November 16, 2022

Welcome back to Axios from Tel Aviv.

  • This week's edition (2,000 words, 7½ minutes) starts with the latest as Benjamin Netanyahu works to form a government.
  • It also brings you more on the FBI investigation into the killing of Palestinian American Shireen Abu Akleh, as well as fresh lines from Iraq, the U.S. and Oman.

1 big thing: Bibi's push for power to override Israel's Supreme Court

Photo: Mateusz Wlodarczyk/NurPhoto via Getty Images

Incoming Israeli Prime Minister Benjamin Netanyahu has agreed during ongoing coalition talks to commit to passing a law that would allow the government to bypass Supreme Court rulings, according to the incoming coalition.

Why it matters: Such a law could significantly erode the court's independence and its ability to block laws or government decisions it deems unconstitutional or in violation of human rights.

  • During the election campaign, members of Netanyahu’s Likud party and the leaders of other parties in his right-wing bloc said their first move after winning the election would be to pass a law allowing a majority of 61 lawmakers to bypass Supreme Court rulings.
  • Now, ultra-Orthodox and extreme-right members of Netanyahu's bloc are insisting that a promise to pass the law be included in the coalition agreement that is currently being drafted.
  • Netanyahu didn't initially want to include the law in the agreement but has now agreed to mention it without going into details, the sources say. The main missing detail is how many votes would be enough to bypass the court — 61 or a higher threshold that would require opposition votes.

If only a majority is needed, such a law could dramatically undermine the relevance of the court and remove one of the biggest checks on the power of the ruling government, which already controls both the executive and legislative branches.

  • The Supreme Court would also have significantly less ability to intervene when it feels the rights of minorities or human rights more generally are being violated.
  • U.S. officials say the Biden administration has been watching the public discourse about the proposed law and studying the issue and the impact it could have on Israel’s democratic institutions.
  • The White House and the State Department declined to comment.

Breaking it down: The major factions in Netanyahu's bloc all have reasons to support such a law.

  • For radical right-wing parties, the law could allow the government to bypass court rulings blocking the confiscation of land owned by Palestinians in the occupied West Bank or other rulings regarding the human rights of Palestinians and the Arab minority in Israel.
  • Ultra-Orthodox parties could seek to bypass rulings on military service for ultra-Orthodox Israelis or their autonomous ultra-Orthodox education system.
  • For Netanyahu, such a law could potentially give him more leeway to pass laws and make decisions concerning his own corruption trial. Netanyahu opposed attempts to weaken the Israeli judiciary in the past, but he has been attacking the police, prosecution and the courts since he came under criminal investigation.

Between the lines: Some supporters of the law claim the Supreme Court has become too powerful relative to the elected government, though the court has only struck down 22 laws since Israel was founded.

2. White House says it was not behind FBI Abu Akleh probe decision

A Palestinian from An-Najah University holds a picture of Shireen Abu Akleh during a protest in the occupied West Bank city of Nablus on Nov. 6. Photo: Nasser Ishtayeh/SOPA Images/LightRocket via Getty Images

The White House and the State Department told the Israeli government they were not behind the FBI decision to open an investigation into the killing of Palestinian American journalist Shireen Abu Akleh, three Israeli and U.S. officials told me.

Why it matters: The FBI decision is unprecedented and it has led to a bilateral crisis between the Biden administration and the Israeli government.

Flashback: Abu Akleh, an Al Jazeera correspondent, was wearing a bulletproof vest marked "press" when she was killed in May while covering an Israeli military raid in the occupied West Bank city of Jenin.

  • The Palestinian Authority and her family accused the Israeli military of intentionally targeting her.
  • The Biden administration said in early July that Abu Akleh was likely killed by unintentional Israeli fire, but a ballistics test of the bullet fragment removed from her body was "inconclusive."
  • The IDF concluded in September she was most likely killed in "unintentional fire" from an Israeli soldier.

