By Mr. Arie Rotter[1]

The document is published with the permission of the Research Center of the National Defense College of Israel (INDC).

Introduction

In essence, intelligence organizations have three basic characteristics: methods of operation, management modes, and the proximity of their actions to the "boundaries of lawfulness".[2] For obvious reasons, their methods of operation are mostly covert. Their current management, as a matter enforced by secrecy constraints, takes place within a relatively close framework, their transparency towards the public is limited, and public supervision of the things taking place within them is executed mainly through the system control and report mechanisms established by law or custom, and much less through publicly open channels such as the press and public discourse, and their derivatives. The nature of their operations is unique, in the sense that it often treads at the edge of lawfulness. This last feature, concerning the lawfulness of their actions, is relevant mainly to activities of interception and prevention, in contrast to merely enforcement activities.[3] These features are very similar throughout the western world and obviously apply to the Israeli reality as well.

This uniqueness creates suspicion toward these organizations, knowing that their impact on the shaping of security and state reality goes far beyond their relative size. They are perceived as enjoying access to complete information and ability to analyze it, and usually have easy access to the ears of the policy makers. Security organizations engaged in internal security possess a lot of information concerning the right to privacy, which increases the level of sensitivity and suspicion even higher.

This natural suspicion toward intelligence organizations is not unjustified – historically, intelligence and security organizations were accused in malfunctions, disorders, and even various sorts of corruption. Such circumstances create room for certain fears and allegations: the feeling of these organizations that their mission is so vital to their states might blur the boundaries of the allowed and forbidden in the eyes of their members when "the good of the state is above everything", and justify deviation from the accepted rules; the fact that they are “introvert” and covert will shelter them from the critical public eye and conceal deeds that should not have been done; that the covert and uncontrolled operation of these organizations, subject directly to the senior political ranks, will deviate from the formal mandate granted to them and might serve purposes alien to their objectives, such as political ends.

In these circumstances, the "institutional gatekeepers" in these organizations, whom we shall define below, bear special and enhanced responsibility. To a certain degree they are supposed to replace the customary public supervision and control mechanisms of the usual government bodies as loyal proxies of the general public in matters concerning the trust the public assigns them and their actions. This degree of trust is a vital component in the ability of the organizations to function according to their designation, projecting on the gatekeepers the ability to fulfill their roles.

The institutional gatekeepers in the current context are mainly two kinds of officers: internal legal advisors and internal auditors.[4] These officers draw their strength from their professional status and their authority from external authority sources. Thanks to these two elements – professionalism and authority – they are expected to be independent and self-sufficient in comparison to other jobholders in the hierarchic organization.

The name "gatekeepers" indicates the expectations that these office holders will block any possibility or attempt to violate the appropriate proceedings and serve as a sort of guarantee for administrative orderliness and the rule of law in the organizations they are serving.[5] They are expected to block any intention, act, or process contradicting the values of law and proper organizational order within the organization. In fact, the responsibility imposed on them by the power of their roles is a permanent and continuous one, and does not exist on the "verge" alone; it exists in all the internal doings and not just at their intersections with external factors, as their name might mistakenly suggest.[6] At the same time it is clear that this responsibility lies not only on their shoulders, but also on any person fulfilling a role within the organization. As mentioned, beside the joint responsibility these gatekeepers also bear a special extra responsibility.

By highlighting the special situation that characterizes intelligence organizations we refer mainly to the Israel Security Service (hereinafter the Shabak ISA, or the Service), The Institute for Intelligence and Special Operations (Mosad), and the intelligence units of the IDF (AMAN), Israel Police, and the defense establishment. The fundamental problems stemming from the covert activity and closed structure of these organizations are basically similar and even identical. The differences stem from the legal frames these organizations are based on, each in its particular organizational context. The quality of the legal platform and its degree of adjustment to the prevention of flawed phenomena within the organization on one hand, and the special status of the gatekeepers in this respect on the other, are the variables that, in conjunction with the organization's culture, determine its structural strength and ability to function properly.

This article examines the legal and normative frames of the ISA, focusing on the gatekeepers operating in it. The ISA case is interesting for two interconnected reasons. One reason originates from the fact that in recent decades this organization experienced more than one "trauma" inflicted by deep failures in testifying about problems in the functioning of the control and auditing systems. The second reason stems from the fact that following these traumas, the Service institutionalized internal and external auditory control and transparency processes, which are supposed to prevent similar possible lapses in the future. Lessons of the past, as well as the amendments made and the legal arrangements imposed, can provide inspiration and directions of thinking in the analysis of the situation in other organizations with similar modes of operation, even if their legal infrastructure, designation, and roles in their organizational context are different.

The purpose, beyond the descriptive aspect, is to turn attention to the fundamental questions arising from the description. The answer we try to give later to these questions might indicate a recommended model for functioning and cooperation of the two aforementioned gatekeepers for a common goal, intended, as mentioned, to increase public trust in the organization and its operations.

Structure and Content of the Paper

In the first part of this paper we shall briefly depict the historical and legal background of the reality to be described later regarding the ISA. We shall describe the systems of control, audit, supervision, and transparency existing in it today as a result of an intricate fabric of laws, arrangements, customs, and norms. In the discussion section we will analyze the concepts of authority and responsibility relevant to the management of the organization and will highlight the issues requiring special attention and control in the organization.

The second part discusses the special status of the ISA's internal auditor, preceded by a review of the legal basis for its activity and authority. We also shall discuss questions that arise concerning perception of his role and its significance. In the intermediate summary we shall propose a functioning model for his office.

The third part deals with the status of the legal advisor in the ISA and discusses its uniqueness. Here we shall mention the characteristics of the area he deals with, pertaining dilemmas, the way his status is derived from the status of the attorrney general and the difference between the two offices. This chapter too offers a recommended model of perceiving his role and fulfillment of his responsibility.

The concluding chapters discuss the reciprocal relations between the two offices, the auditor and legal advisor, the features they have in common, and distinguish between them and other organizational factors.

In the final summary chapter we will draw conclusions and reach some insights about the given situation – whether it can appease the general public and how "joining arms" by the two offices it is possible to provide a better answer to the overall objective.

Background

The ISA is a national security organization subject directly to the prime minister[7] and in charge, by general definition, of "... protection of State security and the order and institutions of the democratic regime against threats of terrorism, sabotage, subversion, espionage and disclosure of State secrets …"[8] The Service was founded close to the establishment of the state,[9] but only since 2002 has it operated by the power of primary legislation of the Knesset, when the Law of Israeli Security Agency – 2002[10] was legislated (hereinafter the ISA Law or the Law), only after extensive legislative work.[11] The overriding mission of the Service since its foundation, without ever being defined in a unifying, detailed, concise, and publicly open founding document, was to serve as a partner in preservation of the security of the State and its residents as a part of the defense system, and as such to mainly be in charge of the areas of fighting terrorism, subversion, and spying, and for the safety of persons and installations. Prior to the legislation of the Law, the Service operated within an integrated legal frame: in the absence of a law authorizing its activity it drew its fundamental authority to act for the safety of the State from the general prerogative of the government, as an executive branch, to execute in the name of the State, subject to all law, any action whose execution was not lawfully imposed on any other authority.[12]

In matters requiring concrete authorization to execute actions that might impede human rights or those contradicting some other law, the Service's unique status was regulated by legislation, whether by granting authority or positive permission, or by providing defense or exemption from criminal liability. For most of the Service's existence, prior to the Law's legislation, the boundaries of its authority and fields of responsibility were not defined in the substantive law. The assumption was that these issues are regulated by government decisions, which, being classified, were concealed from the eyes of the public, and, as mentioned, in these matters the Service operated by the government's power according to its residual authority.

With the development of the public and legal awareness of human and civil rights, and following the legislation – especially since the late 1970s – of laws protecting those rights, the Service's status was anchored in various contexts of the primary legislation. Thus, for example, when the Secret Monitoring Law was legislated in 1979[13] defining secret monitoring (as it is defined by law) as a prohibited action, the same law also anchored the Service's status, alongside the Israeli Police, as authorized to conduct secret monitoring for the benefit of State security.[14] The same applies to violation of privacy[15] and more.

ISA Affairs in the 1980s – Constitutive Traumas

The affairs known as the "Shabak Affairs"[16] in the mid-1980s exposed the Service to the public eye and facilitated public discussion about control and transparency processes. More than anything, this exposure testified about the lack of efficient control and audit systems with regard to the Service's operations, and surely about the failure and collapse of these systems, if any of them existed, particularly when they were most needed.

During the first years of its existence the Service was perceived, similarly to the other intelligence and security services, as a body better left in silence and not dealt with in the public arena. Certain exposure came after the Six-Day War, which led to Israeli control in the occupied territories. The ISA received the intelligence responsibility to foil terrorism from these territories, and it was only natural that its actions and essence became subject to general exposure and, in even more intimate fashion, to parts of the public.[17] The "breakthrough" into public consciousness occurred with the disclosure of the affairs in the mid-1980s, reaching its peak with the appointment of the investigation committee led by Justice Landau (Landau Committee; the Committee[18]) and the publication of its conclusions in late 1987. The Committee was appointed by the government as a result of problems revealed in conjunction with the question of the lawfulness of the Service's interrogation methods following the debate concerning the trial of the Lieutenant Izat Nafsou,[19] preceded by an affair known as "Line 300". Both affairs revealed severe failure by the Service in the areas of its organizational culture, including an attempt to deceive the previous investigation committees[20] that dealt with it, giving false testimonies in court for quite a long period of time, and other revelations sufficient to land a severe blow to the public trust in the Service and its methods of operation.

By way of dealing with the investigation's findings, the Committee mentioned the existing arrangements pertaining to internal audit in the Service, the manner of checking complaints by suspects interrogated by the Service, and the status of State Comptroller in this context. The Committee recommended, through obvious hinting at the various audit failures, strengthening internal and external auditing of the Service – whether by State Comptroller, State advocacy, or governmental and parliamentary ranks.[21] The Committee also dealt with the accountability of the legal consultation system that existed at the time of the events in question and held it responsible due to "the stand and attitude and approach of the GSS's legal advisors … There were jurists for whom telling the truth in Court must be a supreme value. Nonetheless, they served in their positions for many years with clear knowledge of the method of lying in court employed by interrogators and did not react …. The Commission is of the opinion that the GSS's legal advisors, who were aware of the method being practiced should have warned, cautioned, and cried out to heaven and earth. Because they did not do so and acquiesced in the situation they came to share in the responsibility to no less a degree than the GSS chiefs."[22] In the concluding chapter of the report the Committee recommended that: "As soon as possible an outstanding lawyer should be appointed to this important position."[23] And indeed, after a short while a prominent jurist was indeed appointed, as head of the division, to serve as the legal advisor to the Service and as a member of its headquarters.

The Fabric of the Service Pertaining Laws: Transparency, Audit, and Control Mechanisms

The explanations included in the Israel Security Agency Law draft provide well-formulated sides of the "triangle of powers", illustrating the tensions between them: authorities and powers on one side, values of human liberties in democratic environments on the second, and opposing them on the third side – limited public control and supervision: "All the security and secret services wield great and varied authorities and powers engendering the potential of violating privacy, freedom, and body of the individual, as well as various social and political values. Despite that, since the activity of these organizations is covert and protected by their nature, the efficiency of the usual control, deterent, and balancing mechanisms existing in a democratic society for protection against the arbitrariness of the regime and the abuse of its power, such as free press, parliamentary criticism, public opinion, and even judicial audit – concerning these organizations is limited. Henceforth, considerable importance is assigned to the setting of efficient institutionalized governmental arrangements and mechanisms for supervision, control, and audit of the activity of the security services."[24]

The fact that the Service, just like the other security and intelligence bodies, is a "closed" organization, obliged in this era to the existence of control, audit, and report mechanisms in its external and internal reference circles. By "internal circle" we are referring to the status of internal audit institutions and the legal counseling of the Service, to be detailed later; here it is important to reiterate the details of the external circle. This circle is nowadays anchored in the control and report arrangements set by legislation and custom originating in mutual respect[25] and in the balance between the three branches – the executive, the legislative, and the judicial, alongside two other "branches" – auditing and the press.

