Judge Dafna Barak-Erez:
- From the outset, the petitions before us were directed against the appointment of Maj. Roman Goffman to the position of head of the Mossad for Intelligence and Special Positions, and strived to ensure that it was determined, contrary to the opinion of the majority in the Advisory Committee on Appointments and Senior Positions, that there was a defect in his integrity (hereinafter, respectively: Maj. Gen. Goffman, the Mossad and the Committee). Like my colleagues Justices A. Grosskopf and A. Stein, I too am of the opinion that there is no room for us to grant the requested relief in full. At the same time, and unlike my colleagues, my position is that due to the flaws in the examination process in the committee, which have not been sufficiently corrected at the current stage as well, insisting that the examination be completed is necessary. Therefore, and given the short timetable that remains until the date on which the appointment is due to take effect, I am of the opinion that there is no way out of issuing an order nisi alongside an interim order. If my opinion had been heard, it would have been done in a way that would have served both the public interest and the candidate's interest.
- My starting point is identical to that from which my colleague Justice Grosskopf emerged: the question of a person's professional suitability for such a position is not left to our examination, and in any case the issue of Major General Goffman's suitability for the position is not before us nor for us to decide. In addition, I would like to be careful not to determine anything regarding the integrity of Maj. Goffman, who has many rights to defend the security of the state during his long years of service, during which he was even wounded. However, these rights do not obviate the obligation to conduct the examination regarding moral integrity properly. As I will clarify, this examination must be completed in order to be able to recite the blessing on the finished one.
- In short: I believe that both the State of Israel and Maj. Goffman himself are entitled to the completion of the examination process. A cloud must not remain on this issue.
- In his comprehensive opinion, my colleague Justice Grosskopf discussed the principles that apply to the work of the committee, as well as to judicial review of it. I accept these principles in their entirety. However, unlike him - and in view of the flaws in the committee's work, which he also noted - I do not believe that we can decide for ourselves the factual questions that remain in dispute, and which my colleague also discussed. This is all the more valid because, in my opinion, there is relevant material whose clarification has not been fully exhausted - including witnesses whose time was given to the committee and whose words were not heard, as well as the resumption of some of those who testified before the committee but were not presented with all the questions that should have been raised. All - as detailed below.
The Procedure for Examining the Integrity of the Head of the Mossad
- It is appropriate to return to the first concepts that underlie the work of the Committee, Respondent 3. Government Decision No. 3839 "The Advisory Committee for Appointments to Senior Positions and the Repeal of Government Decisions" (May 27, 2018), is the latest decision regulating the work of the committee, stating that its role is to give its opinion regarding the integrity of candidates for seven unique positions in the public service: the Governor of the Bank of Israel and his deputy, the Commissioner of the Police Police, the Commissioner of the Prison Service, the Chief of Staff, the Head The Shin Bet and the head of the Mossad. In these appointments, very broad discretion is given to the government echelon, but at the same time, the government itself has chosen to lead the process of examining the issue of integrity, in order to "ensure that no improper appointments are made" (paragraph B of this decision). As previously noted:
"The main role of the Advisory Committee is, therefore, to examine the proposed appointment in terms of moral integrity in the broad sense of this concept, both from the point of view of the person proposed for the position, from the point of view of the appointing body, and from any other possible aspect that may have to do with the question of moral integrity involved in its kind" (High Court of Justice 1570/07 Ometz Association) - Citizens for Good Administration and Social and Legal Justice v. Minister of Public Security, para. 3 (February 25, 2007), (emphases added) (hereinafter: High Court of Justice 1570/07)).
- It is difficult to overstate the importance of protecting moral integrity in public service, a principle that has been expressed extensively in the legislation and case law of this Court (see, for example: High Court of Justice 8948/22 Sheinfeld v. Knesset, paragraph 2 of the opinion of Justice Willner and the references there (January 18, 2023). See also: High Court of Justice 5893/12 Horowitz v. State of Israel - Minister of Agriculture and Rural Development, paragraphs 22-26 of my opinion (December 10, 2013)). This basic principle emphasizes the importance of the role of the committee, which is "entrusted with ... for ensuring integrity in the appointment process, which is essential for maintaining the public's trust in the government authorities" (High Court of Justice 1570/07, at para. 9).
- As my colleague Justice Grosskopf noted, these words - which are usually true in relation to all the roles mentioned - are even more true in view of the uniqueness of the position being examined. The role of the head of the Mossad is different from all the other positions for which the committee examines candidates. This is a position whose boundaries and the rules that apply to it are not regulated by legislation, and its activity is in the field of "shadows". This is also in comparison to the character of the head of the other secret service whose appointment the committee discussed, the head of the General Security Service. The boundaries of the institution's authority and functions are not defined in a specific authorizing law, which allows for the examination of additional aspects of accommodation, and it is mentioned in the legislation only incidentally (see, for example, section 2 of the Counter-Terrorism Law, 5776-2016). In terms of ministerial supervision, the head of the Mossad is subordinate only to the prime minister, who supervises him alongside his many other duties (for comparison, see: section 5 of the General Security Service Law, 5762-2002 (hereinafter: the ISA Law)). Parliamentary criticism of the Mossad and its head is not enshrined in the law (for comparison, see: Section 6 of the ISA Law). In these circumstances, the importance of examining the integrity of a candidate for the head of the institution is doubly significant.
