High Court seeks further materials before ruling on Gofman Mossad appointment

The decision followed a hearing before Justices Dafna Barak-Erez, Ofer Grosskopf, and Alex Stein, which centered on whether alleged flaws in the committee’s work created a defect severe enough to block one of Israel’s most sensitive security appointments.

The petitions, filed by the Movement for Quality Government in Israel, the Movement for Integrity in Government, and Elmakayes himself, ask the court to block the appointment or require the committee to reconsider it.

At the center of the case is the Elmakayes affair, involving allegations related to the use of then-minor Ori Elmakayes in an IDF-linked influence operation connected to the 210th Division while Gofman commanded it.

Attorney Orit Hayoun, representing Elmakayes, argued that the committee’s decision rested on an incomplete factual foundation because it did not hear directly from Elmakayes or from other figures who, she argued, could have clarified what Gofman knew and when.

She said correspondence between Elmakayes and an officer in the division showed that he had been given materials she described as classified, including information about military activity before it took place and flyers before they were dropped in Syria.

The justices, however, repeatedly pressed the petitioners on the evidentiary gap between those claims and Gofman’s knowledge.

Barak-Erez said the factual picture was central to the court’s review and that the case became difficult precisely because the facts were not fully settled. Grosskopf similarly narrowed the question to whether the petitioners had material that could illuminate what Gofman knew or did not know.

Stein was more openly skeptical, asking what legal source required the committee to hear Elmakayes and warning that the court was not itself a trial court tasked with determining disputed facts.

The justices also questioned the relevance of a letter by outgoing Mossad chief David Barnea opposing the appointment, with Stein noting that the letter had not been submitted in the case and had not been reviewed by the committee when it made its decision.

Aner Hellman, representing the Attorney-General’s Office, argued Tuesday that once an integrity concern had been identified, the committee was required to examine it further before approving an appointment of such sensitivity.

Hellman said the issue was not whether Gofman was facing criminal allegations, but whether the committee had adequately examined doubts about his conduct, truthfulness, and command responsibility.

The justices challenged that framing. Grosskopf questioned whether the attorney-general’s position rested on assumptions about what Gofman had been asked and answered in earlier military inquiries. Stein asked why the court should intervene if, even on some of the petitioners’ claims, the matter amounted to negligence rather than bad faith or an integrity defect.

“If this is the conclusion, why issue an order at all?” Stein asked.

Committee chairman and former Supreme Court president Asher Grunis was the lone dissenting voice in the committee, finding flaws related to the Elmakayes affair and concluding that it was not appropriate to appoint Gofman Mossad chief. The committee’s final decision, however, was wholly authoritative.

The petitioners and the Attorney-General’s Office argued that Grunis’s dissent should have prompted a deeper examination, particularly given the seniority and sensitivity of the post.

The committee, by contrast, has asked the court to dismiss the petitions, arguing that its majority decision was well-founded. In its response to the petitions, the committee said it had contacted relevant parties to examine the affair and that Gofman had shown integrity and civic courage by accepting responsibility for what it described as a minor mishap.

Representing the government and Netanyahu, attorney Harel Arnon argued that even with a dissenting opinion, the committee’s majority approval carried significant weight and did not justify judicial intervention in the prime minister’s appointment decision.

Attorney Ohad Shalem, representing Gofman, argued that the facts before the committee showed a narrower procedural issue than the one described by the petitioners.

According to that account, Gofman approved the transfer of materials for publication via a Telegram channel after an attempt to do so through Ynet failed. This information, he argued, had already been approved for publication, Gofman did not know Elmakayes was a minor, and he did not have direct contact with him.

He further argued that the only deviation from protocol was that the materials were routed through an unofficial channel rather than a formal one, and that this did not constitute an integrity defect warranting disqualification.

Elmakayes addressed the court himself after Barak-Erez invited him to speak about his feelings without entering into factual claims.

He said that throughout his alleged activation, including under Gofman and the IDF, all of his actions were for Israel’s security. He said his current fight was also for Israel’s security and for Mossad agents.

“I experienced on my own flesh that Gofman abandoned me,” Elmakayes told the justices. “He chose not to take responsibility and not to cut short the ongoing nightmare I went through.”

“What I went through cannot be compared to what a Mossad agent would go through if abandoned in an enemy state, if Gofman does not take the responsibility he is supposed to take as a commander,” he said.

Former deputy Mossad chief Udi Lavi said Tuesday that a Mossad chief need not come from within the organization, but stressed that because the Mossad lacks a formal statutory framework, the integrity and judgment of its leader carry particular weight.

Speaking at the “Tel Aviv for Israel’s Future” conference, Lavi said the key criteria for the role were professionalism, clean hands, honesty, backing subordinates, and taking responsibility. “A hero does not yet become a good Mossad chief,” he said.

Dr. Roy Peled, a constitutional and administrative law scholar at the College of Management Academic Studies, said the case did not appear to involve procedural flaws severe enough, on their own, to justify canceling the appointment. However, he argued that the accumulation of public-interest considerations could carry legal weight in assessing the reasonableness of the appointment, particularly given questions over Gofman’s command responsibility and credibility, and the doubts raised by Grunis.

Following the hearing, the court said that, by agreement of the parties, all materials placed before the advisory committee and the full protocols of its discussions would be submitted for the justices’ review.

The court also ordered an affidavit from the former head of the IDF Intelligence Directorate’s Operational Activation Division, Brig.-Gen. G., whose activity was mentioned in the committee’s materials. The affidavit is to address, as far as possible and to the best of his recollection, a May 2022 inquiry he conducted with officials from Division 210 as part of an information-security review - including an alleged direct clarification with Gofman and his own involvement as it was understood at the time.

The affidavit must be submitted as soon as possible and no later than May 17. The court also allowed Elmakayes’s lawyers to submit, under seal, investigative materials they had received in preparing the case by May 13, with a verifying affidavit, without adding any other materials.

The decision leaves the petitions pending while the court reviews the committee materials, the additional affidavit, and any sealed investigative materials submitted by Elmakayes’s lawyers.