High Court of Justice 23426-04-26 Uri Elmakis v. Prime Minister - part 19

Judge

Judge Alex Stein:

1. In the reality of "everything is in the air", it is no wonder that appointments to senior public positions invite complainants, slanderers, and aspers, who answer in the name of "public petitioners", who raise grievances before us regarding every defect and every fault that they believe they have found in the winner of the position or in the process of his appointment - while asking us, on behalf of the entire public, to cancel the appointment. Some of these matrons have full or partial justification, and some have no justification at all.
2. In the present case, the petitioners who are before us seek to disqualify the appointment of respondent 5, Maj.   Roman Goffman, to the position of head of the Mossad.  Hearing the allegations raised against Goffman, most of which are rooted in rumored reasoning and testimonies, and after I turned and turned through the many documents that were placed before us , I got the impression that the petitions we are dealing with have no substance and should be rejected.
3. Together , the petitioners' arguments constituted a failed attempt to attribute to Goffman a failure in the test of moral integrity. Major General Goffman's critics did not provide clear and convincing evidence that could substantiate, with signs and wonders, their claims that in his capacity as commander of the 210th Division, Goffman knew about the intelligence operation of a minor civilian - as opposed to an adult "blogger" - by his subordinates; and when he heard that the operator had been arrested on suspicion of committing serious security offenses, he chose to conceal the act of the operation, deliberately filled his mouth with water.  And as the petitioners claim, he even went so far as to tell a lie in this regard.
4. Documents and testimonies collected in our case paint a completely different picture: Maj.   Goffman, apparently, gave his approval for the operation as a second hand, without being interested in the details of the "blogger" that an officer from the division's intelligence wanted to operate, and in the name of the Internet platform through which the "blogger" was supposed to operate.  This is what we learn, inter alia, from the agreed fact that Goffman was not, at any point in time, in direct contact with the "blogger", Mr. Almakais; and this is also learned from the words of Maj.  Gen.  Amir Baram, the commander of the Northern Command at the time, who conducted an inquiry in real time regarding the leak of information from his command, that he wholeheartedly believes to Goffman that at the time of the operation of Almakais ("the blogger") Goffman was not at all aware that he was a minor.
5. In addition, the totality of the data laid out before us shows that General Goffman's mindset, at the relevant point in time and in general, was not one of non-disclosure and concealment. It can be assumed that during the short telephone conversation between the head of the Operational Operations Brigade, Brig.    G., and Goffman, the latter's thoughts were focused on ongoing security matters that were under his responsibility as a division commander, and they erased the operator - the "blogger", who, as noted, was recruited by an officer from the division's intelligence - from his heart.  It is clear that Goffman had no malicious desire to harm that "blogger" or to conceal his approval of his operation by his subordinates.  This can be deduced, inter alia, from the affidavit of the Operating Operations Commander andfrom the memorandum that was attached to it - the most reliable evidence from real time - in which N.said that during the conversation, Goffman suggested that the Operating Commander "check the matter with his people in order to give a definite answer".  Moreover, as soon asGoffman learned that an officer from the division's intelligence was being investigated in connection with the Almakais affair, he explicitly admitted that he had given his approval for the operation.  This general approval was given by Goffman, it seems, without checking the identity of the "blogger" and without much thought.  In this context, it is important to emphasize that Goffman instructed the officer from the division's intelligence not to provide the "blogger" with any confidential information - a fact that also explains Goffman's negative answer to the general question that was addressed to him regarding the publication of intelligence information on the Telegram platform, during a conversation about the division's involvement in the affair at the center of the leak of confidential information.
6. As to the claim that Goffman committed a sin in violating the moral principle of "one does not abandon the wounded in the field" - I am of the opinion that there is nothing between this serious accusation and Goffman's actions. As mentioned, Goffman assumed full command responsibility for the actions of the officer from the division's intelligence in the context of the affair immediately after the first interrogation of the officer in the ICBM.  In this context, Goffman stated that he had given his approval for the operation of the "Blogger" and thus, in effect, confirmed that Almakais had been operated by the division in one format or another.  Goffman is not a law enforcement officer; He is not authorized to intervene in criminal investigations, and in any case it is not appropriate for him to do so.  Goffman did what he was tasked with and gave the information regarding the operation to the authorized officials in the IDF who were involved in the investigation of the affair, so that they could do it wisely.  Moreover, real testimony provided to us by the head of the Operations Division, the reliability of which cannot be doubted, showed that Goffman was explicitly asked not to intervene in the investigation of the affair when this investigation was conducted.  As noted, Goffman's offer to investigate the involvement of members of his division in that affair was rejected in order to maintain the confidentiality of the investigation.  I will add and emphasize that the affair in which Almakais was charged was entirely connected to the leak of classified intelligence information from an IDF source other than the 210th Division, when Goffman assumed - and was entitled to assume - that the officer from his division's intelligence acted according to the clear, and only, instruction he gave him: not to pass on any classified information to the "blogger."
7. I will admit and will not deny: Goffman gave his approval to operate the "blogger" to an officer from the division's intelligence without clarifying details about the operator and his activity, which should have been clarified, and without verifying that he was not a minor. Granting such approval - which is like an open check - is undoubtedly negligence and a failure of command.  However, between negligence and command failure and an act that is contrary to the purity of morals, which is based on intentional intent, there is a light year distance.  In a reality of constant security tension on the northern border and of a rapid and incessant flow of security information and fateful military events and decisions, only those who do nothing are never wrong and are not negligent.  Negligence and command responsibility are obviously not a source of pride and commendation, but they do not cast doubt, even the slightest, on Goffman's integrity.