- It should be noted that the work of the committee is of particular importance with regard to the head of the institution as well from the perspective of the appointment process for this position. The head of the Mossad is appointed exclusively by the prime minister, without the government's involvement in its plenum. This was also the case before us. The Spokesperson's Office's statement regarding the decision in the case of Maj. Goffman reads: "Upon receipt of the committee's approval, Prime Minister Benjamin Netanyahu signed the letter of appointment of the next head of the Mossad, Maj. Gen. Roman Goffman..." (Prime Minister's Office, "Approval of Maj. Gen. Goffman's candidacy for the position of head of the Mossad for Intelligence and Special Functions," April 12, 2026 (emphasis added)).
- Having established the starting point regarding the necessity of a proper procedure in the committee, I will now proceed to examine the manner in which things were actually done with regard to the Almakais affair.
The Almakais Affair - The Undisputed Facts
- From the outset, the examination of the integrity of Major General Goffman also touched on various claims that were rejected by the committee. At this stage, the focus is mainly on the events known as the "Almakais Affair," with regard to the conduct of Maj. Goffman while he served as commander of the 210th Division. Due to the great importance of the factual development in the circumstances of the case, I will begin by bringing the main points of the relevant facts that are not in dispute.
- The full details of the affair were described at length in the opinion of my colleague Justice Grosskopf, and therefore they will be presented here only briefly. At the beginning of 2022, Major Tzur, an intelligence officer in the 210th Division (hereinafter: Major Tzur), contacted Uri Elmakayes, a minor who ran a Telegram channel called "Telegram News World", a channel that dealt with security current affairs from the Arab world (hereinafter: Almakais and the channel). As Major Tzur explained, the purpose of the contact with Almakais was to publish unclassified material on this channel, as part of "influence operations" against elements hostile to the State of Israel. Major Tzur's appeal to Almakaiis was made with the consent of his commanders - Maj. Goffman (as the division commander), the division's intelligence officer (Major Tzur's direct commander) and the division's information security officer (hereinafter, respectively: the division's intelligence officer and the division's commander), among other elements. Maj. Gen. Goffman was not provided with Almakais's identifying details, but he knew about the operation of an Israeli "blogger" to whom only unclassified material would be transferred. As I will explain below, the exact extent of Maj. Gen. Goffman's knowledge regarding Maj. Gen. Tzur's activity vis-à-vis Almakais remains unclear even now. In any case, communication between the two continued during the first months of 2022 and included continuous correspondence, almost on a daily basis. As part of the operation, Major Tzur provided Almakais with materials for publication on the channel, along with requests from Almakais to use his abilities and connections to gather information.
- During the period in which Almakais was operated in the format described, an ISA investigation began to be conducted in light of a suspicion that sensitive intelligence information had been published on the channel, without the appropriate authorizations being given. The Shin Bet statement revealed that Almakais was in contact with military officials, and a preliminary examination was conducted by the IDF's Intelligence Directorate as to whether the publication of the classified material claimed on the channel was done with the consent of an authorized military official. The examination was conducted by the IDF's Information Security Directorate (hereinafter: the IOM), with the involvement of the head of the Operational Operations Division in the Intelligence Directorate at the time, an officer with the rank of Brigadier General (hereinafter: Gen. G). As part of the investigation, Brig. Gen. G. contacted various IDF officials who may have a connection to the incident. Brig. Gen. G.'s inquiries to the various parties were not detailed before us, but at least it is known that such an inquiry was also conducted with the 210th Division.
- More specifically, on May 15, 2022, Brig. G. spoke with Maj. Gen. Goffman in order to clarify the matter. According to a summary document of the hearing that was held in real time, and which was later backed up by an affidavit submitted on behalf of Brig. Gen. G. as part of the litigation before us, in the conversation, Maj. Gen. Goffman was informed that an investigation was underway into a sensitive affair relating to the alleged transfer of intelligence materials to a Telegram channel in the field of security current affairs. In this context, he was informed that a certain branch of the affair was located in the 210th Division. In the meantime, Maj. Gen. Goffman was asked directly - as documented in the summary of the aforementioned discussion: "Is he aware of any connection, directly or indirectly, to the current affairs-security channel on Telegram" (paragraph 4 of the document). Maj. Gen. Goffman answered in the negative. General Goffman was also asked concretely if he was familiar with the channel operated by Almakayes, with the name "World of News" explicitly mentioned. To this, too, General Goffman answered in the negative. At the end of the investigation - as noted, even among other parties - no military unit was found to have acted in an orderly manner against Almakais, as did the head of the International Investigation Investigation Agency (IGB) on May 21, 2022, to the relevant investigative bodies:
"In a thorough examination carried out in the past two weeks, among the authorized officials in the IDF who deal with the issue of the operational process in the world of influence and deception... No evidence was found of contacting the relevant Telegram channels for the investigation or the specific individuals suspected of leaking the information as part of influence or fraud efforts" (emphases in original).