Fundamental Legal Foundation: Judicial Review of the Appointment of the Head of the Mossad
- After reviewing the activities of the Advisory Committee, I will refer to the rules relating to judicial review of the Prime Minister's decision to appoint the head of the Mossad. The decision to appoint Maj. Goffman, as mentioned, was made by the prime minister. The Prime Minister was the one who interviewed "various candidates" (as stated in his announcement of December 4, 2025, which appears in paragraph 140 of Maj. Gen. Goffman's preliminary response); He was the one who chose General Goffman as his candidate; And he was the one who received the decision of the advisory committee, after which he ordered the appointment. This is in contrast to the other six senior positions, whose appointments are made by the government, according to the recommendation of the minister in charge (see: section 3(a) of the ISA Law; Section 3(c) of the Basic Law: The Army; Section 8A of the Police Ordinance; Section 78 of the Prisons Ordinance [New Version], 5732-1971; Section 8 of the Bank of Israel Law, 5770-2010 (in relation to the appointment of the Deputy Governor, on the recommendation of the Governor). Another exception is the appointment of the Governor of the Bank of Israel, who is appointed by the President of the State, according to the government's recommendation (ibid., in section 6)). The process of appointing the head of the Mossad by the Prime Minister himself, which constitutes an exception to the manner in which the six senior positions are appointed, is done by virtue of practice since the establishment of the State, and since the Prime Minister is the minister in charge of the Mossad, who operates as a unit within his ministry (paragraphs 28-29 of the preliminary response of the Advisor, and paragraph 22 of the Prime Minister's preliminary response).
- These facts dictate the nature of the judicial review that should be exercised on the examination of a decision to appoint the head of the Mossad. The main reason for the review that the petitioners and the Attorney General claim is the lack of reasonableness in the appointment, and therefore I will focus on the manner in which judicial review is exercised on this ground. As is well known, the realm of reasonableness varies both according to the identity of the decision-making party and according to the nature of the decision under discussion (for an extensive discussion of this ground, see: High Court of Justice 5658/23 The Movement for Quality Government in Israel v. Knesset (January 1, 2024) (hereinafter: the issue of the cause of reasonableness)). From the perspective of the decision-making body, the Prime Minister is indeed given very broad discretion with regard to political decisions or decisions relating to security matters, the widest range of reasonableness (and accordingly, the narrowest judicial review) is applied when the decision is made by the government in its plenum (see: High Court of Justice 5853/07 Emunah - National Religious Women's Movement v. Prime Minister, IsrSC 62(3) 445, 519 (2007), and noticed: the matter of Levy's appointment, in paragraphs 8-9; High Court of Justice 427-10-25 The Movement for Quality Government in Israel (NPO) v. Government of Israel, paragraph 37 of the judgment of Vice President Sohlberg (December 28, 2025) (hereinafter: the Zini Appointment Case)). "The status of the government as the executive branch of the state is high and special, as it is the executive branch of the state, as stated in section 1 of the Basic Law: The Government" (High Court of Justice 3872/93 Mitral in Tax Appeal v. Prime Minister and Minister of Religious Affairs, IsrSC 47(5) 485, 498 (1993)). The government, as a body, is responsible to the Knesset and to the public for its actions (section 3 of the Basic Law: The Government; Shimon Sheetrit The Government: The Executive Branch - Interpretation ofBasic Law: Government 413 (2018)). Decisions made in the government plenum also benefit from the advantages inherent in decision-making in a broad forum, which enables the exchange of opinions, the sharpening of disputes, and the emergence of difficulties (for the effect of decision-making in a broad forum on the realm of reasonableness, see: Yitzhak Zamir, Administrative Authority, Volume 5 - Grounds for Administrative Audit 3591 (2020), and compare: The Mayors Case, at p. 192).
In terms of The nature of the decision, the court exercises considerable restraint with regard to decisions regarding appointments to senior positions, particularly in the security agencies (see: High Court of Justice 5562/07 Schussheim N' The Minister For Internal Security, Paragraph 8 (23.7.2007); High Court of Justice 4072/24 Lavi - Civil Rights, Proper Administration and Encouragement of Settlement' Minister of Defense, paragraph 6 (July 2, 2024); High Court of Justice 4684/24 Shani N' Minister of Defense, Paragraph 8 (7.8.2024)). The reasons for this are two: First, one of the most significant tools for implementing the policy of the appointer (in which the court, of course, does not intervene) is the appointment of senior officials who, in his view, will be able to implement the policy; andSecond, such decisions involve considerable considerations that the court will find difficult to assess and the proper balance between them (such as a personal impression of the candidate's qualifications, the degree of importance that should be attributed to different types of professional experience, etc.).
