High Court demands documents to review Mossad chief’s appointment, but unsure it can intervene

Asking why key questions weren’t raised by selection panel, justices order IDF officer to file affidavit over claim Roman Gofman lied to army and abandoned a jailed teen he had worked with in 2022

At a hearing Tuesday on a petition against the appointment of Maj. Gen. Roman Gofman, as the new Mossad chief, the High Court of Justice demanded to receive all documentation reviewed on the matter by the Senior Appointments Advisory Committee.

It further ordered that an affidavit be filed no later than May 17 by a former brigadier general in the IDF’s Military Intelligence, detailing what Gofman told him regarding a controversial 2022 incident at the heart of challenges to Gofman’s appointment.

The orders came following a six-hour hearing on calls for the court to cancel Gofman’s appointment on the grounds that his ethical conduct in the incident makes him unfit to serve as head of the spy agency.

Although the justices were skeptical of their own authority to intervene in the appointment, the orders they issued after the hearing appeared to be designed to help the court determine whether the appointment’s committee failed to properly review the incident in question, and whether, by extension, Gofman had engaged in unethical conduct, which would invalidate his candidacy.

During the course of the hearing, the three High Court justices reviewing Gofman’s appointment repeatedly expressed concerns about the court’s ability to intervene in what has become a controversial appointment.

Gofman’s pick by Prime Minister Benjamin Netanyahu has been beset by allegations of wrongdoing over an incident during his time as commander of the IDF’s 210th “Bashan” Regional Division in the Golan Heights.

He is scheduled to take up his post on June 2, leaving the court little time to deal with the case.

Although the justices seemed reticent to intervene, one possible avenue may be for the court to ask the advisory committee to review its decision and obtain answers to key questions over Gofman’s conduct.

In 2022, Gofman approved the use of a then-17-year-old boy, Ori Elmakayes, for an Arabic-language influence campaign against Iran, Hezbollah and Hamas. Elmakayes was asked to publish classified material online since his social media channels were read by enemy elements inside Syria.

Elmakayes was arrested and interrogated by the Shin Bet and has claimed he was tortured during the process. He was kept in solitary confinement for two months and under different forms of detention for some 18 months before the charges were eventually dropped after his lawyers belatedly managed to prove that he had been working with the IDF.

An IDF investigation was conducted into the affair, in which Gofman said he had not known Elmakayes’s identity or the specifics of the operation. The investigation resulted in Gofman receiving a disciplinary note in his record.

Elmakayes has lambasted Gofman for failing to intervene and inform the law enforcement agencies that he had published the information with the consent of the IDF, and accused Gofman of lying to the IDF investigation that he did not know who Elmakayes was.

Elmakayes’s petition against Gofman’s appointment asserts that the general’s conduct was ethically flawed, and argues that the Senior Appointments Advisory Committee failed to properly assess Gofman’s moral appropriateness for Mossad chief through its failure to examine whether Gofman did or did not lie to the IDF investigation.

The appointments committee recommended, in a majority three-to-one opinion, that Gofman’s appointment be approved, although the committee chair, retired Supreme Court president Asher Grunis, voted against the appointment and strongly implied that Gofman had not told the truth about the incident to the IDF.

During the hearing, Elmakayes’s lawyer Orit Hayoun challenged the committee’s work, pointing out to the judges that Elmakayes had submitted five requests to the panel to give his version of events and that the committee had rejected every request.

Hayoun demanded to know why the committee had not asked an officer known as Maj. Tzur, who had been Elmakayes’s handler and knew of his arrest, whether or not he had told Gofman specifically that Elmakayes was facing legal charges over his cooperation with the IDF.

Justice Alex Stein insisted, however, that the committee had not been obligated to hear Elmakayes since it was “not a court” and that it was acceptable for the committee to rely on external material.

Stein similarly rejected Hayoun’s effort to have a letter by outgoing Mossad chief David Barnea against Gofman’s appointment submitted to the court, pointing out that Barnea has no legal involvement over the appointment and that his opinion was therefore irrelevant.

One of the appointments committee members, academic Talia Einhorn, was permitted to address the court and was asked by the justices why the committee had not invited an intelligence officer who had spoken with Gofman about the incident at the time to tell the committee what Gofman had known.

Einhorn said the reason was that “human memory is weaker than documentation,” leading Justice Ofer Grosskopf to quip sardonically that Einhorn was ushering in an “interesting revolution in Israeli law,” by negating the use of witnesses.

At the end of the hearing, the justices decided to allow Elmakayes to address the court briefly about his ordeal, although they told him not to speak about any claims he had over the facts of the affair.

Elmakayes said that he had worked with the IDF “for the security of the state,” and accused Gofman of having abandoned him during his legal ordeal that resulted from that work.

“My struggle today is also for the sake of the country and for Mossad agents,” Elmakayes told the court.

“Gofman abandoned me and did not cut short the ongoing nightmare I experienced… The danger that a Mossad agent is in is many times greater than what I went through… My fight is for the Mossad agents, who if abandoned face death, and for the security of the entire country.”