Behind the scenes: According to Israeli and U.S. officials, the FBI decision to open an investigation was made before the Nov. 1 elections in Israel, but the Justice Department officially notified the Israeli government three days after the elections.

  • Once notified, senior Israeli officials asked U.S. ambassador to Israel Tom Nides for more information, according to the officials. Nides said he didn't know about the investigation and that he would check on it.
  • Israeli officials told me Israeli national security adviser Eyal Hulata, ambassador to the U.S. Mike Herzog, and Alon Ushpiz, the director general of the Foreign Ministry, called their counterparts in the Biden administration and demanded an explanation.
  • "We spoke to every Biden administration official we work with and made it clear how furious we were," a senior Israeli official told me.

Israeli Defense Minister Benny Gantz held a difficult call with a very senior U.S. official earlier this month and made it clear that Israel would not cooperate in any way with the FBI investigation, the Israeli officials said.

  • Israeli officials said they urged the Biden administration to "fix the situation" before the investigation leaked to the press, warning that once news of the probe became public, the situation would turn into a bilateral crisis.

The other side: According to U.S. and Israeli officials, the White House and the State Department made it clear to the Israeli government that they weren't part of the DOJ's decision-making process regarding the investigation.

  • They also made it clear that the opening of the investigation was an independent decision by the U.S. Justice Department and wasn’t motivated by a political decision, per the officials.

What they're saying: Outgoing Israeli Prime Minister Yair Lapid said on Tuesday that Israel conveyed its "strong protest to the United States."

  • "Our soldiers will not be investigated by the FBI or by any other foreign country or entity, however friendly it may be. We will not abandon our soldiers to foreign investigations," Lapid said.
  • The White House, the State Department and Justice Department declined to comment.

What to watch: The crisis around the FBI investigation will have to be resolved by the incoming Israeli government, which is expected to have a much more hardline policy on the occupied West Bank.

  • Israeli officials say they don’t think the investigation will have any practical ramifications and that it will stay as a symbolic move by the FBI.

3. U.S. to Iraq: We won't work with officials linked to terror groups

Supporters of Asa'ib Ahl al-Haq and Hezbollah Brigades rally in Baghdad on Dec. 31, 2021. Photo: Ameer Al Mohammedaw/picture alliance via Getty Images

The Biden administration has made it clear to Iraq's new prime minister that it will not work with ministers and senior officials who are affiliated with Shiite militias the U.S. has designated as terrorist organizations, two sources briefed on the issue told me.

Why it matters: Mohammed Shia al-Sudani became the prime minister after he was endorsed by the pro-Iranian factions in the Iraqi parliament, known as the Coordination Framework. These factions include some Shiite militias on the U.S. Foreign Terrorist Organizations list.

  • Still, the U.S. plans to largely work with and give the new Iraqi government and al-Sudani a chance, as I reported last week.
  • Iraq is a key partner for the Biden administration in the region, with many U.S. security and economic interests that need to be preserved.

State of play: The Biden administration has already decided it will not work with the minister of higher education, Naim al-Aboudi, who is a member of Asa'ib Ahl al-Haq (AAH), a Shiite militia that is funded by Iran and was designated as a terrorist organization by the U.S., the two sources said. 

  • The U.S. is also concerned about Rabee Nader, who was appointed to head the Iraqi prime minister's press office. Nader worked in the past for media outlets affiliated AAH and with the Kata’ib Hezbollah — a Shiite militia designated by the U.S. as a terror group.

Behind the scenes: U.S. ambassador to Iraq Alina Romanowski has met with al-Sudani five times since he took office less than three weeks ago, according to the two sources.

  • The sources said Romanowski told al-Sudani the U.S. policy regarding engagement with government ministers and officials who are connected to militias. The same message was conveyed to the Iraqi government by other Biden administration officials.
  • The White House declined to comment on diplomatic engagements with the Iraqi government.

The big picture: The Biden administration is satisfied by the constructive engagement with al-Sudani it has seen so far, the sources said, adding that the U.S. will judge the new prime minister's independence from Iranian influence by his actions.