- Another aspect that has a great impact on the nature of judicial review of decisions of this type relates to the fact that the appointment is examined prior to its approval by an advisory committee, whose recommendation has great weight both in the decision of the appointing body and in the existence of judicial review of the appointment. Thus, taking into account the fact that it is an independent and professional committee, and the broad infrastructure laid before it with regard to the issue of integrity. Therefore, the committee's determination that there was a defect in the integrity of a particular appointment will place a very high (and in some cases, even insurmountable) hurdle on the validity of the appointment despite the aforesaid determination (see and compare: Attorney General's Directive 1.1502 "Appointment and Composition of Public Advisory Committees and their Methods of Operation" (January 13, 2003)); High Court of Justice 8134/11 Asher v. Minister of Finance, paragraph 13 of the judgment of Vice-President Eliezer Rivlin (January 29, 2012); Bar's dismissal, at paragraph 63; Shapira, at p. 5). Accordingly, the committee's determination that there was no defect in the candidate's integrity also carries great weight, of course, and only in exceptional cases will the court intervene and draw the opposite conclusion, by virtue of which it must be determined that the appointment is invalid (see, at length: the Zini Appointment Case, at paragraphs 38, 54-55 of the judgment of Deputy President Sohlberg; and see: The Appointment of Levy, at paragraph 10). It should be noted that the precedent on this matter is not unique to the Advisory Committee, since this Court has also established similar precedents with respect to decisions of search committees or other appointment committees, which are of a similar nature (see, Miscellaneous: High Court of Justice 2365/08 Ometz - Citizens for Proper Administration and Social and Legal Justice (NPO) v. Committee for the Appointment of Judges, 8 (February 5, 2009); High Court of Justice 5599/11 Tel Aviv Journalists Association v. Government of Israel, para. 24 (November 24, 2011); High Court of Justice 6804/15 Yifat v. Committee forthe Appointment of Directors in Banking Corporations, para. 7 (November 24, 2015)).
- On the other hand, the importance of effective judicial review cannot be overstated, when it turns out that there was a flaw in that appointment, whether procedural or substantive (see: the issue of reasonableness, in paragraphs 163-166 of the judgment of President Esther Hayut, in paragraphs 89-93 of Justice Amit's opinion, and in paragraph 43 of my opinion). As detailed above, it is not possible to conduct real judicial review of most of the activities of the institution, and therefore it is of particular importance to appoint the head of a proper institution, who has not suffered a moral defect. To a certain extent, it can be said that the only decision (or at least, the main decision) relating to the activity of the institution that is subject to judicial review is the decision before us - the decision to appoint the head of the organization.
- The combination of these data leads to the conclusion that the criterion for judicial review in relation to decisions relating to the appointment of the head of the Mossad is narrow but in-depth. It is difficult, since this is a decision on the appointment of a senior position in a security body that is made by the Prime Minister, according to the recommendation of the Advisory Committee; but it is in-depth, in light of the significant risks involved in an improper appointment, and in view of the fact that the decision on the appointment was made by the Prime Minister, and was not discussed and discussed by the Government in its plenum. Judicial review of the decision will be narrow in terms of the reasons for it, which to a large extent boil down to the existence of extraneous considerations in the appointment or the concern of a defect in moral integrity given the opinion of the Advisory Committee, and do not relate to the question of whether the candidate presented is the most qualified of the possible candidates. However, in terms of the nature of the audit on those few grounds, the judicial review must be in-depth - both on the work of the committee and on its conclusions - in order to ensure that the appointee is worthy of the position in which he is supposed to serve.
- This, then, is the framework that dictates the decision in the petitions in question. Against the background of these rules, I will turn to a discussion of the facts relating to the Almakais affair and to examine the reasonableness of the Prime Minister's discretion in their view. However, before I do so, I would like to briefly address the arguments that were raised regarding the work of the Advisory Committee, and the implications that they may have on the decision in the petitions before us.
The Concrete Legal Foundation: The Proceedings Held in the Advisory Committee in the Matter of Maj. Gen. Goffman
- The proceeding conducted by the Advisory Committee with respect to the appointment of Maj. Goffman raises at the present stage two issues that justify, according to the Petitioners and the Counsel, intervention in the decision made on the basis of the recommendation of the Advisory Committee: First, it was argued that there were flaws in the process of examining the candidacy of Major General Goffman in the Committee, mainly because the factual basis on which the Committee operated was and remains partial (a position that also arises from the supplementary decision of the Committee Chairman). Second, it was argued that in the circumstances of the case, special weight should be attributed to the minority opinion of the chairman of the committee (which was presented at length in the first stage of the committee's work, and remained in place in his supplementary decision as well). I will address these two issues in order.
