Biden’s harsh criticism of Netanyahu and his government exposed what has been boiling for some time – the Democratic administration is furious with Netanyahu for not keeping his promises. He belittled and ignored direct warnings that he heard from the president and his top foreign and defense aides. Irresponsible and provocative statements from ministers and Knesset coalition members only exacerbated the crisis. Biden’s rebukes of Netanyahu and his government on March 28 did not appear in a speech or were read neatly from a written document. They came spontaneously in response to questions from journalists. They represented, without diplomatic filters, what Biden was thinking of Netanyahu, and he is a president whom Netanyahu himself defined as one of Israel’s greatest friends.
The judicial overhaul progressed quickly and arbitrarily, and with it, the mass protests. Thousands of reservists, many of whom volunteers, announced that if the Knesset approved the final step in the legislation in the forthcoming summer session, they would resign from their duties. Under pressure from the mass protests and the US, Netanyahu suspended the legislation and agreed to a dialogue with the opposition. Yet he assured Ben-Gvir that the bill would pass more or less in its original format. Levin and other ministers made similar statements.
Netanyahu’s dismissal of Defense Minister Galant was the straw that broke the American camel’s back. Galant represented to the Americans the more moderate and businesslike side of Netanyahu’s government, in contrast with Smotrich and Ben-Gvir. A general heads the Defense Department, Lloyd Austin. He and Gallant speak the same military and security language. Galant, as well as Biden and Austin, are well aware of the harmful effects of the overhaul on the rifts between the people and inside the Israel Defense Forces. They read well the map of threats to Israel from Iran and its proxies in Gaza, Lebanon, Syria, and Yemen, whose declared goal is to destroy Israel. There is a danger that they will take advantage of the rifts in Israel, the weakening of the IDF, and the crisis with the US to strike Israel in the near future with a surprising and combined military blow from several fronts. Galant’s dismissal for presenting Netanyahu with an accurate picture of the deteriorating strategic situation stunned Washington. The Biden administration pressured Netanyahu to cancel the dismissal, which he finally did.
Netanyahu did not condemn the statements made by ministers in his government and Knesset members of his coalition against the US. The administration wondered which of these two explanations is worse than the other: if, contrary to his promises, Netanyahu does not control his coalition partners and the extremists control him, or worse, he did control them and allowed them to make anti-American statements. Biden’s reluctance to invite Netanyahu to an official visit to Washington is a real blow to Israel’s standing in the US, the Middle East, and worldwide. Biden’s message is that support for Israel is conditional on a broad agreement to end the battle over judicial reform.
Another cause of the crisis with the US is the policy toward the Palestinians. This issue deserves separate analysis, but it is sufficient to say that the American strategic interest is to prevent a general flare-up of violence and keep the two-state solution alive. Both Democrat and Republican administrations have always advocated this solution. The Biden administration understands that given the present conditions in Israel, the West Bank, and Gaza, there is no chance to resume negotiations, let alone reach an agreement to end the conflict. Yet, in their eyes, wide-scale expansion of Jewish settlements in the West Bank could kill the two-state vision. Biden fears that the goal of the current coalition, under pressure from ministers Ben-Gvir and Smotrich, is to do everything possible to prevent a Palestinian state.
Netanyahu’s government announced a plan to legalize nine illegal outposts and build thousands of dwelling units in the West Bank. In order to reduce the wave of terrorism and violence in the West Bank, ahead of Ramadan, the Biden administration initiated two meetings between Israel and the Palestinians in Aqaba and Sharm with representatives of the US, Egypt, and Jordan. They reached understandings, including the freezing of construction in the settlements beyond the government’s announcement, strengthening the Palestinian Authority, and renewing security coordination, but a moment later, Smotrich and Ben-Gvir spoke out against these understandings. The government also annulled the 2005 Disengagement Law, which made possible the Israeli withdrawal from Gaza and a few Israeli villages in the West Bank. Ben-Gvir and Smotrich declared their intention to return to Homesh, one of these settlements, and Minister Orit Struck went further and said that Israel should return to Gaza. In a rare move, Israel’s ambassador to Washington, Mike Herzog, was reprimanded. Americans see Netanyahu as primarily responsible for his coalition’s moves and expect him to take their positions seriously.
It is hard to believe that Netanyahu, who is well acquainted with US politics, does not understand the crisis and the severe consequences it has already inflicted on American-Israeli relations. He may think he could survive until the 2024 presidential election, hoping for a Republican victory, even perhaps the return of Donald Trump to the White House. But Biden will be president until January 20, 2025, and it is unclear whether a Republican candidate – Trump or someone else – would win the election.
The internal crisis in Israel intensified at a particularly bad strategic timing. Netanyahu wanted to expand the Abraham Accords, bring in Saudi Arabia and plan a military move that would stop or severely damage Iran’s development of nuclear weapons. The result of the overhaul and the protests led to the paralysis of his government. Israel is perceived as weak and in conflict with the US, and this may also be why the Saudis, through Chinese mediation, preferred to renew diplomatic relations with Iran and host a Hamas delegation. Netanyahu has not yet been invited to visit the UAE, and a meeting of the Negev Forum in Morocco has been canceled. These are all alarming signs of shifting alliances in the region.
Despite freezing the overhaul and beginning negotiations at the President’s House on an agreed compromise, Washington is not sure what the outcome will be. A broad consensus will likely minimize the crisis, but failed negotiation will worsen it. The overhaul and the American criticism and sanctions have already caused much damage to US-Israel relations. The two sides will have to reduce the tension. The greater burden is on Netanyahu because Israel cannot afford to lose US support. He will have to give more weight to the United States grievances, control extreme members of his coalition and make a concerted effort to ensure broad support for the judicial overhaul. Biden will have to moderate the US criticism and avoid excessive lecturing and intervention.
JISS Policy Papers are published through the generosity of the Greg Rosshandler Family.
Photo: IMAGO / ZUMA Wire / Matan Golan
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