Nuclear Secrets and Lies: Petition Seeks to Move Israel's Atomic Policy Out of the Shadows
Of the three main secret organizations under the prime minister’s authority, the IAEC is the most secretive. This harms democratic rule and grants unqualified authority to the executive branch.
About two weeks ago, some 100 Israelis petitioned the High Court of Justice to set a precedent and order the government to “normalize” the status of the Israel Atomic Energy Commission via primary legislation.
The petition is based on the view that sensitive government activities in a liberal democracy must not take place in the shadows; they must be enshrined in law.
Because all over the world Israel is considered a nuclear weapons power in every way, and because nuclear activity is a fateful area with its own unique risks, it is imperative to define this realm with legislation.
A reminder: Of the three main secret organizations under the prime minister’s authority, the IAEC is the most secretive. It is even forbidden to speak of its mission.
Today the IAEC’s sources of authority are the cabinet’s secret decisions whose validity is based on the “residual powers” principle – a sort of default case in which the government is entitled to act according to its judgment and without reservation in all areas not delineated by law. Israel’s nuclear activities are in this twilight zone beyond the law, and in a few cases are even granted an exemption by the law.
The IAEC was established in 1952 under a secret order by Prime Minister David Ben-Gurion; only two years later did its existence become public knowledge. The word “commission” was borrowed and translated (poorly) into Hebrew from the atomic research institutions in the United States and France, where government nuclear activities were organized under a council of commissioners (commissariat in French). The word “commission” is, in a sense, misleading. In all its incarnations, the Israeli committee has never functioned as a committee or council of commissioners.
When the vision of the Dimona nuclear research center began to take shape, the commission and its heads were pushed to the sidelines of the actual work. In 1966, Prime Minister Levi Eshkol reestablished the commission, again via a secret cabinet decision, as a scientific administration in the executive branch and subordinate to the prime minister himself, (who also became the commission chairman).
Since then, the commission has been responsible for all national nuclear activities. These same secret cabinet decisions are updated occasionally, the last time in 2011.
The current situation is problematic because it reflects widespread harm to the foundations of democratic rule while granting unqualified authority to the executive branch. In addition to the damage to the principles of the separation of powers and the rule of law, the current situation creates a serious conflict of interest, as well as a lack of clarity about the source and division of responsibility and authority.
There is also the weakened status of the committee’s internal and external oversight bodies. This last problem is particularly acute because there is practically no public oversight of the commission.
A similar situation existed in the Shin Bet security service, whose status and authority were a lacuna in Israeli democracy that gave rise to a long list of grave affairs that all occurred in the shadows. The introduction of the so-called Shin Bet Law in 2002 wasn’t a simple matter, but in the end the organization was subordinated to the rule of law.
Two objections can be raised against the High Court petition. The first is based on security considerations, claiming that any legislation on the nuclear issue will conflict with the holy of holies – Israel’s opacity policy on the nuclear issue – so it’s impossible to change the status quo.
The second objection is a claim of liberality (mixed with cynicism) saying that legal formalism is nice, and possibly even works in a true liberal democracy, but in Israel, with this government, it will achieve the opposite of the desired results.
That is, even if the High Court intervenes and forces the government to consider legislation on the matter, which is unlikely, Prime Minister Benjamin Netanyahu, Defense Minister Avigdor Lieberman and Justice Minister Ayelet Shaked will simply pass legislation that will further tighten the chains of the nuclear taboo. So what good will the effort do?
As for the first objection, the friction between nuclear legislation and the opacity policy depends on the content of the legislation itself. In the minimalist version, it’s definitely possible to conceive of a law without much teeth that will live peacefully with the current practice of opacity. It’s also possible to think about a nuclear law that would reduce this opacity policy. Either way, a law isn’t passed in a day, and the working through of the opacity issue via legislation would be only for the best.
After all, many Israelis in the public sphere feel that the nuclear-opacity policy has outlived its usefulness and its practice is anachronistic, antidemocratic and no longer necessary. The trick of discussing nuclear matters with the wink of “according to foreign sources” has exhausted itself.
As for the second objection, the petition is not about an immediate change; above all, it’s a challenge to the distorted situation and a call to think about how to end it. Any attempt to loosen the chains of the Israeli nuclear taboo will be a long and exhausting process. The High Court petition has civic significance no less than its legal significance.
These two objections represent opposite ideological poles, but they share the view that the here and now is the most important thing. The petition aims to challenge this view precisely. It’s an attempt to think about this forbidden matter for the long term, beyond the current status quo.
Avner Cohen, a nonproliferation-studies professor at the Middlebury Institute of International Studies at Monterey and the author of “Israel and the Bomb,” is a petitioner to the High Court on the issue of the Israel Atomic Energy Commission.