The High Court of Justice on Sunday set this Thursday as a climactic deadline to resolve the year-long battle between State Comptroller Matanyahu Englman on one side and the IDF and Attorney-General Gali Baharav-Miara on the other side over probing certain failures related to the October 7 disaster and related ongoing security problems.
Reading between the lives of the claims made by the lawyers from both sides at Sunday’s hearing, it seemed that the IDF was playing for time, hoping to reach a ceasefire in Lebanon before it had to cooperate with the comptroller, while Englman lost patience with giving the military extensions.
In the background may be the IDF’s belief that once there is a ceasefire in Lebanon, various parties will finally succeed at getting Prime Minister Benjamin Netanyahu to agree to a state commission of inquiry, which will sideline the comptroller probe or make it less important.
The IDF has been suspicious that Englman is more aligned with Netanyahu and will place more of the blame for October 7 on the IDF, whereas the military views the prime minister as equally responsible as the architect of the containment, deterrence, and payment (allowing Qatar to bring funds to Hamas) of Hamas security strategy for Gaza.
Further, the military has said Netanyahu’s judicial overhaul campaign in 2023 weakened the military in the eyes of Hamas.
Two more weeks needed
From January until July, the High Court essentially sided with the IDF and held the comptroller at an arm’s distance, saying that the war was too current and intense to expect military commanders to divide their time between fighting and being probed.
However, the court started to shift toward mild pressure on the IDF to reach a compromise with the comptroller after July, and on October 14, started putting heavier pressure on the military.
Essentially, the court’s position emerged that even if a state inquiry would be preferable, given the absence of one, a comptroller probe – with certain parameters – was preferable to no outside probe.
During that October 14 hearing, Justices Noam Sohlberg, David Mintz, and Yael Wilner gave the IDF three weeks to make some more compromises toward Englman, after which, if there was no deal between the sides, they threatened to issue a binding decision.
However, negotiations made enough progress after three weeks that the court gave the sides another week to reach an elusive deal.
At the hearing on Sunday, lawyers for the Attorney-General and the IDF said that the sides had solved most of the disagreements about what issues the comptroller could probe with the war still being ongoing as well as what the mechanism would be for passing on classified IDF information and what would or would not be allowed for interviewing commanders.
However, the comptroller’s lawyers only gave the IDF partial credit.
They said that the IDF, for some weeks, had seemed to show flexibility and then, in recent days, had withdrawn back to a more rigid and less cooperative position.
While the Attorney-General/IDF lawyers said that a deal could be reached in a matter of days or weeks, the comptroller’s lawyers said that the problem was not time but the IDF’s inflexibility on some of the remaining issues.
Also, the comptroller’s lawyers said that the Shin Bet and the Prime Minister’s Office (PMO) are being more cooperative with their requests than the IDF.
However, sources indicated to the Jerusalem Post that the Shin Bet and PMO have not yet had to provide some of the sensitive documents and interviews to the comptroller which are requested by the military.
Some of the current progress came after Englman himself took the unprecedented step of pleading to the justices himself in a classified hearing last month, whereas usually one of his lawyers would speak on his behalf.
In mid-July, the court told the sides to negotiate more and reach a deal by October 31.
This was such a long period of time to negotiate that the IDF essentially ignored the comptroller during this period, especially because from late July to late August and again since mid-September, there were crises with Lebanon and Iran.
There was a crisis between Lebanon and Iran in July-August over the killing of Hezbollah chief Fuad Shukr and Hamas chief Ismail Haniyeh while visiting Tehran, as well as another crisis in mid-September as the IDF decapitated much of Hezbollah and the Islamic Republic attacked Israel head-on.
However, the Post understands that the comptroller, in his personal time with the judges, helped convince them that his intentions to probe were pure and that if kept limited, they would not help Netanyahu avoid a potential later state inquiry and could conceivably help fix some problematic issues.
Publicizing security gaps related to the Nova festival on October 7, to security relating to east Jerusalem, and to dealing with the drone threat, as well as other home front defense issues, could help save lives in the future.