8. In other words, General Goffman acted in good faith, with his mouth and heart equal. I am of the opinion that we cannot avoid this conclusion even if we proceed from the assumption - which is largely correct - that the determination of the facts by the committee that discussed the Goffman case (hereinafter: the senior committee) was not at its best.  This conclusion will continue to be necessary even if we judge the integrity of Goffman's character on the basis of the facts - as opposed to mere doubts and conjectures - which were determined in his duty by President   Grunis in the minority opinion he wrote.  These facts show that Goffman made a mistake in granting permission to operate the "blogger"; And even if we add to his duty and assume that his mistake was a serious mistake - even given all the pressures under which he was subjected as commander of an active combat division - we cannot attribute to him a deliberate act that devoid of integrity and deviates from the purity of character.
9. The matter of the petitions before us is judicial review of the decision made on the matter of the integrity of Major General Goffman by the Committee of Senior Officials - and nothing more. Given the integrity of the situation, the person who is supposed to appoint, or not appoint, Goffman to the position of head of the Mossad is the prime minister of Israel; He - not us.  The Prime Minister's decision regarding such appointment is decisive.  The examination of the professional aspects of this decision is not up to us or to anyone other than the Prime Minister.  For this reason, I reject with both hands the improper attempt to turn the proceeding before us into the "Goffman Trial", the purpose of which is to determine whether Goffman is worthy of heading the Mossad.  This experience was expressed, for example, in the submission of a letter from the outgoing head of the Mossad, which expressed his opinion regarding Goffman's suitability to head the organization; I will admit that I found it very difficult to understand the position of the Attorney General (hereinafter: the Attorney General), who was of the opinion that a review of this opinion would assist us in judicial review of the Committee's decision in the matter of Goffman.
10. I would also like to address, briefly, the Attorney General's argument that we should prefer the minority opinion of President Grunis over the majority opinion of the members of the Committee , in light of his extensive experience as a judge. This argument is not an argument.  Government Resolution 3839 "The Advisory Committee for Appointments to Senior Positions and the Repeal of Government Decisions" of May 27, 2018 - in which the Senior Committee operates - did not grant priority status to the minority opinions of those who chair the committee; We must not invent a "legal rule" that does not exist in reality or give a seal to such a rule.
11. The decision of the committee in question did indeed have some flaws in the collection of evidence, as stated in the opinion of my colleague, Justice Grosskopf, but in my opinion, these flaws do not get to the root of the matter. These flaws are very far from the "red zone" in which there are grounds by virtue of which the committee's decision can be overturned.  In these circumstances, I am of the opinion that no clear ground has arisen for interfering with the discretion of the Senior Committee or the Prime Minister's discretion.
12. I cannot conclude my judgment without referring to the offensive remarks that were made before us during the hearing of the petitions by the Movement for Quality Government's attorney, Adv. Eliad Shraga, in relation to Maj.   Goffman: "...  Goffman turns out to be a racist.  [...] We are constantly looking only at the integrity of the morals, and we forget that we are also dealing with a decision by the prime minister, that a decision must be made whether he takes the head of an institution who is a radicalist" (see the minutes of the hearing of May 12, 2026, page 29, lines 13 and 22 (emphasis added).  It seems to me that no one will dispute that Goffman is a man of great achievements who devoted his best years to the security of the state and even risked his life for it.  How, then, is it possible that someone who comes to our gates in his hat as a "public petitioner" refers to Major General Goffman, without any factual or legal basis, as a "serial offender" and this grave accusation is recorded in the transcript of the Supreme Court hearing as a matter of routine?
13. An exhaustive answer to this question is related to the manner in which, in my view, it is appropriate to conduct public petitions, in order to ensure that those who manage such petitions faithfully promote a general public interest, as opposed to a narrow sectoral interest or a partisan interest of one kind or another. In other words, public representatives in public petitions must meet requirements similar to those that apply to lawyers representing plaintiffs in class actions - demands that are intended to ensure professionalism and fairness and to prevent conflicts of interest (see the judgment of my colleague, Justice Grosskopf, Other Municipal Motions 1582/20 Halfon v.  Oil and Gas Resources Ltd., paragraphs 51-54 (December 29, 2021); See also Alon Harel & Alex Stein, Auctioning for Loyalty: Selection and Monitoring of Class Counsel, 22 Yale Law & Policy Review 69 (2004)).  One of the means by which public petitions can be used to ensure that public petitions serve supra-partisan national interests is to award significant expenses to those who violate the requirement of fairness.  Expenses that should be awarded in this framework must reflect the severity of the violation of the fairness of the proceeding and the costs imposed on the person who is required to defend himself against defamation of his name in public.
14. Therefore, I am of the opinion that it would be right to oblige Petitioner 1 in High Court of Justice case 39686-04-26, the Movement for Quality Government, to pay Respondent 5, Maj.   Goffman, expenses in the total sum of ILS 70,000.  I am aware that my opinion on the matter of expenses is that of the minority, and I respect the position of my colleagues, which is different from my own.  Under these circumstances, I have no choice but to repeat the saying that is common in the mouths of minority judges: Today's minority opinion is tomorrow's majority opinion.
15. Subject to the foregoing, I attach my opinion to the conclusion reached by my colleague, Justice Grosskopf, and to the main reasons for it.