According to the ISA Law, "the agency shall be subject to the authority of Government…".[26] In this context, the government is represented by the ministerial committee for ISA matters, headed by the PM and including four other ministers, participating by the authority of their office; among them are the ministers of defense, justice, and public security.[27] There is also a parallel Knesset committee for ISA matters, which is a Sub-Committee for Intelligence and Secret Services of the Foreign Affairs & Defense Committee of the Knesset.[28] The Law obliges the head of the Service to report at least every three months to both Ministerial and Knesset Committees about the Service's activities and to submit special reports, at the request of each of these committees – all pursuant to rules prescribed.[29]

Paragraph 10 of the ISA Law grants the Service, by special permit from the prime minister, an authority to conduct an undercover search at individual properties for intelligence purposes.[30] In urgent cases, when it is essential and cannot be delayed, issuance of an order to conduct such a search lies within the authority of the Service's head himself.[31] The Law obliges him to submit to the Government's Legal Advisor [hereinafter: "attorney general"] a monthly report on the permits given according to this paragraph.[32]

Paragraph 11 of the Law authorizes the Service to hold a database of communication data it requires to fulfill its missions. It is entitled to receive these data from communication vendors and use it for these ends.[33] The Law obliges the head of the Service to submit a quarterly report to the PM and the attorney general and an annual report to the Knesset committee on the utilization of the aforementioned information during this period.[34]

Paragraphs 7 (b)(3) and 15 impose on the Service the responsibility for fulfillment of the "security suitability" aspect of public sector workers in classified positions. The Service's decision on one's incompatibility with a certain post requiring a certain level of security clearance is a pseudo-judicial decision, which suffices to negate or severely limit his freedom of occupation. Therefore, the Law states that a decision concerning security incompatibility can be appealed to a special appellate committee of three members, headed by a retired district court judge.[35] Thus, the control of the Service's action in this context is subject to external audit by an independent judicial body.[36]

The Law of Secret Monitoring grants the Service the authority to conduct bugging for purposes defined as State security. The Law determines that once every three months a report is to be submitted to the legal consultant of the government about the secret monitoring permits issued on the basis of the aforementioned authorization, and that once a year the joint committee of the Foreign Affairs and Defense and Constitution Committees of the Knesset are to be informed about the number of permits issued in the course of the year.[37]

The State Comptroller’s Office conducts an ongoing audit of the Service's activity. The comptroller occasionally issues a comprehensive report on a certain area he checked in-depth, and this report is discussed by the State Auditing Knesset Committee.[38] In addition, the State Comptroller’s Office also works with the Service under its "hat" as an Ombudsman, as it does toward all other governmental/State bodies.

In addition to the reporting duty references set in various laws as detailed above, there is an ongoing audit of the Service operations through legal procedures of which the Service is a part. For example, the court might examine a concrete action challenged by the High Court of Justice, after passing the preliminary examination of the State Advocacy, as usually happens. The same applies to administrative actions and criminal proceedings where evidence, including classified material, is examined by attorneys appointed to appear in the court in these cases. Activities requiring preliminary judicial inquiry, such as provision of certain interpretations concerning legislation or examination of its suitability to the norms of administrative or international laws, are discussed by responsible bodies in the Ministry of Justice and often even by the attorney general. The same applies to all matters stemming from guiding rulings by the court for future implementation.[39]

Another type of audit is performed by the media. Although there is no formal connection between the secret services and the media, they are not indifferent to each other and have a system of reciprocal dialog, which also contains an aspect of ongoing public control. Another ongoing custom is that of appearance at various Knesset and governmental committees, sometimes to a degree exceeding the law-determined duty, following initiative on the part of these committees. Ongoing reports are submitted within this framework to the government and Knesset committees on given matters.

Thus, even before entering the detailed discussion of the aforementioned responsibility areas of the gatekeeper in issues of internal audit and legal consultation in the Service, it seems that the Service is surrounded and "wrapped" in duties and control, and audit and transparency mechanisms of various types in multiple areas. The annual calendar is rich with points of control, and audit and appearance duties of various responsible bodies in front of the parliamentary, governmental, judicial, and public ranks. In the following sections we shall entertain the intersection between the aforementioned structural skeleton and office holders in the organization, who are supposed to inject substantial content into it.

Authority and Accountability Concepts in a Semi-Military Hierarchical Organization

Before embarking upon a detailed analysis of the gatekeepers' responsibility and authority concepts it is advisable to say something about the responsibility and authority of the management in these organizations. We are assuming that the supreme organizational responsibility dwells at the "management floor". Although each individual in the organization bears a direct responsibility for his actions and omissions, the higher the level of management, command, or leadership authority the person is at in the organizational hierarchy, the more an appropriate extent of responsibility is required from him. The overall responsibility for things taking place in the organization lies then at the senior rank, usually known as the staff or general staff. Security organizations, including ISA and the Mosad, have a hierarchic management-command structure and a legal and ethical culture and arrangements of regime and meaning unique to them.[40] They bear certain resemblance to the custom in military frames, despite being organizations "without uniform" and acting within civilian government offices. The head of the organization bears the overall responsibility for whatever takes place in his organization, imposed on him by the virtue of being the senior rank of the organization[41] both in the sense of direct and indirect personal responsibility, and in the sense of general "ministerial" responsibility, in the capacity of "the organization is I". All the internal processes in the organization, as well as the modes of decision-making are meant only to help the heads of the organization make the right choice, which once received commits all the responsible bodies subject to its materialization, and makes him accountable for its outcomes.[42]

In this respect there is a difference between the intra-organizational and decision-making processes in security organizations and what we know in similar models. In the government, for example, as well as in various corporations, the rule is that decisions are usually received by the majority, unless there is a special legal basis for deviation from this rule. According to this familiar model, the responsibility is distributed between all the partners in the process, between those that supported the specific concrete decision in the voting and those that disagreed with it, reserved it, or showed another opinion (joint liability principle). The democratic principle is not applied in the familiar structure of government offices below the political rank (minister) and in military and semi-military organizations, which constitute subjected support units. The ISA staff, as well as the general staff of the IDF, is a framework assisting the head of the organization to make decisions as part of the management and leadership process of the organization. Unless the staff members agreed to set some other principle, the only person responsible for the quality of the decisions is the organization's head. Members of the staff seemingly have no formal responsibility for the quality of the decisions, unlike the duty imposed on them to participate and influence their fulfillment. We have said "formal", because there is no doubt that in the ethical plane each staff member, whether in the IDF or in some other security organization, is obliged to see himself as bearer of joint responsibility for any decision made by the head of the organization, even if it was received completely against his personal opinion and view. The supreme test of that staff member who cannot "live with the decision" received from his commander, is to submit his resignation from office, if circumstances allow, in order to avoid bearing that joint moral responsibility.[43]

Inside this responsibility texture lie the auditor and legal advisor, each with his "toolbox", authority, and limitations. The individual responsibility of each – beyond that derived from their linkage to the management of the organization – is for the areas with which they are entrusted. Each of them is expected to bear the burden of guarding and supervising the proper functioning of this complex system according to the law and proper administrative regulations. Can they really do it? And if so, how? On this, later.

Main Subjects in Intelligence Organizations Requiring Enhanced Supervision and Control

As a result of its activity, the responsibility spheres of the Service create a meeting of varied professional disciplines with a combination of legal, moral, and ethical dilemmas in various areas. All these require special attention to the way they are executed. A failure in one of them might severely damage public trust in the organization and its activities. Following is a description of the main activities.

Activities lawfulness: We have already mentioned that interception and prevention activity, taking place prior to the actual commission of the complete criminal act, creates difficulty in the existing and customary legal patterns. This difficulty often forces the organization to tread on the edges of lawful space and to rely on retroactive exemptions and defenses instead of clear premeditated authorization – characteristics with the built-in dimension of legal uncertainty. All these require increased caution and taking care not to cross the boundary of lawful actions. The area exposed in this context to the public eye is that of terrorism investigations, involving the question of physical and psychological pressure applied on the suspect, which was accepted by the Landau Committee as justified, but only in cases of necessity. However, there are additional operational issues that may surface, quite often on a daily basis.[44]

The information and its usage: An intelligence organization "makes a living" from gathering information and using it for its designated ends. The information is gathered by varied tools used by information collection agencies and a series of means and methods of operation, each of which rely on a separate legal basis. The fashion of information collection, preservation, accumulation, and usage engenders enormous potential, accompanied by the risk of violating privacy, dignity, or liberty of the individual.

Intelligence assessment quality: The Service, among others, is entrusted with the analysis of information and the ongoing effort of research and preparation of expert opinions for senior political ranks and other statutory bodies. This activity obliges it to meet strict professional standards and utmost professional integrity. Any bias or mistake in information analysis or in the documents stemming from it, whether or not intentional, might generate mistaken decisions and even cause, directly or indirectly, damage of strategic consequence.[45]

Quality of report to the control and supervision systems: We have already mentioned the circle of control, supervision, and transparency mechanisms imposed on the Service by virtue of laws it operates under.[46] But surely these reports lack any real meaning if they do not contain complete and reliable information. Although it is the duty of information and report-receiving bodies to demand complete information and exert pressure when this is not the case; eventually, the quality and completeness of the report depend on the reporting party. A partial report is often worse than a misleading one. Precision and completeness in the reports are vital for preservation of public trust. And although in security and intelligence contexts there are frequent reservations concerning confidentiality and secrecy required for protection of vital interests such as information sources, operations, and methods of action, these are insufficient to detract from the duty to provide a full and complete report – by due insistence on preservation of obvious secrecy-keeping arrangements.

Distribution of resources and manpower utilization quality: Like any other organization, the Service has limited resources, whether concerning budgets, manpower, or technology-computer resources. The allocation of these resources follows orders of priority, which are supposed to be determined in light of the analysis of future reality and involving situation assessment. Any bias in the sphere of resource allocation and utilization, for whatever reason, might severely disrupt the appropriate agenda of the organization and impede its abilities.

Privacy violation: Any intelligence organization, especially one dealing with internal security, faces a difficult constant dilemma concerning the right balance between the needs of information procurement and violation of individual rights and privacy. The question of how vital the ways of information procurement, utilization, preservation, and protection are within the circle of those that share it, is the key question in the ongoing work, while the contradicting motivations – legitimate as they are – make the decision ever more difficult.

Proportional Policy: The tension between the allowed and prohibited enforces a policy of power restraint and proportional utilization of the tools, prerogatives, and resources. The Law entrusts these in the hands of the organization and its workers, and their utilization to a considerable degree is subject to their professional discretion. At the declarative level the principle of proportionality is easily agreed upon. On the practical plane, however, any consideration of contradicting interests and execution of power restraint are very complex actions requiring skilled decision mechanisms and "bars", anchored in their normative respect in the gauging of the deviation from the "red line".

Discipline, professionalism, and ethics: The work in semi-military organizations with special missions and unique sensitivity requires deep commitment in the spheres of administration, discipline, and ethics. Foiling missions involves covert work that exploits information resources and authority of a unique nature, and utilizes stratagems directed against the opponent, all of which occur in an operative environment characterized by considerable factual and legal uncertainty. The mechanisms installed to clarify these issues must function according to unique standards that take into account these special constraints and conditions without diminishing the highest level of professionalism. The professional and ethical standards[47] expected from the worker are usually an outcome of the culture the organization developed within itself, with limitations concerning other vocational areas. These circumstances increase the temptation "to forgive" and pardon an act done in circumstances of operational need, whether due to understanding the weaknesses of the worker who faltered when he acted not for his personal benefit but for the good of the State, or due to the fear that each investigation and examination engenders the potential to extend the circle of those complicit to the secret and participation of "external" factors in the information about sensitive operational activity and the acts and omissions involved in it.