What to watch: The Biden administration is concerned al-Sudani won't have enough control over the Shiite militias, the sources said.

  • If the militias increase attacks against U.S. forces in the country, it could change the Biden administration’s policy toward the Iraqi government, the sources added.

4. Scoop: Netanyahu to keep Michael Herzog as ambassador to U.S.

Biden shakes hands with Israeli ambassador to the U.S. Michael Herzog at the White House in December 2021. Photo: Anna Moneymaker/AFP via Getty Images

Netanyahu is expected to keep Israel's ambassador to Washington, Mike Herzog, in his position even though he was appointed by the previous government, two Israeli and U.S. sources said.

Why it matters: The ambassador to Washington is always a critical post for Israel, and the job is only expected to get harder once the new government is in place.

  • The Biden administration is concerned that multiple extreme-right politicians are expected to be appointed as senior ministers.
  • There are also likely to be tensions over the Israeli-Palestinian conflict.

Behind the scenes: Herzog, a retired general whose father was president of Israel and whose brother Isaac is the current president, was appointed last year by then-Prime Minister Naftali Bennett and Foreign Minister Yair Lapid.

  • But senior Israeli and U.S. sources say that before Herzog became ambassador, he also sought and received an endorsement from Netanyahu.
  • At a going away party for Herzog at the think tank he worked for before heading to Washington, Netanyahu sent a video in which he praised Herzog and said he was the best man for the job.

Netanyahu worked closely with Herzog in his previous tenure as prime minister, and he even sent the former general on secret and sensitive missions, including back-channel negotiations with the Palestinians.

  • In recent days, Netanyahu and his close aides have signaled in private they intend to keep Herzog in his job, the sources said.

The decision to keep Herzog in Washington would go over well with officials at the White House and State Department, who see him as a professional and trusted interlocutor, a U.S. official said.

  • Herzog has also cultivated relationships with both parties in Congress, which could come in handy given Netanyahu's strained relations with many top Democrats on Capitol Hill.
  • Netanyahu's office and Herzog declined to comment.

5. U.S. and Oman talk potential opening of Omani airspace to Israeli planes

Omani Foreign Minister Sayyid Badr al-Busaidi in Muscat on May 11. Photo: Mahhamed Mahjoub/AFP via Getty Images

White House national security adviser Jake Sullivan and Secretary of State Tony Blinken met with Omani Foreign Minister Sayyid Badr al-Busaidi last week to discuss the potential opening of Omani airspace to Israeli airlines and other issues, U.S. and Israeli officials said.

Why it matters: Saudi Arabia in July gave Israeli airlines permission to use its airspace for eastbound flights to India and China. This was a significant step on the path toward normalizing relations between Saudi Arabia and Israel and one of the achievements of President Biden’s trip to the kingdom.

  • But without similar permission from Oman, the flight routes for Israeli airlines are blocked and the Saudi move becomes largely meaningless.

Flashback: In 2018, Netanyahu, then prime minister, visited Oman and got a commitment from then-Sultan Qaboos to allow Israeli airlines to use Omani airspace.

  • But after Qaboos died, current Sultan Haitham bin Tariq rolled back the decision.

Behind the scenes: U.S. and Israeli officials said that since July, the Biden administration has been trying to convince the Omanis to open the airspace to Israeli airlines.

  • The Omanis had several bilateral issues and requests from the U.S. that they wanted to get in return. One of them was launching a strategic dialogue between the countries focused on education and cultural exchange, trade and investment, and renewable energy, the two countries said.
  • During the Omani foreign minister’s visit to Washington last week, the strategic dialogue took place for the first time and several other issues, including Yemen and regional security, were discussed.
  • U.S. and Israeli officials hope the progress made during the talks in Washington last week could pave the way for Oman to open its airspace to Israeli airlines.

The White House declined to comment and the Omani Foreign Ministry did not respond to a request for comment.