Controversial 'Feldstein Bill’ passes prelim. Knesset vote after leak affair

A bill proposal to make soldiers who make unauthorized transfers of secret documents to the prime minister’s office or defense minister’s office immune from criminal responsibility passed a preliminary vote in the Knesset on Wednesday.

The bill is known as the “Feldstein Law,” as it came in response to the indictment of an aide to the prime minister, Eliezer Feldstein, and a reserve NCO whose name was not approved for publication, for stealing a top-secret document and leaking it to a foreign media outlet. According to the indictment, the leak could have caused harm to national security and endangered lives.

In fact, when IDF Chief of Staff Lt.-Gen. Herzi Halevi personally asked for a probe into how the top secret information was leaked to the foreign media outlet, he did not know that it had been done by an aide to Prime Minister Benjamin Netanyahu and merely wanted to get to the bottom of the matter.

Halevi had viewed the issue as especially severe because it was not a theoretical danger to national security, but actually endangered the lives of agents.

The NCO argued in his defense that he felt that it was imperative that the prime minister see the document, and that it was critical for the hostage negotiations that were going on at the time.

Critiques of the bill

Critics have said that the document leakers did so to undermine the possibility of a hostage deal under compromise terms which the IDF and the defense establishment favored, but which Netanyahu opposed.

Although Netanyahu or an aide can leak classified items to the media in select circumstances, this is usually carried out in coordination with top defense officials, including information security officials, to ensure no damage to Israeli national security. 

The IDF said in the indictment that the document was not passed to the prime minister’s office since more relevant information was available.

IDF Chief Spokesman Daniel Hagari said Wednesday night, "This law is dangerous to the IDF...and to the nation". He also said it could lead to any low-ranking IDF official acting on their own with classified information and endanger lives.

The bill is highly controversial, and the IDF opposes it both because, in the specific case, it believes the leak endangered potential agents as well as potentially the hostages; lives and because it could undermine the chain of command by opening up lower levels of the military to direct political deals and interactions with the PMO, instead of channeling information through standard top military official channels as mandated by existing law.

The official channels are standard in many democracies to protect the military from politicization.

Almost all legal experts oppose the bill because it is an overt personal bill to try to retroactively legalize illegal conduct: a bill to relieve Feldstein and anyone connected to him, from criminal responsibility for actions which were allegedly criminal when they undertook them.

One of the landmark principles of criminal law is not to interfere for or against suspects or defendants with retroactive legislation so as to avoid political abuses of legal power.

MK Gadi Eisenkot, a former IDF Chief of Staff, explained in the Knesset plenum on Monday that the prime minister’s military secretariat had the “broadest access” to intelligence material and that the prime minister’s claim that material was withheld from him was “absurd and not serious.” Eisenkot wrote on Facebook on Sunday that the bill proposal was a “transparent personal law to defend, retroactively, those who stand today before severe indictments, the center of which is harming national security.”

Eisenkot also warned that the bill would “harm national security and destroy the interaction between the political echelon and the IDF, Shin Bet, and Mossad.”

MK Benny Gantz said in a speech during the debate that the bill would “flood” the prime minister with raw material that would not be analyzed and would harm the ability to create a coherent intelligence picture.

Gantz said that the circulation of top-secret information amongst unauthorized civilian officials would reveal sources and create “anarchy.”

Following the vote, Eisenkot called the bill “a bill to destroy Israel’s intelligence superiority.” The bill’s authors “have not even the faintest idea of the depth and size of the damage” that the bill would cause.