Israel's High Court hears petitions to halt comptroller's Oct. 7 probe, risking future inquiry
The petitions were filed by the Military Defense Counsel and the NGO the Movement for Quality Government in Israel. The panel consisted of Justices Daphne Barak-Erez, David Mintz, and Alex Stein.
The High Court of Justice on Monday heard petitions seeking to halt or significantly curtail State Comptroller Matanyahu Englman’s probes into the failures surrounding the October 7 Hamas-led attack, amid warnings that the audit could exceed the comptroller’s authority and compromise the work of a future state commission of inquiry.
The petitions were filed by the Military Defense Counsel and the NGO the Movement for Quality Government in Israel (MQG). The panel consisted of Justices Daphne Barak-Erez, David Mintz, and Alex Stein.
At the outset of the hearing, Barak-Erez said the dispute concerned only part of the comptroller’s review, noting that the petitioners argue Englman is acting beyond his authority, that the audit could disrupt the work of a future commission of inquiry, and that the manner in which it is being conducted harms the procedural rights of those under review. The position of the Attorney-General’s Office, she added, aligns with the petitioners. Englman, by contrast, maintains that all of his actions are lawful and consistent with prior understandings with government and security officials.
Attorney Avigdor Klagsbald, representing the Military Defense Counsel, argued that the comptroller’s review of what he termed the “core issues” of the October 7 failure suffers from three fundamental flaws: lack of authority, disruption of a future commission of inquiry, and infringement of the rights of those being examined.
The principal concern, he said, is that testimony given to the comptroller would “contaminate” future testimony before a theoretical state commission of inquiry, exposing witnesses to information beyond their personal knowledge - including the versions and accounts of other witnesses - thereby undermining the integrity of later evidence.
Government probe opposed by families and critics
Last week, the Knesset approved in a preliminary reading a controversial bill to establish a politically appointed investigative commission into the October 7 failures - backed by Prime Minister Benjamin Netanyahu’s coalition and opposed by bereaved families and critics who say it circumvents an independent state commission under the existing law - with the measure passing by a narrow margin in a vote of 53-48.
Stein noted the comptroller’s argument that, in the absence and possible non-establishment of a state commission of inquiry, it was necessary for his office to examine the events. Klagsbald responded: “There is such a claim - that if no one investigates, he will. But need does not replace authority.”
Stein countered that in a prior High Court ruling regarding a commission of inquiry, the court had stressed the importance of establishing a neutral, state body to investigate - a reference to an October ruling in which the justices said there was no real dispute over the need for an independent state commission to examine the October 7 failures and required the government to explain its continued failure to establish one.
Mintz added that the court had previously been told that every day without an investigation caused harm. Klagsbald replied that more than two years after the events, the delay already exists, and that the appropriate mechanism remains a state commission of inquiry.
The justices also addressed whether multiple examinations of the same events could legally proceed. Stein cited a historical precedent in which the court held that there is no inherent bar to different bodies examining the same factual matter from different perspectives. Klagsbald argued that subsequent case law had narrowed that principle, cautioning against parallel or closely sequenced investigations of the same issues.
Barak-Erez sought to clarify whether the petitioners’ focus was on the simultaneity of proceedings or also on successive inquiries conducted in close proximity. Klagsbald replied that both were problematic.
Attorney Tomer Naor, representing MQG, said the petition did not dispute the comptroller’s general authority to conduct audits, but argued that such authority is limited. He contended that the current review suffers from serious defects in its factual foundation and in the right of response afforded to senior officials, past and present.
Barak-Erez questioned whether the argument was that the comptroller had failed to conduct sufficiently thorough examinations before drafting audit reports. Naor responded affirmatively, saying the factual basis was inadequate. The justice asked whether the comptroller might respond by saying he should be allowed to complete the process before being judged.
Englman, for his part, has asked the court to dismiss the petitions, arguing they are intended to silence criticism. In submissions filed last month, he said that more than two years after the outbreak of the war, the State Comptroller’s Office remains the only state body conducting external oversight. He emphasized the institution’s independence from the government and its legal obligation to carry out such reviews.
The dispute unfolds against a broader political and legal backdrop. Attorney-General Gali Baharav-Miara has repeatedly said that the appropriate body to investigate the failures surrounding October 7 is a state commission of inquiry. The government, however, has advanced legislation to establish a political commission, a move the A-G has warned would not allow for a full and independent investigation.
In parallel, tensions have emerged between senior security officials and the comptroller. According to Israeli media reports, defense officials allegedly asserted that the comptroller’s reports deflect scrutiny from the political echelon, while placing the blame more squarely on the security establishment.
At the core of the debate is where responsibility for the deadliest attack on Jews since the Holocaust will ultimately be placed, and whether survivors and families of victims will feel that justice has been served.
Shir Perets contributed to this report.