Factual Basis
- As stated, the petitioners and the Advisor argue that the Prime Minister's decision to appoint Maj. Goffman should be intervened, despite the restraint customary in such matters, since little weight should be attributed to the recommendation of the Advisory Committee, since its recommendation was given at the end of a flawed process, which did not allow for the formulation of a sufficient factual basis, and left questions unanswered. The chairman of the committee was also of the opinion that it was appropriate to conduct an additional examination of various matters, before a final decision was made regarding the appointment of Maj. Gen. Goffman. I will not deny that my opinion is also uncomfortable with the work of the honorable committee in this case. However, after the additional supplements were received and the committee's supplementary decision was issued, these defects do not, in my view, justify accepting the petitions, nor even issuing an order nisi therein. Their significance in this case is, in my opinion, a tighter judicial review in relation to the decision itself. I will clarify.
- In principle, the manner in which the inquiry process in the Advisory Committee is conducted is in the hands of the Committee itself (Section C of Resolution 3839, and see: The Appointment of Zini, in paragraph 54 of the judgment of Deputy President Sohlberg). However, the committee is required to conduct a satisfactory investigation, which ensures that its recommendation is based on a comprehensive, reliable, and detailed evidentiary platform, which is appropriate to the importance of ensuring the integrity of those serving in the seven senior positions. As is well known, the existence of a sufficient factual basis is one of the basic prerequisites for the validity of administrative decisions (Dafna Barak-Erez, Administrative Law, vol. 1, vol. 439-440 (2010) (hereinafter: Barak-Erez, vol. 1)); High Court of Justice 8647/22 Association for Civil Rights in Israel v. Ministry of Welfare and Social Security, para. 82 (September 18, 2025)). In cases where an administrative body is obligated to consult with another body before making its decision, the absence of the factual basis required for the formulation of the recommendation by that body may lead to the invalidation of the decision made on the basis of this consultation. In such a case, the decision-making body cannot rely on the fact that the recommendation made on the basis of partial information is the appropriate recommendation in the circumstances of the case, and in such a situation it is not even possible to determine that the final decision that was made is the correct one, since it was not based on a proper consultation process: "It is possible that the flaw in the [consultation] process will be so severe that it is appropriate to say that in practice there was no consultation at all. For example, [...] If information that is essential for consultation has disappeared or disappeared from the eyes of members. In such a case, it may be appropriate to return to the advisory body in order to conduct a proper procedure" (Yitzhak Zamir, The Administrative Authority, Vol. 2 - Administrative Procedure 1224 (2011)). See also: Barak-Erez, vol. 1, p. See and compare: High Court of Justice 6156/92 Sampo Reinsurance co. ltd. v. Supervisor of Insurance, Ministry of Finance, IsrSC 47(1) 237, 242 (1993); High Court of Justice 5483/95 Gindi v. Minister of Religious Affairs, IsrSC 49(5) 661, 672-673 (1996); (High Court of Justice 5538/09 Peleg v. Civil Service Commission, para. 14 (July 6, 2010)). Indeed, in the matter of the appointment of Ginosar, it was found that the procedure conducted by the Appointments Committee to examine the appointment of a candidate for the Director General of a government ministry was improper, since the committee did not examine and did not address key issues in the candidate's past, and therefore it was necessary to return him for further examination by this committee, and then for a new review by the government. The court argued that "in these circumstances, had they insisted on the originator of this recommendation and the decision of the government that followed it, there would have been no choice but to cancel the recommendation (of the Appointments Committee) and the decision (of the government)" (Appointment of Ginosar, at pp. 243-244).
- To be precise, the scope of the duty to formulate a factual basis varies from case to case. In our case, two circumstances must be taken into account in order to determine the scope of this duty with respect to the recommendation of the Advisory Committee regarding the appointment of Maj. Goffman.
First, as detailed at length above, the committee has a weighty task in view of the cardinal importance of the seven senior positions for the proper conduct of the central bodies in the public administration. As you know, "There is a direct correlation between the subject matter of the decision and its implications for the individual and the public and the degree of evidentiary basis required to formulate the factual basis on which it rests" (Authority to Appeal an Arbitral Award 426/06 Hawa N' Prison Service, Paragraph 14 (12.3.2006). See also: Matter Dismissal of Bar, in paragraph 91 of the President's judgment Associate; High Court of Justice 18225-06-25 Gilon N' Government of Israel, Paragraph 47 (14.12.2025)). In view of the heavy implications of the committee's recommendations for the general public in Israel, and for the candidates themselves, it is certainly incumbent upon the committee to formulate a weighty factual basis before making a decision. This is all the more poignant, since we are dealing with the appointment of the head of an Mossad, with its unique characteristics, as stated in paragraph 52 above.