Political affiliation and bias: A vital topic requiring meticulous scrutiny is the area of neutrality in areas tangential to the political-statesmanship arena. Naturally, the connection between relevant issues is frequent in political debates and the constant proximity between the professional and senior political ranks in matters of secrecy might arouse suspicion of foreign influence on professional consideration. All these oblige greater strictness, caution, placement of barriers and reservations, and maximal control and transparency for the benefit of the public eye and preservation of the public trust.

The gatekeepers are expected to pay maximal attention to these and other factors.

Internal auditing in the service – a multifaceted system

The normative framework

Although internal auditing as an institutional mission is quite young,[48] the internal auditing institution in the ISA has existed for many years. There is no need to elaborate its centrality and essential role in securing the Service's proper functioning and preservation of the trust of the public and other governmental authorities in it and its actions. The face of this institution changed considerably under the circumstances of the times and according to the legal conditions and arrangements of the period. Thus, for example, during the latter half of the 1980s, in addition to the classic audit functions, the internal auditor was in charge of the examination of complaints by the interrogated suspects – a responsibility transferred from him to the Ministry of Justice. During the years two other responsibility areas were added to his basic roles – he became in charge of the workers’ and public’s complaints.

Prior to legislation of the Internal Auditing Law[49] (hereinafter Auditing Law) in 1992, the internal auditing institution in the Service operated according to administrative regulations[50] that were customary in all government offices that had an internal auditor. The Auditing Law set for the first time the duty of existence, by virtue of the law, of internal auditing in public bodies,[51] as well as several basic arrangements designed to materialize this duty. Thus were determined the ways of appointing the internal auditor[52] and termination of his term in the office,[53] the skills required from him,[54] his roles,[55] subordination,[56] and reporting duties,[57] as well as instructions concerning the management of the audit process, such as the duty of discussing audit findings,[58] approval of his working plan,[59] access authorization and the duty to provide him with information and documents,[60] instruction on the matter of audit admissibility constraints as evidence,[61] sanctions,[62] etc.

The ISA Law, which was legislated a decade after the Auditing Law, set several unique regulations for internal audit in the Service. The Law determined that, as a rule, the auditor would conduct internal audit according to the instructions of the Auditing Law.[63] The basic legal infrastructure to conduct an internal audit in the Service, therefore, still rests on the general Internal Auditing Law. An internal auditor's basic roles are specified in the Auditing Law and are mainly to check whether the activities of the body are proper from the aspects of law, proper management, moral integrity, efficiency, and economy; whether they help to achieve their intended goals; whether the instructions obliging the audited body are followed; whether the decisions are made according to proper norms; and whether the management of assets, liabilities, property, and moneys is appropriate.[64] He also must ensure that the defects indicated in the State Comptroller’s report, if any such report was issued, were amended.[65] The ISA Law established supplemental instructions through introduction of several changes, some of them quite significant, in the overall arrangement. As a result, unlike in the general arrangement, the auditor is appointed by the prime minister after consulting with the head of the Service;[66] in order to strengthen his independence, the auditor is appointed to one pre-determined period of five years, at the end of which he will not fulfill any other office in the Service;[67] the auditor can be suspended only by a ministerial committee;[68] the auditor, besides his usual roles as internal auditor, bears the responsibility of assisting the government and ministerial committee in Service-related matters in the fulfillment of their roles and the duty to perform other roles and missions the PM and head of the Service might impose on him;[69] the auditor submits an annual report on his findings and periodic reports prepared not only for the appointing PM but also for the head of the Service and the relevant Knesset and ministerial committees.[70] The Service's head, with approval from the PM, is entitled to order the auditor to fulfill the roles of being in charge of the complaints of workers in the service and for the treatment of public complaints, except in certain matters predetermined explicitly.[71] In order to fulfill his role, the ISA Law elaborates and emphasizes the auditor's right of access to any "information document or location" and determines that these shall not be withheld from him on grounds of confidentiality or secrecy.[72]

Perceptions and notions in the world of auditing

The world of auditing acknowledges several points of view or major conceptual approaches that often intertwine and supplement each other but often also contradict one another.[73] One standpoint discerns between an audit from outside inwards and the audit from within the organization into its various "corners". An auditing body of the former type looks at the audited body from the outside ("external audit").[74] By the nature of things, his approach is an objective one with a "judicial" outlook, though not neutral or uninvolved in the ongoing lives of the audited body. This type of audit examines the audited subject through "emotional distance", retrospectively, and to a considerable degree using the advantage of retroactive wisdom. Interference with a "living subject" is perceived as something irregular, and explained, in appropriate cases, by special arguments.[75] As a rule, audit perception of this type is characterized by a mode of action of the State Comptroller’s Office that operates on the principles of the State Comptroller Law[76] that reflects this approach. Its basics stem from the fact that the State Comptroller is appointed by the sovereign (the Knesset), derives its power from it, and presents its findings to it. This fact strengthens the need for careful separation of authorities and non-interference in the ongoing operation of the executive branch, authorized to plan its conduct as it deems fitting.[77]

An auditing entity of another sort is part of the organization's administrative system ("internal auditing"). Here, the auditor is the "long hand" of the director or management in the sense that he serves as a sort of sensor, able to point toward malfunctions as they occur or prior to them, and aid in prevention or rapid solution soon afterwards. This audit approach is usually employed by internal auditors operating by virtue of the Internal Auditing Law, which can be interpreted as reflecting it. These auditors are usually appointed by the management of the bureaus or bodies they're serving, and are the ones to whom their findings are submitted.

Another conceptual division is between the "retrospective" audit and one that accompanies the events as they unfold and expresses its opinion about them in "real time" or as closely as possible. The former approach reflects the classic meaning of audit while the latter gets much closer to the term "control".[78]

It is obvious that on the axis of all these approaches and ideological divisions that seemingly contradict each other at their axial points, we can identify a spectrum of intermediate states determined de facto by the nature of the organization, professional perception of the auditor in the respective body, standpoint of the audited body's management, etc. Among these intermediate states we can find a combination of external audit utilizing mutually and harmoniously supplementary tools of immediate involvement and an internal audit that checks issues from the distance of time and simultaneously refers to the ongoing enterprise.

Each of these approaches is professionally unique, with its tacit advantages and drawbacks. The advantage of external audit lies in its ability to be more indifferent and less affected by the "spirit of the organization", thereby avoiding bias in its favor in light of the varied constraints imposed on it. This is also the background of criticism that is often directed against it. We frequently hear claims concerning the audit reports of the State Comptroller, accusing them of being "detached from reality", auditing for the sake of audit and not for a real amendment of the flaws, refusing to acknowledge the operational constraints of the work in the office they are auditing, passing on their criticism in light of the results and using retrospective insight, offering late findings that are already irrelevant when published, and similar claims.

Internal audit's advantages include being assimilated on a permanent basis within the organization, intimate familiarity with it, being close to the heart of the events, and being able to fix the flaws "through movement". The drawbacks this audit arouses are the fear of over-identifying with the organization and of being too lenient with it. It can be said that both approaches supplement each other and that each of them matches the environment it operates in and its guiding goals.

Internal auditing concept in the Service

In light of the fabric of laws regulating the internal audit of the Service, the following question arises: which of the two aforementioned approaches did the legislature intend regarding the audit institution in the Service? The auditor's subjection to the Auditing Law provides some basis for the assumption that the dominant perception should be close to the aforementioned internal audit. On the other hand, the aforementioned discerning instructions in the ISA Law impose additional roles, reporting duties, and unique obligations on the auditor, and even provide him with mechanisms of independence that do not exist for the ordinary internal auditor. Discussing a case brought before it and dealing with the question of legality of the Service's auditor, this is what the Supreme Court had to say in relation to the auditor's special status:

"These fundamental principles receive extra importance also in light of the special role of the Service and its status. Indeed, by the nature of things – and as declared in the Law itself – the ISA bears special functions. It has extensive authority. The Law determines that the ISA's goals are, among others, 'the protection of State security and the order and institutions of the democratic regime … and other state interests vital for national state security' (Sec. 7 of the ISA Law). Its extensive aforementioned powers, granted by the Law, include receiving and gathering of information, interrogation of suspects, searches, and more (Sec. 8–11 of the ISA Law). Most of its actions are covert by nature (compare with sec. 19 of the Law). Therefore The role of the ISA auditor is also special. Indeed, this auditor has powers usually reserved to the internal auditor, but his role in the ISA Law includes additional powers, which also relate to aspects located outside the work of the internal auditor according to the Auditing Law. Thus for instance, it was set (in sec. 13(c) of the ISA Law) that the Service's auditor will 'assist the government and ministerial committees in the fulfillment of their roles'. It also was determined that 'the Prime Minister is entitled for this matter to impose on the auditor additional roles according to rules to be set' (ibid. Also see section 13 (e)(5) of the ISA Law). The head of the Service is entitled to order the Service's auditor (with the prime minister's approval) to deal with complaints of the Service's workers as well as treatment of the complaints against the Service (sec. 13 (s) of the ISA Law). Indeed, the powers of the Service's auditor constitute a central layer in the framework regulating the operation of the ISA; a layer focused on regulation of supervision, control and audit."[79]

Indeed, there is no doubt that the legislature imposed on the internal auditor in the Service a complex and extra-responsible role with a double commitment.[80] Under his ordinary "hat" as internal auditor, the auditor is duly liable to the head and management of the Service; under the hat of a person obliged to report to the political and parliamentary ranks above the Service, he must view the organization from above and with critical-external vision reflecting the nature of the supervision duty of the external authorities above the Service. Consequently, he must serve on one hand as a factor assisting to trace problems in the organization and (on the other to) recommend to its head on how to prevent or solve them.

In this respect, he should be alert to the needs of the organization and orders of priority set by its management and act accordingly as long as it does not conflict with his other duties. At the same time he should examine the ongoing functioning of the organization through the eyes of the political and parliamentary ranks in order to submit to them the information they require to fulfill their mandatory duties. The following question can of course be asked: was the legislature right in defining the Service's internal auditor as wearing "two hats" that might suffer from contradiction, contrasting interests, or duality as a result of "double loyalty"? Perhaps it was more correct to separate the internal audit function and the independent focused external audit from the organization, as in some other countries.[81] However, once the law was legislated as it was, it should be injected with the right contextual content even if it involves perceptual and practical difficulties. It should be noted that the commitment to the appointing and supervising rank is not simple: following our knowledge of the ways things work here, the auditor should not expect to be guided in a precise and concrete fashion by the political or parliamentary ranks about their expectations. Questions and claims would arise, if any, only following malfunctions or when the public attention becomes focused on this or another matter. The responsibility cast on the auditor's shoulders is to try to avoid a collision between these two areas of his responsibility. This feat is achievable, although it obliges intelligent and calculated utilization of the powers and tools entrusted in his hands.

Questions to discuss regarding internal audit in the Service

Vitality on one hand and complexity on the other require formulation of professional perception referring to all the issues involved in the performance of the audit function. The fact that the status of the auditor derives from two laws somewhat differing in their basic perception necessitates orderly thinking concerning a series of questions this reality might spawn. Now we shall deal with ten such questions, which we shall attempt to answer in the following sections.[82] Separate discussions take the place of the question: Who is authorized to answer policy questions of this sort – the auditor himself, management of the body he works for, or some other function.

1. What is the concept of the audit institution in the organization – in the eyes of the organization and its management, and in the eyes of the auditor – loyalty to the organization or loyalty to the public?

The answer to this question might determine several issues, such as in the formal question of whether the auditor is a part of the senior acting management of the organization, participating in its meetings as a member with equal rights and duties and consequently taking part and bearing responsibility in the decisions of the organization. Sharing responsibility in organizational decisions naturally limits the freedom of the audit. On the other hand, some people might argue that such partnership can improve the decisions in principle – a considerable advantage in a complex reality. Active participation enables the auditor to be acquainted with the small details in real time and thus grants him the advantage of knowledge and relevancy. Any partnership involving taking part in responsibility increases the trust of the organization and its people in the audit personnel. Trust generates openness and availability, which are very important components in the ongoing auditing effort, because of their long-term "dividends". On the other hand, an auditor whose job includes a central component of control and counseling will expose himself to the claim that he abandoned his main mission to deal with a classical audit. An auditor acting as part of the organizational hierarchy would naturally be committed to the organization and its head. His access and commitment to the political and parliamentary ranks might be limited, contrary to the basic logic of the legal arrangement he acts upon; his loyalty to the public might suffer as a result.

2. What is the linkage between the audit institution and other control factors in the organization?

Internal audit and ongoing control are substantially different areas of engagement and responsibility, even if they share similar characteristics and not just their shared Hebrew lingual roots.[83] It is known that internal audit in the organization is not the only controlling factor, and that other control and supervision functions are common in various subsidiary units as a structured part of the management system. Is the audit institution set in charge, administratively and professionally, of the other control functions? What is the desired managerial and professional linkage between them? Does the auditor audit just the control system, like any other system in the organization, or use it to execute his responsibility? Tight professional and managerial linkage between the control and audit functions can grant some advantage to the central audit function. From the contrary viewpoint it can be argued that this might impede the independence of functions decentralized in the organization and thus detract from the effectiveness of close and ongoing control and its ability to self-amend malfunctions. Casting managerial responsibility on the auditor toward various control factors introduces him to spheres where he has no evident advantage, whether in aspects of management or professional competence in the issues in question. In any case, it is important for the distinction between the two engagement and responsibility areas to be known and structured for the organizational environment in which they are operating in parallel. Confusing and mixing the two areas might detract from the effectiveness of both and their useful combination. Tight functional closeness between them might raise the claim of mixing authorities, together with artificial external influence on "self-repairing mechanisms" of the various units, which are essential to their stability.

3. What is the relation between the core functions of internal audit and the additional roles fulfilled by the auditor?

The Law does not allow internal auditors to engage in other areas of responsibility.[84] The reason is clear: to prevent them from engaging in questions that might involve contradiction of interests between the role of audit and these additional areas. Nevertheless, the Law recognizes the possibility of minor exceptions, usually in cases posing some connection between the additional fields of engagement and the audit function, such as being in charge of public or workers’ complaints. We have already mentioned that the ISA Law grants the head of the Service, with the approval of the prime minister, the right to order the auditor to fulfill the two aforementioned roles as well. If the prime minister did not impose one of these roles on the head of the Service, the Law determines that the prime minister should appoint another person to fulfill it.[85] It must be said that the aforementioned legal arrangement is not free of doubts. The worker complaints ombudsman is usually identified as a person whose right to exist, as well as the trust he enjoys from the workers, stems from his duty to assist them. Thus, he is a priori portrayed as adopting a pre-determined position in the argument between the worker and organization and might lose the level of objectivity required from an internal auditor. The ombudsman[86] is a public trustee appointed to examine and answer correctly the complaints directed against his organization by private individuals. According to the approach that sees the internal auditor as a man of the organization and often as part of its management, there is a risk that he might encounter difficulties in objectively examining cases or processes in which he had part or some degree of personal or joint responsibility. Hence the approach arguing that the internal audit function should not be shared with other roles, not even those that seem to come from the "same professional family".

4. What is the degree of authority of the internal auditor to interfere in “live processes”?

Seemingly, the auditor's advantage is in the degree of his remoteness and objectivity when he examines mistakes, malfunctions, and processes, and his ability to review the events when the dust of commotion has already settled. His most prominent drawback is that a report on events that have already ended has limited effectiveness in the matter of their amendment. Hence, the obvious temptation of any comptroller, and the internal auditor in particular, to intervene in events as they happen. Is it desirable? Is there no fear that such involvement might affect the decision-makers in real-time and disrupt the familiar rules of responsibility and authority? This is a principal question accompanying every discussion of the audit roles on various levels, and answering it depends on the circumstances of the organization within which it operates and the given circumstances.[87]

5. How deeply should the audit interfere in operational processes?

Seemingly, it is unjustified to make a distinction between administrative and operational working processes. The role of an audit is to deal with any organizational process and every organization has several core subjects unique to it, alongside the administrative/managerial issues that resemble each other in various organizations. The operational process, however, is characterized by exercising professional judgment linked to the "warlike" nature of the organization's goals. The operational process is often accompanied by time constraints as well as tensions stemming from fear for the safety of the troops and similar considerations. There is no similarity between examination of decision-making method appropriateness or the order of stages toward preparation of an intelligence situation evaluation document by a research unit and an operation of apprehending a wanted suspect. In the second case the uncertainty at the early stage of the process for its future development is considerable, and there is much greater room for local decisions and consideration of managers and commanders at various stages of the operation. Audit examination of the various stages of the operation, including decision nodes, necessitates a more complex examination of the events. This is a question that should be answered in the formulation of the position description.

6. Can the auditor serve as an advisor?

At times organizations tend to use their internal auditor to get advice. The askers can be the management or some other part of the organization or some other interested party. This tendency seems to be natural and correct, considering that the auditor seemingly has extensive experience in the lives of the organization and the advantage of uninvolved review. The auditor is often perceived as a sort of "judge at the city gate” or "elder of the tribe", and similar metaphors (which may be justified or wrong in concrete settings) that grant his position moral validity beyond mere understanding of the specifics. The question is whether such a request for assistance is the right thing to do. The fear is that by providing advice the auditor might lose his non-involvement advantage when he examines things – whether pertaining to the specific matter his advice is needed for or is not relevant to him – and fail to execute his responsibility. This fear increases in cases where the appeal for advice from the auditor is not done in good faith, i.e., when it is intended in fact to "neutralize" his possible criticism in the future or bind his options to a certain stance, by being consulted in advance. Obviously, an intelligent experienced auditor will take care to avoid this conflict or condition the submission of his standpoint on receiving all the factual data. One way or another, the issue of "consultation right" with the auditor requires scrutinizing it on the conceptual plain in order to formulate clear definitions and defensive mechanisms free of mistakes or being misleading.[88]

7. Is it appropriate for internal auditing to deal with questions of policy?

The natural tendency is to leave the area of policy in the court of policy makers and focus on monitoring and examining its implementation. However, the audit offers the advantage of the ability to see the larger picture from the perspective of time and space, and also of referring to questions such as policy formulation quality and even the quality of the policy itself. In all matters concerning state auditing there is room for the claim that policy belongs to the statutory ranks and that the auditor should only monitor its implementation. Any interference beyond that can be interpreted as interference in the democratic process and mixing between the branches.[89] In the more limited context of internal auditing in an organization such assumptions are weaker and the remarks concerning policy wisdom, not to mention its legitimacy, proportionality, feasibility, etc., might be perceived as legitimate and even desired and beneficial to the organization.

8. Legal counseling for the internal auditing institution – how?

Simply, an internal auditing system requires professional legal advising to no lesser and maybe even a greater degree than any other form of counseling. Legal advising in a government service and the executive branch in general is subject to the attorney general. The rule is that the attorney general acts as the authorized interpreter of the Law as long as the court did not determine otherwise. Likewise, the current custom is that the authority of the advisor refers to governmental and other statutory bodies.[90] The question: who is in charge of legal counseling to the State Comptroller, with all his varied roles – controller and ombudsman, is a disputed one.[91] One must assume that the dispute reflects the question of State Comptroller's office’s status as an independent authority among the authorities comprising the democratic system.[92] Concerning the matter of the internal auditor’s subjection in a unit belonging to the executive authority in matters of law and jurisdiction, the agreement is that he is subject to the attorney general.[93] The obligatory linkage between the legal position endorsed in the checks performed by the internal auditor and the obliging position of the government detracts something from the independence of the auditing body. This state of affairs becomes especially evident in conjunction with the auditor's functions under his other "hats". An independent legal opinion, which is not on the "government legal advisor axis", might put the state in an embarrassing position against the complaining citizen. Consequently, it is clear that it would be intolerable if inside the organization there were contradicting legal opinions of similar normative weight without the ability to decide between them without court interference. Anyone thinking otherwise on a principal question would consider it a necessary tolerable price in light of the correct perception of the internal auditor’s role.

9. What are the reporting duties of the internal auditor?

The duty of reporting and responsibility in the Auditing Law is varied and dependent on the institution for which the internal auditor works. Thus, for example, an internal auditor in a governmental office should report to his superior, who, according to the law, is a minister or the GM of the office for which he works.[94] Regarding government office bodies or units that are not subject to the general manager of the office, the person in charge is their manager. The specific arrangement depends on a government decision.[95] As for some additional bodies mentioned by the Law – the reporting is done to a specific, explicitly stated office holder: accountant general regarding the Accountant General and its branches in government offices; governor of the Bank of Israel concerning the Bank of Israel; chairman of the board or GM of a government company – as set by the board.[96] In addition to the aforementioned reporting duty, the Law also orders the internal auditor to report to the minister in charge – even if he is not included in the first circle of reporting – and the GM of a public body that is not a governmental office.[97] According to the Auditing Law, before the legislation of the ISA Law the Service auditor’s reporting duty was to the head of the Service, in his capacity as the director of the unit, and to the PM as the minister in charge of the office. The auditor was directly accountable to the head of the Service. The ISA Law clarified the existing obscure situation and set a special explicit arrangement concerning the nature of the auditor's superior officer and his reporting duty: the auditor's superior was now the PM, although the head of the Service was entitled to order him to fulfill additional audit missions.[98] In addition to the Service's head and the PM, the reporting duty was extended to the Ministerial Committee and the Knesset Committee for the Service.[99] Special arrangements were also elaborated concerning the auditor's independence.[100] The fabric of law provisions and the combination of Audit and ISA Laws show that the internal auditor's status and audit perception in the Service differentiate him from ordinary internal auditors in both the sphere of responsibility and reporting duty, and in his independence and non-dependence on his surrounding environment within the organization. This special status requires practical translation into a special working perception.

10. Is it appropriate for an organization to have its principal values set by the audit institution?

The study of audit reports to amend the immediate flaws is nothing but natural, but these reports also offer long-term value in assimilation of the valuable matters that can be produced from them. Therefore, the question is whether this audit is the one that sets organizational norms.[101] To a certain degree this topic intersects with the issue of value weight of the court rulings and especially those of the Supreme Court. Transforming these institutions from "reality interpreters" (and for our matters the Law or audit findings) into behavioral code formulators is not obvious. This is an open question that also concerns ethical principles presented in the conclusions of the various investigation committees. It is tied, at least concerning the courts, to the wider question of proper degree of judicial activism, interpretation theory, and other questions related to the area of legal and political and state science philosophy.

The Recommended Internal Audit Model

The discussion above implies that the Service's auditor is located at a unique "geometrical" point in the space between an ordinary internal auditor and the external auditor, such as a state comptroller.[102] He is equipped with the basic working tools of the internal auditor but also enjoys "upgrades" provided by the ISA Law. Although he is required to produce additional reports to various government ranks above the Service, simultaneously, in light of his linkage and access to bodies in charge of the Service, he is protected by special defenses that grant him the ability to function independently and self-sufficiently without fear of interruption or plotting on the part of the management of the body where he works. What is the audit perception he should adopt to exploit all the advantages and powers at his disposal and utilize them to protect the unique and sensitive organizations he is supposed to serve?

First, an internal auditor in the ISA (and similar bodies) should position his status as a separate entity from the management of his organization. We do not mean of course that he should sever his ongoing working contacts with the various organizational bodies and members of staff and management in charge of them, but that from the structural perspective he should not be considered a part of the organization management, and that practically he should not serve as a member of the organizational staff or share the responsibility for its decisions. He is of course entitled, at his discretion, to be present in person or through his proxies at any discussion held and in every administrative, managerial, or operational framework at any time and place – but only in the status of observer, as part of his need to enjoy direct access unlimited by classification and sensitivity, and see all the relevant materials whenever required. It is important for this special status to be clear to the whole organization and its management. There is no reason why the auditor should not ask for and study the facts, and even help to sharpen the standpoints in any discussion or managerial framework, but he should exercise caution not to deviate from his non-committed position. He must take into account that any active involvement in the decision-making process turns him into, or might cause him to be perceived as, a partner in the quality and essence of the decisions. Such partnership would limit him in his attempts as an auditor, to examine the quality of the decisions and/or pertaining processes.

The audit institution must preserve its status as an objective body both inwards and outwards. The obvious conclusion is that it is desired to separate the role of internal auditor from the role of the officer in charge of workers’ complaints and public ombudsman. The fear is that in his role as reviewer of workers’ complaints he might find himself obligated first of all to the protection of the workers' status, a fact that determines the level of trust they have in him and is the major measurement index of his success. Thus he might be perceived as taking a side in a possible argument against the management of the organization. This is an undesirable situation, which might harm his level of objectivity during his current functioning. As an ombudsman he is required, as described above, to endorse the objective approach of a public trustee, a stance that does not adequately fit the approach seeing him as the "long hand" of the head of the organization. However, once we have determined the basic standards of the internal auditing profession, as well as the existing laws, obliging him to be objective and structurally separate from the management of the organization, there is no conceptual reason preventing the Service's auditor from also serving in charge of the public’s complaints, although it would be undesirable. Under these two "hats" he should examine the subject matter of the complaint or audit from a neutral perspective without prior commitment, except for his commitment to reach the correct findings and supply a correct report. Indeed, there might be cases in which his commitment toward the external appealer might contradict what seems to be the best interest of the organization. Such a problem might surface in cases where prior to the initiation of judicial conflict between the external party and the Service a public appeal is submitted, whose examination might even serve as a basis for the ensuing legal proceedings. In such cases, the auditor must be cautious where he treads, not to impede or handicap the operation of the organization by putting it in an inferior position in defending its rights. In these cases the auditor should be coordinated with the legal consultation bodies in the organization prior to answering the appeal. In a case of evident factual dispute, his absolute duty is to learn all the circumstances. This of course should not contradict situations where the timing of the answer and definition of its scope would be coordinated with the position of the organization, mainly in cases where it is obvious that the appealing party is heading toward legal confrontation in the court of law. As mentioned, the legislator did not foresee, so it seems, the existence of fears of the types mentioned above and the law enables – although it also provides another option – imposing these two additional duties, indiscriminately, on the auditor.

The auditor is entitled to investigate "live" processes as these occur and monitor their development in real time. This is his main advantage as a person acquainted with the ongoing activity in the organization. However, concerning producing remarks, including those that might be perceived as instructions stemming from the findings he raises in his criticism, he must be restrained and calculated. He must weigh the necessity in an ongoing audit versus the alternative of a retrospective audit, when the recommendations are no longer relevant and the correction arrives after the occurrence of the malfunction or defect. If he chooses to utilize the irregular authority of retrospective audit, he should exercise it carefully, in calculated fashion and not routinely, taking other concerns into consideration. First, that his interference as things occur might arouse suspicion among the authorized officers who bear the burden of responsibility. The possibility of system paralysis under the threat of investigation or inquiry is intolerable and must be avoided at all cost. Second, that such interference as the events unfold might cast on the auditor the responsibility for the outcome and cause him to lose the ability of objective scrutiny. The third concern is that issuing instructions throughout the process might drag the organization into legal and other unwanted complications. Therefore, the auditor should adopt such an active approach only in evident and special cases. He should transfer his findings as soon as possible to the audited body or organization management with recommendations for cautious treatment that would not harm the ordinary course of events. The auditor should intervene and raise the "red flag" in front of the organization’s management together with recommendations for proper conduct only in extreme cases, such as a fear of entrenched corruption, evident lack of institutional authority, or radical lack of rationality in judgment, including violation of the law.

The auditor is entitled to examine the appropriateness of operational processes as well as those of administrative and other processes. As a rule, he would avoid intervening in them as they occur, preferring to deal with them retrospectively in order to learn and amend them for future use. During his examination he must discern clearly between the procedural components and operational decision nodes, in which he would interfere only in situations raising suspicion of law violation or extreme negligence and lack of rationality. As a rule, it is preferable to examine these processes within the frame of the inquiry apparatus[103] and the audit system of the organization, which is designed for such a purpose. The auditor reserves the rights and duties to examine the fashion of the inquiries and other organizational investigation and examination processes and their quality. If he finds a characteristic line deserving attention in light of several inquiries, he should direct the attention of the organization to this state of affairs.[104]

The auditor is entitled to ongoing and professional legal counseling in all his actions. The counseling must be a part of the standard legal advising axis in governmental offices, i.e., part of the legal counseling system of the organization and be an extension of the attorney general. Only in cases that evoke questions of evident contradictory interests or a fear of bias, would it be legitimate to erect a special framework for judicial examination of the specific case, relying on the legal counseling system of the state and coordinated with the organization’s legal counseling system. The linkage between the auditor and the organizational system of legal counseling is a complex one, because the quality of the legal counseling system is not subject to the audit of the internal auditor. The auditor is entitled to examine topics such as efficiency, integrity, and administrative normalcy of the legal counseling system, but in the sphere of legal expertise he must refrain from interfering, to a degree of restraint required in every major scientific-professional discipline, especially because this system is professionally subject in a specific and clearly defined way to the attorney general only.

The auditor of the Service must fully utilize the freedom of access granted him by the Law to receive information about what takes place in the organization. He should arrange a system of control over all the information related to events and processes in the organization so that the subject defined as interesting him would indeed reach him, enabling him to study in-depth any worthy subject. In the concurrent technological era of controlling the information load, such a task becomes feasible by using specially adjusted information control systems.

The reporting duty of the auditor toward external and internal factors is central to his work. The contents and essence of this duty differ toward each of these factors, and therefore he is obliged to formulate a mode that suits reporting to the head of the organization and its management, and toward the external factors in the government and Knesset. The reported themes, such as their relevance to preservation and control over the service are different. The report should be accompanied by a discussion of the audit findings and tracking execution of the required amendments.

The internal audit institution in the organization should be well connected to all the bodies of ongoing control in the relevant units in spheres of update, information transfer, and monitoring of the control activity. At the same time, the control system must not be subject professionally to the auditor, because these are two different and separate professional disciplines. The control system is part of the "operation software" or self-repair and rehabilitation system of the unit, and therefore must be subject to the unit's management and function inside its inner dynamics in order to produce the best outcomes without disrupting the customary order of authority and responsibility or paralyze the judgment of those concerned. The internal auditor, on the other hand, is entitled and even obliged to conduct an audit of the organizational control mechanisms just as any other subject of his audit.

The internal auditor must take care in everything concerning provision of counseling and advice. We have already discussed the obstacle this matter can create. In special circumstances, he might prepare a standpoint paper on the question he was asked, but only after taking care to receive all the information details he is supposed to rely on and after examining the circumstances of the question's submission. As mentioned, he should be aware of the fact that his involvement in the expertise limits his authority to scrutinize it when the time comes.

The internal auditor might monitor the policy of the organization and its implementation. He should encourage clear and coherent formulation of the policy in various areas so that it can serve the management of the organization in setting directions and marking trends. However, he must restrain himself when he examines and audits the policy itself, unlike the way it is formulated or implemented. This separation of organizational branches necessitates caution in reference to the policy itself, its wisdom and quality. This implied caution does not mean complete avoidance of dealing with the quality of the set policy. The auditor might monitor the shaping of policy as well as the changes occurring in it from time to time. He is entitled to demand clarifications concerning policy contents and indicate the obvious questions. If he thinks that the policy deviates from reasonable boundaries, there is nothing preventing him from mentioning it and asking to discuss it to clarify matters.

The internal auditor is not responsible for determining the norms and ethics of the organization. Despite his temptation to assume responsibility or that of the organization to impose this task on him, it would be better if the area of setting the norms was dealt with by those proxies of the organization's management in charge of it, rather than the audit and control functions. The auditor might even be obliged to present his findings and recommendations, and to encourage formulation and update of the ethical rules for future organizational use, but not to dictate them. Such subject-matters are better discussed and determined in the appropriate institutions of the organization itself, so that they are designed correctly and appropriately.

And finally, an important component of an auditor's ability to fulfill his mission is the trust he has from the organization members. The "threatening" and deterring aspect of the mere existence of ongoing audit – because every component in the audited system takes into consideration possible examination of its actions – demands creation of a necessary level of trust, which in its turn requires effort and education. The more external and remote the auditor is, the more difficult acquisition of trust and its preservation becomes. Finding the intermediate "golden denominator" is a professional and human challenge of the first degree.

Where should the auditor's style of action and the perception of his mission be determined? In light of the discussion above, it seems that the matters are anchored in the professional perception the auditor himself must apply and implement. However, since things are not unequivocal by nature and rather depend on the changing circumstances in the organization, it is desired that the final form of the audit system operation be determined following discussion between the auditor and the organization's management. The right of final decision should obviously be reserved to the auditor, but he should make it after hearing the standpoint of the organization, presenting his own position and participating in an open process of elucidation and discussion.

Legal Advisor in the Service – Substance and Dilemmas

Background

A legal advisor in an organization, similarly to the internal auditor, is a gatekeeper too,[105] but his responsibility and status are of a different type. While the reference point of the auditor is somewhere along the spectrum of possibilities between looking in from the outside to the inside looking at the "corners" of the organization, i.e., on the spectrum of tension between uninvolved pseudo-judicial control to involved control, the legal advisor in the organization is fully located inside the world of organizational activity. As such, he is a full partner in all the activities and responsibility areas in which he is involved. As a gatekeeper, a legal advisor in a government office has the responsibility "… to exercise authority as appropriate and right, according to the Law and basic principles of the Israeli legal system … for preservation and strengthening of the rule of law and functioning based on proper anchors."[106] A legal advisor in government offices is subject professionally to the attorney general and in fact is his "long arm" in the office.[107] The questions we must discuss in depth refer to the various angles of his professional responsibility and scope of involvement and influence in the lives of the organization beyond the narrow professional plain he is entrusted with. We have already mentioned[108] the criticism passed by the Landau Committee on the failure of the legal advisors in the General Security Service "to alarm and cry out for heaven and earth" and on the method employed in the Service. The committee also said that accepting the existing situation turned them into "accomplices in responsibility to no lesser degree than that of the heads of the service". It seems – at least by the familiar standards – that these words are an abstraction. In cases of evident law violation there is no doubt that any office holder in the organization, and certainly a jurist whose areas of expertise and status in the organization grant him an advantage and whose professional ethics obliges him to avoid this and when appropriate to alarm and pass the information to the authorities of the law, should deal with them as with any violation of the law. Harsher questions arise in connection with more complex situations, in vague intermediate situations, and in circumstances involving legitimate contradicting interests.

The distinction between attorney general and legal advisor in a government office

According to the existing perception of public administration in Israel, a legal advisor in a government office or national authority belonging to the executive branch acts as a proxy of the attorney general. The opinion of the attorney general obliges the executive branch as long as the court did not say otherwise, and similarly, the opinion of a legal consultant in a government office commits the office. Obviously, any person appealing that opinion still has the option of asking for the intervention of the attorney general. Therefore, it can be said that regarding determining validity, all the expertise given by the attorney general is located along the axis at the lower tip of which we find the opinions of the low rank legal level, and at its upper tip that of the attorney general, all of which oblige the government as long as no other opinion was given by a court or a consultant at some higher level. The judicial institution is built in a way that grants the attorney general’s institution complete independence and self-sufficiency, ensuring special status and power to all his judicial decisions, and sometimes even moral ones, when this strength projects on the subordinated ranks in various offices. The existing parallelogram of forces connects the status of legal counseling system expertise and the authority to present it in judicatory instances headed by the Supreme Court. The structural connection between the State Attorney’s Office and the attorney general, to which it is subject, forms a united system whose strength comes from the combination of the two functions. The strength of the legal expertise of the consultant and his subject system stems not only from his professional status and importance in the judicial community, but probably mainly from the fact that non-execution of the expertise by the executive branch might lead to one of two possible outcomes: prosecution for violation of norms or abstaining from protecting a statutory action or its representation at judicial instances, including the High Court of Justice.

The action policy of the attorney general has undergone multiple changes since the establishment of this institution with the founding of the State of Israel. Initially the attorney general was perceived as sort of its lawyer, supposed to protect the State’s decisions in court. In security issues, however, his level of supervision over the security organizations was very limited. This probably stemmed from the security reality perceived as existential danger to the young state. Later on, the independence of the attorney general was developed and anchored, and the decisions of the executive branch are influenced by its legal opinion.[109] It also can be assumed that if in its early stages court rulings were shaped by the natural tension between government standpoints represented by the attorney general and court rulings, in the new model of the relations between the attorney general and the government, this tension is much more relaxed. The standpoints of government and other authorities, including the ISA, which fail to match the criticism threshold of the legal advisor, are not brought to the court in the first place.[110] This different dynamic was of course significant in the development of judicial decisions. If "natural" development of judicial rulings usually occurs "spirally", through the feedback between the arguments of the parties and court decisions from one case to another, today, these "market forces" are no longer operating freely, because the positions of one party – the government – are shaped in the first place along the guidelines drawn by the court in previous decisions. The sweep toward pre-restrained directions diverts the pendulum of the court decisions in a way that might have a long-term impact on the general trend. To this dynamic we also should add the fact that in our time legal considerations are often linked to components of policy, values, etc.

Legal counseling in a governmental office is therefore located amidst the legal function to which it is subject professionally (the attorney general) and the needs of the office and its management, whom it is supposed to serve. Its action and consideration space is not as wide as that of the attorney general or that of a private lawyer representing the standpoint of a civil litigant. Although he is perceived as wielder of professional authority in the core areas of the vocation the governmental office specializes in, in all matters concerning the basic legal or value questions his professional independence is limited and he must coordinate with the legal functions in the Ministry of Justice.

The obscurity of the legal consultant's role in light of the judicial arena characteristics

Nowadays, the world of justice is in transition from the era of status and contract that dominated it in the previous centuries and reflected the formalist approach, to an era of values that characterize our times.[111] The reality according to which "the whole land is justice",[112] when the individual and his rights are in the middle of the picture, together with a legal regime that balances the status of written law with the relations of government and parliament differently from the conservative approach – reality characterized as “the decline of formalism and the rise of values” – all these frequently generate situations of uncertainty concerning the exact legal situation. Legal advising by some governmental, statutory body, presuming to depict the legal situation correctly, might make it difficult to assess a result depending on multiple variables. This lack of clarity and uncertainty might often induce certain confusion regarding the exact role of the legal consultant in the organization, especially in the eyes of those who do not deal with it on regular basis. Legal counseling in an organization like the ISA is subject professionally to the attorney general and in fact to obliging norms, as perceived and interpreted by the central counseling system of the state. Even the expert opinion of the attorney general is not immune from judicial criticism in his discretion as the head of criminal prosecution and as consultant to the government and its branches in matters concerning the lawfulness of their actions.[113] The professional authority of legal advisor in the ISA is mainly within the organization, but he should be aware of the limits of this authority when they are disagreed with – explicitly or not – by the organization and those entrusted in the governmental system of justice, i.e., the attorney general and his subordinates.

The list below mentions some of the factors contributing to the aforementioned ambiguity concerning the role of the legal advisor in general and the security organization in particular.[114]

1. "Consultant" vs. "Responsibility Bearer": Traditionally, they are called consultants,[115] even if it is obvious that consultation is essentially just one part of the legal advisor’s tasks. Literal understanding of the legal counseling provision generates an expectation that the legal advisor will provide an expert opinion ("advice") and transfer the decision of whether to accept this to the authority holders; today it is clear that a legal advisor dealing only with counseling, i.e., providing advice or producing expert opinions, is not fulfilling his main task and designation. Any legal advisor deserving that name and status should be involved in organizational operation and constant dialogue with the field-factors in the office. His expertise is part of this dialogue. However, we still often encounter claims directed against a legal advisor – that he does not provide sufficient legal expertise, that he seemingly goes beyond the boundaries of his authority on one hand, and that by adopting the stance of expert he evades sharing the responsibilities in the office on the other.

2. The tension between existing, desired, and appropriate justice: Existing justice never catches up with the desired one. One of the reasons is technical: the world of justice is conservative by nature and usually lags to a certain degree behind developments, especially in our era of rapid technology advances. The second reason stems from the gap between what can be anchored in the Law or legal formulation of the practice, and what seems to be desired by each observer, according to his subjective understanding of reality. Between these two poles, or above them, is the matter of values – not everything existing and not everything wanted is indeed appropriate in the changing circumstances. Determination of the appropriate legal status is a moral perception of the state of things, depending on the point of view of the observer and his own values. Interpretation of factual or judicial condition, whether by court or some other interpreter, should take into account the basic values of the society they are tested in, as well as the external and internal circumstances of the given case. This is a dynamic process that alters according to the period, circumstances, values, and the social environment.

3. The gap between the allowed and possible: Beside the gap between the existing, desired, and normatively appropriate, there are a gap and tension between that which is seemingly allowed and seemingly possible according to the existing legal situation and that which can be "produced" from it. A legally authorized person is not allowed to exercise the full extent of his power according to the literal definition of the law without setting reservations and limitations to utilize the power vested in him. He is subject to a system of reasonability, probability, proportionality, and purposeful interpretation rules.

4. Post factum wisdom: Part of the work of legal advising refers to analysis of past events. "Judicial" observation of what was done in the past with insights of retrospective wisdom is often perceived as over-righteousness and unfairness toward the objects of the events and might harm the level of trust in the system.

5. Legal counseling, decision-making, policy setting, and what is between: Sometimes the three areas are intermingled. Not once, in the absence of clear policy, is there a prominent tendency to require legal tools as an anchor in decision making. Such cases require elucidation of the differences between the legal frame and the content that can be filled with the wisdom of the policy makers or implementers’ decision.

6. Conservativeness in a progressive technological era: It has already been said that the world of justice is conservative by nature and changes relatively slowly in comparison to the pace of changes in the dynamic society of our days. This state of affairs is especially prominent in technological contexts. These changes require adjustment of the legal condition to the techno-scientific reality, adjustment that often requires legislative amendments or dynamic interpretation. Legislative amendments are verbose by nature and take long periods of time, during which the legal situation does not match needs, despite understanding how things ought to be. Dynamic interpretation updating legal understanding in a given time is confined to the boundaries of interpretative reasonability, and in any case cannot always undo or narrow the gaps between the required legal agenda and the existing legal reality. In the absence of full coordination, the arising claims are often directed against those perceiving them as they are.

7. "Everyone understands justice" (or "What you see from here is not what is seen from there"): Another factor that frustrates jurists is that very often legal science looks relatively available and accessible even to those who do not engage in it on a regular professional basis. Reading legislation or court verdicts by a person unfamiliar with the whole picture of the profession and its complexity might lead to mistaken perceptions. When integrated with the familiar gap between custom rhetoric in the jurist discipline and practice, it often enhances "creative" exegetics on the part of a professionally unqualified person but also creates "not to the point" expectations.

8. Professional ethics: A legal advisor in an organization is subject to the rules of professional ethics that do not apply to other members of the same organization. He is not allowed to perform acts in which others, who are not lawyers, are unrestricted. This normative gap might cause misunderstanding and a sense of “lacking partnership” in the course of joint projects. Such things are especially prominent in a mission-oriented organization, whose ethos and organizational culture contain fundamental terms such as "brotherhood of warriors", "partners in fate", and bearing the burden of "shoulder to shoulder" responsibility.

9. The different "hats" of the legal advisor: The legal advisor focuses on several angles of engagement, as detailed below. The occupation axes are not always parallel, and in cases of apparent collision his professionalism and even consistency and integrity might come under question. These issues require scrutiny and clarification in each individual case.

"Multiple hats" doctrine in legal counseling

The legal advisor's role in a dynamic organization such as the ISA obliges him to be aware of a variety of activities and areas of responsibility with which he is in touch. Complete responsibility for each of them is not simple and often might evoke obscurity and fear of internal contradictions. Consequently, these matters require elucidation and clarification. Next we shall mention the main responsibility topics relevant to the work of a legal advisor in a governmental office or body.[116]

1. Setting restrictions of allowed and forbidden: The primary duty of the legal advisor is to set the boundaries of the allowed and forbidden according to the law. In evident cases of law violation or fear of crossing the boundaries of lawfulness, he is required to inform the authority wielders explicitly and immediately of the limitations set by the Law and the degree of risk such authority wielder takes upon himself due to the violation of the Law. The difficulty usually stems from circumstances of legal obscurity. In such a case it is necessary to formulate with utmost clarity and precision the boundaries of the given issue through discerning between its clear and obscure sections. It is also necessary to offer a way to elucidate and clarify the boundaries of obscurity, whether by additional examination or by consulting an authorized superior legal instance in the judicial hierarchy.

2. Estimation of the legal situation: The basic and primary role of any legal advisor is to determine, objectively and in an unbiased fashion, the correct legal situation regarding the specific constellation of facts and circumstances. This task requires clarification of the factual reality, elucidation of the legal basis, examination of possible interpretative alternatives, and submission of a maximally precise and clear legal position to enable the organization's decision makers, who are the "client" in need of the expertise, to rely on it with a maximal level of certainty. Sometimes the expertise, whether written or oral, is accompanied by a probability evaluation and its chances to persist in the given situation. This evaluation is important for the decision maker prior to relying on it, in order to aggregate the risk management factor in the decision-making process.

3. Establishing fitting legal infrastructure for organization operation: The legal advisor in the organization should be versed in its needs and be aware of the gap – if any – between these needs and the legal infrastructures the organization operates upon. Once such a gap is identified, he should indicate it to the organization's management and cooperate in its removal. This goal can be achieved by proposing an interpretation that would be approved by the authorized legal factors or by preparing a legislative proposal to amend the problem requiring solution. As long as nothing was fixed, he should endeavor to prevent the organization and its members from faltering because of it.

4. Helping to formulate a standpoint: A legal consultant is a part of the organization’s management and therefore should be a partner in the decision-making process, and voice his opinion not only in evident legal matters but also on general subjects where he has an opinion, knowledge about, or relevant experience. Although in these contexts he has no evident advantage over the others, and his opinion is not necessarily preferable, it is also not inferior. Being versed in the organization's being and possessing thinking tools acquired from the discipline of justice might turn out to be very useful for the organization’s management in the crystallization of their position.

5. Outlining the way to achieve the goals: Once a decision is made or a standpoint formulated by the organization's management, the advisor should help in its execution. He should offer a legal and appropriate way to achieve the set goals and supervise to ensure that its implementation matches the decision and follows the standards in spirit.

6. Representing the position of the organization: In many cases the legal advisor presents a position formulated by the organization in response to other factors in the organization or outside it. Sometimes this presentation aspires to receive approval and sometimes to promote its implementation. The advisor presents the standpoint honestly, fairly, and completely, to enable those he faces to examine it thoroughly, including its underlying rationale. There may be cases in which, due to the existence of several reasonable legal options, the position the legal advisor was ordered to present to external factors does not fully match his personal standpoint, and sometimes even contradicts the one he presented during the internal debates in the organization. In such a case he should represent the institutional standpoint. However, it is also appropriate to reveal the other opinions raised during the internal discussion, to make the presented factual and legal picture complete and full.

7. Internalization of the public interest components in the considerations: The legal consultant in a state-governmental office bears the burden of influencing the quality of the decisions even in matters that do not belong to the pure legal core but rather lie in its general context. The legal discourse often speaks about considerations of the “public good” or “public interest” as derived from the attorney general's authority to weigh such considerations when he plans to close investigations. Apparently, every office holder in the management of the organization must weigh public considerations of this sort, but it seems that the legal advisor is the one expected to transcend the immediate and purposeful considerations of the organization to achieve a specific goal and to incorporate the general vision into the decision-making process.

Dilemmas in Legal Counseling

A legal consultant in government offices must successfully fulfill the aforementioned responsibility areas and "angles". Life in a dynamic organization like the ISA constantly offers ample possible situations of "cases" and "reactions” and evokes a variety of fundamental questions referring to the essence of the profession and nature of public mission involved in the fulfillment of the job. This occupation frequently offers collisions between public interests and general values such as "Does any standpoint deserve to be defended?"[117] Next, we shall try to touch on some of these questions and in the following[118] section will offer our own standpoint toward then.

1. What is successful legal counseling? How do we measure legal counseling quality? The result of judicial proceedings in the court is usually interpreted as the measure of success or failure. In this immediate context the test-of-result indeed seems to be a good index, but in the general context this test, when applied to particular proceedings, does not necessarily indicate its quality. At times a sweeping practice might inflict future collateral damage whose scope is far greater than its immediate gain. In cases of legal counseling that do not reach frontal collision in court, quality assessment is much more difficult. Questions that often arise in this context refer to the nature of the legal advisor's recommendations: Are recommendations to invest in "preventive treatment" preferable? Is an initiative to promote sharpening of the legal disagreement preferable over an approach of "sit and do nothing”? What is the nature of the reaction required in each case? Another debated question is whether the legal advisor should delve into the smallest details of operational activity and closely accompany it, or if it is more appropriate to suffice with outlining the major principles and avoid delving into the methods of their implementation in every concrete case.[119]

2. Who is the client: A constantly surfacing question in hierarchic organizations is who is the "client" of the legal service. Assuming that an abstract answer that the organization is the client does not provide a real answer, the inevitably asked question is whether the head of the organization – who reflects the exposed side of a secret organization and in this respect is "the organization is me" – is the client. In cases where the head of the organization is the legal referent it is obvious that he should not be identified with the organization due to the fear of conflicting interests. Even in cases where his interests are identical to those of the organization there is a fear that subjection to his opinion might reduce the ability to supervise and control it. There is a general tendency to assume that the real client of every statutory legal counseling system is the state and the people behind it. They are the ones to whom legal counseling loyalty should be directed. However, the implementation of this correct principle is far from being simple in the organization's daily lives.[120]

3. The policy of legal risks: A manager in an organization expects his legal advisor to recommend a safe route for legal action. This probably would also be the preference of the advisor himself, just as that of any other professional in his area of professional responsibility. In practice, however, there are almost no decisions without legal risks. One question in this context is how to "quantify" these risks and conceptualize them in language clear to the decision maker, to enable him to calculate his actions. Another question is how to avoid creating too wide a "security strip" that might protect the expertise of the advisor but would over-limit the possible scope of action of the decision maker.[121]

4. Preventive treatment vs. retroactive treatment: The question of legal counseling is what is the most preferable way to deal with legal problems, whether to face them when they appear or to prepare for them in advance. Seemingly, preventive alignment is better. The difficulty is that often preliminary actions might become a sort of self-fulfilling prophecy; in many cases the expected problems fail to appear at all, and if they do, their solution would be simple in light of being seemingly unexpected. Common phenomena in the world of intelligence are the "self-fulfilling-prophecy" and "self-refuting-prophecy". At times, mere preparation in advance prevents the outcome one prepares for, sometimes it facilitates it, and in both cases it might be perceived as redundant and even harmful.[122]

5. Responsibility vs. authority: What is the responsibility of the legal advisor in a case of failure? According to the common responsibility rules, any person bears the responsibility for his achievements and omissions. A cautious legal advisor would wrap his expertise in an envelope of reservations and defenses. Thus he might save his own skin, but he will probably lose the trust of the organization. The issue of his partnership in the organization's actions becomes cardinal.

6. Professional environment: A legal advisor in an organization gets help from a supporting and simultaneously limiting professional environment. The professional environment outside the organization, academia for instance, can help but cannot serve as a real support in the case of malfunction or failure, because it lacks any formal status. The institutional environment, such as attorneys and the Ministry of Justice, is indeed supporting and assisting, but also committing and limiting the organization's freedom of action.

7. Internal position vs. external position: We have already mentioned the constraint that often forces the legal advisor to represent or defend an organizational position he disagrees, or does not fully agree, with. In simple words, in cases where this position is illegitimate, he is prevented from dealing with it and in any case would not accept the mission of its propagation or "marketing". However, when the issue is a position that is unquestionably legal and within the bounds of reasonability, there is nothing preventing him from defending it the best he can. His fairness duty would oblige him also to present even the "less convenient" arguments to the system he represents – to make the presented picture full and complete.

The legal advisor's conduct in security organizations

What distinguishes a legal advisor in a security organization from his colleague in a civilian government office? The difference stems mainly from the nature of the activities of the two bodies. ISA's mission is, as mentioned, "the protection of state security and the order and institution of the democratic regime against the threats of terrorism, subversion, subversive activity, espionage and disclosure of state secrets."[123] Beyond his responsibility for the appropriateness of procedures customary in any governmental office, such as taking care of property, labor relations, and discipline, his main attention is supposed to focus on strict preservation of lawful and value appropriateness of all the actions enabling the organization to meet its goals. The materialization of ISA's responsibility obliges employing a series of means relying on varied legislation concerning violation of civil and human rights, human dignity, invasion of privacy, and imposing restrictions on liberties and freedom of action.[124] Dealing with the field of justice in these contexts might induce those involved to develop a mistaken expectation of expertise from a "judgmental" perspective. The legal advisor is not a judge – he is an integral part of the organizational texture and his main functioning ambience is within the organization. Creation of the image of an external judge can be useful in some specific matters, but might harm the creation of mutual trust relations required in the long run. A professional and fair legal advisor would attempt working within the organization in an atmosphere of reciprocal trust with his organizational "clients", to "speak at their eye level" and not from a position of arrogance. He should be aware of the spectrum of professional angles he should maneuver between, bridge them, and explain them to those who do not comprehend the problems involved. In order to prevent the mission-orientation of the organization from being diverted in an unwanted direction, he must be loyal to the needs of the organization, but at the same time see reality from the broad perspective. The legal advisor should see himself as a full partner in making decisions and the nature of those decisions, and bear the responsibility for both their successes and failures. These are the main points he should follow:

Precise and clear definition of legal opinion in a concrete case: The expert opinion of a legal advisor in an organization like the ISA can be heard in several contexts; its status is derived from: general standpoint, demarcating expertise, and obliging expertise.

General standpoint: In this context, the legal advisor, as partner in the discussions, expresses his opinion on an issue that is not an evident legal topic. He contributes his life experience and analytical ability of the presented reality to the discussion and the relevant participating parties. The status of his standpoint in a discussion of this sort stems only from its quality and wisdom, and not from being expressed by a jurist who holds an official role as legal advisor. Its weight is that of any reasoned position of any other participant. His opinion or standpoint of this sort does not oblige the person that conducts the meeting.

Demarcating expertise: In this context, the legal advisor is required to outline the legal reasonability area of a particular topic by offering varied opinions. These outlined areas do oblige the authority wielder, but the recommendation of the consultant concerning its exact location on the scale of possibilities within this space is strictly a recommendation. It should be taken into account, but there is no obligation to follow it. The decision maker must obviously give the legal advisor's expertise concerning the recommended decision extra weight, because the experience and understanding of the advisor in the given matter grant him certain superiority in the correct "geometric" location of the particular case with regard to the legal reasonability boundaries. Once it was weighed and taken into account, there is nothing that prevents deviation from the concrete recommendation of the consultant, as long as the decision is still found within the boundaries he outlined as legal and the option was well-weighed and understood.

Binding expertise: This context refers to the legal advisor's decision about legal right and wrong. In this case his expert opinion obliges the authorized people, who are not allowed to deviate from it.[125]

In cases where the authority wielder is not comfortable with the obliging opinion of the consultant, he is not allowed to ignore it and must follow it or abort the action, but he can indeed ask for discussion at a higher level of the professional authority hierarchy in the organization. According to the rules set in the attorney general’s instructions, the issue can be brought before the attorney general, who is, as mentioned, the authorized ruling instance of the executive branch – as long as the court did not rule otherwise in some other case.

Professionalism and availability: A legal advisory unit and each of its components should serve as the professional knowledge center in the organization. Apparently, the matter seems simple, but actual mastery of the material is not enough. In a dynamic organization like the ISA, availability is a constant commodity, as well as the ability to translate the knowledge into a practical answer to a concrete question. These requirements necessitate a comprehensive vision of the legal arena, accompanied by flexibility of thought and practical creativity.

Arbitration and mediation between various organizational circles: Very often the legal advisor serves as an arbitrator and mediator between the inner intra-organizational circle and the external one.[126] In order to be proficient in this role he must win the trust of both circles. In certain respects he should be an "agent" of both circles. This task is often not easy in light of the differences in organizational interests and the gaps between different standpoints. The ability to persuade the members of one circle of the "relative correctness" of the other, requires deep understanding of the discussion's roots and unceasing dialogue with all the factors involved, through informing each of the parties about the standpoint of the others.

Trust on the part of the organization management and its head: Simultaneous with winning the trust of all the pertaining parties, an essential component is acquiring absolute trust in the legal advisor and his team on the part of the organization's head and his management. Although the main source of the legal advisor's power comes from his representation of the Law's position, it is clear that in the absence of basic trust the advisor would find it difficult to function in the organization in the long term. Lack of trust might entail exclusion of the consultant from dealing with core matters and reduce his influence on the quality of the decisions received in the organization and their lawfulness.

Clarity: A legal advisor must be clear and lucid in his opinion. Any vagueness – which often offers some advantage in local solution of a conflict ("constructive vagueness") – would surface somewhere upstream and require consideration at the price of losing future trust. Clarity requires sharp and concise phrasing ability and the skill to make amendments and changes through the internalization process in order to minimize the damages of vagueness.

Determination with sensitivity and participation: The non-crossable red lines must be marked clearly, even if at the given moment they are unpopular inside the organization. By their nature, organizations committed to the success of the mission, especially one perceived as vital and life-saving, allow themselves to skip formal barriers and even values in the "heat of the battle". Accordingly, a general normative determination that does not depend on changing circumstances is required. However, the marking of those normative lines without discussion, cooperation, and elucidation might cause damage and paralyze the organization. This requires a degree of sensitivity and alertness to the different trends and a way to elucidate them. An ongoing educational activity inside the organization is required to internalize the game rules for all those engaged in the operative endeavor. At times, in extreme circumstances, the legal consultant must undertake steps "to save the organizations from itself". This was the act expected, for example, from the legal counseling system at the time when the “Line 300” events took place. The ability to identify things beforehand and act correctly requires sharp analytical ability and resistance as a minority inside the organization.

Ruler and compass: The legal advisor is entrusted with the job – which is not his exclusively, but demands a strong degree of accountability from him – of serving as a salient marker in subjects of values and their internalization in the organization. Here, as said above, we have a considerable educational component, which might evoke the question of his authority to be in charge of it in the organization. The answer to this question should be provided by his professionalism and skill in the utilization of his work tools, such as proportionality, reasonability, egalitarianism, and transparency, combined with the moral validity of his status in the organization.

Gatekeepers join arms – how to prevent the next trauma

Security and intelligence organizations might fail in their mission for various reasons. The familiar mistakes are usually those on the professional plane, for example in erroneous evaluation of information and derivation of mistaken and misleading conclusions. However, professional failure usually has an organizational background and is often identified only post factum and during investigation of malfunction or omission. The quality of an organization is determined by the nature of its culture and values. GSS's failures of the 1980s can be characterized, inter alia, by absence of a solid normative ruler against which the organization should have behaved. This, however, does not diminish the human or moral quality of its people at the time, but the quality, professionalism, and even moral standard of its members are not sufficient for an organization whose hypersensitive missions and their complexity involve nerve-ends that are constantly brought into contact. The Service lacked organizational standards when it required them the most, and their absence was ruinous. This want stemmed, among other reasons, from its closeness and lack of sufficient transparency towards the external environment, which prevented it from calibrating and achieving the normative balance required for safe navigation along a problematic route. This situation caused organization members to think that the cause, justified by itself, indeed justifies the means, and in order to protect the state and its citizens it was allowed to deviate from the law regarding giving false testimonies in court. From here the road was short to justifying coordination and falsifying evidence submitted to statutory investigation committees.[127] The fact of being closed to all external eyes and limited to internal audit contributed to the formation and taking root of defective norms, leading to the process of sliding down the slippery slope, which, one must assume, took place slowly but continuously, causing it to not be seen as irregular at some specific point of time.[128] In this context the gatekeepers' roles are vital and major. They must be involved and acquainted with the organizational being and know all its corners and details of its actions. They must have unrestricted access to all the information, activities, and missions of the organization and contribute their professional skills to ensure that things incompatible with the obliging norms of democratic society are not taking place. They should be central partners and leaders of workers and managers’ education in the correct culture of the organization. They bear the responsibility for minimizing all gaps opened between the declarative facet and practical commitment to the way things are done. They must, without degrading the responsibility of all other managerial instances, serve as a communication channel and mediating mechanism between the organization and its external systems. In certain respects they are supposed to be both the organization's representatives and the proxies of the outside world inside it. This duality is not simple in a system characterized by high personal commitment of its members in light of the magnitude of the missions and their importance to the security of the State and its residents.

It would not come as a surprise to assume that by their nature – and not necessarily security and intelligence organizations, as far as we can attribute human qualities to them – organizations do not "like" "biting" criticism or constricting legal counsel.[129] This is a sort of "natural state" that should serve as the basic assumption when one comes to deal with the discussed spheres of activity and used as the exit point. According to quite precise generalization, it can be said that any organization management, in any organization, and especially one whose mission includes saving lives, prefers legal counseling that would help it achieve the organization’s missions and goals rather than counseling that will impose too narrow boundaries on its means to fulfill those goals and missions. It prefers criticism that allows a temporary state of peace for the organization to enable it to engage in the "main" objective and to direct its energies to the core missions according to which it is measured as a success or failure. However, despite the natural condition described, we understand today that even pinpointed and temporary concessions of proper norms might grant short-term local advantage, but would collect a high organizational price in the long term.

The question is how, if at all, it is possible to maximize the effectiveness of the two gatekeepers reviewed and analyzed in this paper in order to improve the professional and normative functioning of the organization. Seemingly, each of these office holders is supposed to act within his sector of responsibility and thus serve the organization to the best of his ability and powers. The linkage between them can be "structurally functional" in the sense that the legal consultant would grant the auditor his support and the auditor would investigate the functioning of the consultant. However, it seems that such a linkage, by itself, would not grant these two vital bodies the "power multiplier" they can produce from orderly cooperation in achieving their mutual goals.

The recipe for an optimal guarantee to prevent defective phenomena in the organization, in the existing state of justice, involves combination and cooperation between these two gatekeepers, where each of them maintains its uniqueness but contributes to the other part with his own relative advantage. Each must bring into this combination the advantages provided to him by the law and his profession. The auditor should mainly utilize his right to access all the information in the organization. Beyond ongoing subject-specific investigations, he should engage in ongoing monitoring of all its activities, emphasizing the sensitive malfunction-prone ones noted above. In an era of computerized databases and computerized communication, there should be no special obstacles or difficulties to seeing everything that passes through the organization's network and everything found in its databases. Any subject that evokes a question mark should be discussed and clarified. Nevertheless, the legal consultant must also contribute his involvement in all the processes in order to make an impact, not only in provision of expertise or legal representation, but also, and mainly, with the extra value he brings into the general normative aspect. This extra value is acquired by his right of being regularly placed between the professional-designated world of the organization and the world of justice, values, and practices of the outside world.

The auditor and legal advisor must work in cooperation – and not necessarily under some fixed agreement – so that the audit and control network of each respective office holder, aligned inside the organization, sometimes overlapping and sometimes separately, would merge and mutually contribute to one another. This information sharing, together with the professional ability to evaluate the state of affairs and recommend ways to treat it might, as mentioned, serve as a "power multiplier" in a system of guarantees installed to prevent normative failure in the organization.

Summary

In this paper we have attempted to depict the designation and perception of the roles of two vital office holders in a security-intelligence organization – internal auditor and legal advisor, who we see as "gatekeepers". We have focused on the analysis of the situation in the ISA, whose web of laws, regulations, and rules is quite developed and relatively open in comparison to other organizations, as a result of its unique history in recent decades.

The basic assumption of this paper was that operation of an intelligence organization, and especially that of a "thwarting organization", is permeated with particular complexity that might lead to a collision between the contradicting values at the base of the democratic texture. This clash, if not taken care of skillfully according to the rules of the game of western democracy, might entail disastrous results for the organization, severely damage the trust it has from the public, and harm the state it serves. The right way of handling the system of these structured contradictions is by constructing appropriate organizational mechanisms and ongoing reference to the problems arising from current operation.

We have examined the legal infrastructure within which these two gatekeepers operate and the main professional and functional dilemmas they are facing.

Following the description and elucidation, we have proposed a model of cooperation that can serve as a power multiplier for the quality functioning of these two institutions, for the promotion of their joint objectives.

Nevertheless, organizations and their leaders should not remain aloof and assume that their gatekeepers can always prevent a malfunction or crisis before it happens. The guarantee for adequate operation of organizations like the ISA is first and foremost the moral strength of their members. This strength is anchored in organizational culture with all its implications. This strength must be preserved and maintained. The culture must be constantly and diligently developed and worked upon.

Notes:

[1] L.L.B., L.L.M., lawyer, Research Associate, National Defense College of Israel (INDC), IDF. The author served as head of the legal division of the ISA (1999–2006) and as an instructor at INDC (2006–2008). Acknowledgements to Prof. Suzi Navot, Lawyer Motti Bass, and Colonel (reserve) Moshe Keinan, for their readiness to read drafts of the paper at its various stages and make useful remarks. The paper is based on overt information, is written under the sole responsibility of the author, reflects his own personal understanding, and does not reflect any institutional or official position.

[2] In speaking about "boundaries of lawfulness" we are using the term in its broad and dynamic sense, which often includes the "ethical space" and morals tangential to the boundaries of the formal law. Sometimes this boundary shifts between legal "verge" and the moral-ethical-public "threshold" – depending on the times and views, and according to the condition of the society at the given time. For an attempt to define ethics see Assa Kasher, Military Ethics, Broadcast University Library, Ministry of Defense, 1996, p. 9.

[3] The classical world of justice is built mainly on post factum analysis of situations. In all matters concerning preventive actions prior to the completion of the offence, the idealistic infrastructure at the foundation of the legal tools is more complex and usually relies to a greater degree on retroactive defenses or exemptions and less on authority granted in advance. In the substantive law essential discussion, legal thwarting and prevention tools are classified, usually within the field of administrative powers possessed by the executive branch. Subsequently, these are precisely the preventive actions that are more sensitive in our social texture (being based on future assessments and not on clear findings from the past), and find themselves under the authority of the executive branch, even if that branch is exposed to legal criticism or even subject to approval by some juridical instance. For example, the administrative detention authority granted to the minister of defense requires approval by a district court president. See the Law of Emergency Authorities (detentions) – 1979, Sefer Ha-Chukkim (Book of Laws), 1979, p. 76.

[4] We could add the comptroller to this list – the person in charge of the financial matters of the organization and subject in all areas of finance to the accountant general in the Ministry of Finance – but we shall not deal with him in this paper due to his technical-professional and organizational uniqueness.

[5] The State Comptroller’s Report from August 2004 contains a wider list of external and internal "gatekeepers" in public service: "In the state service ‘gatekeepers’ – in-office and out-office executive and control bodies were set, whose role is to ensure preservation of the law instructions and among others, coping with possible pressures on the part of the political ranks. These executive and control bodies in the office are: the GM, senior administrative and human resources vice-GM … in the area of administration, legal advisor in the area of law and accountant in the area of budget. The ex-office control bodies are: State Service Commissionership … Attorney general of the Government and the Accountant General in the Ministry of Finance." It is interesting to note that the internal auditor is absent in this report, although in the footnotes it is mentioned that he too belongs to the gatekeepers. See Auditor’s Report on Political Nominations and Inappropriate Appointments in the Ministry of the Quality of the Environment, August 2004, p. 10.

[6] A nightclub gatekeeper, for example, is in charge of entrance into the club and not what takes place inside it- am I wrong?.

[7] Since 1963. See Menahem Hoffnung, Israel-State Security Needs versus the Rule of the Law, 1948–1991, Nevo Publishing, 2001, pp. 269-270. In the course of the years, well-argued ideas were raised to subject the service to a minister who is not a prime minister, but this never materialized, and it seems that the current state of affairs will remain unchanged in the future.

[8] Israel Security Agency Law 2002, sec. 7(a) , Sefer Ha-Chukkim (Book of Laws) 1823 (21.2.2002) , p. 179.

[9] Officially, its existence was ratified on 18 February1949, although its existence was probably concealed from the public until 1957. See the ISA website: http://www.shabak.gov.il

[10] See note 8 above.

[11] The thinking and staff work within the Service to process its needs for legislation had already begun in 1989. Work with the participation of the Ministry of Justice and additional external bodies began in 1995. The Law was accepted by the Knesset 13 years after the work on it had begun.

[12] Section 29 of the Basic Law: The Government, as formulated then, today section 32.

[13] Secret Monitoring Law – 1979, Sefer Ha-Chukkim (Book of Laws). 938 (12 July 1979), p. 118.

[14] See the authorization based on a permit granted by the PM in Chapter B' of the Law, sec. 4–5.

[15] Protection of Privacy Law – 1981, Seffer Huchukim 1011 (11 March 1981), p. 128. Here, the Service's status comes within the frames of the defenses and exempts in sec. 19 of the Law.

[16] Meaning a series of events that began chronologically with the affair of the bus of line 300, which was hijacked by terrorists and killing the two of them that remained alive after the takeover by GSS people. Other events pertaining to the affair included the intentional misleading of the examination committees appointed to check the event, the issuance of false testimonies in the court, the officer Izat Nafsou affair, and the discussion on lawfulness of the interrogations over the years; more details about the subject can be learned from the books by Yehiel Gutman, Shaking in the GSS: Attorney General against the Government, from the Tuviansky Affair to the Line 300 Affair (Tel-Aviv: Yediot Aharonot Books, Idanim Publishing, 1995); and Ilan Rakhum, The GSS Affair (Jerusalem: Karmel, 1990).

[17] For example: As a result of the ongoing cooperation between the Service and IDF forces, Israel Police, Civil Administration, Prison Authority, etc., personal acquaintances were forged between various officers in these bodies, which in turn decreased the wall of isolation that “protected” the Service from the public eye. During the period following the First Lebanon War, beginning in the mid-1980s, the mandate of Service actions was extended to include thwarting terrorism from southern Lebanon.

[18] Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity, Report , Part One, Jerusalem, October 1987. The formal English name of the General Security Service was changed recently to the Israel Security Agency (ISA).

[19] On the Izat Nafsou affair in brief, see http://wikipedia.org/wiki/, and in detail – Ilan Rachum, note 16, pp. 35–41.

[20] Major General (reserve) Meir Zorea and State Attorney Yona Blattman’s Committees.

[21] See the Landau Committee report, pp. 77–80.

[22] Ibid., pp. 32–33.

[23] Ibid., p. 87.

[24] The Bill and Explanatory Note for Israel Security Agency law were published in a Law Bill (Hatza'ot Chok) No. 2869 of 23 February 1998, p.243, 245.

[25] Speaking about commitment stemming from the duty of "respect" for various authorities, the meaning is not some abstract statement, but one of most practical implication: although the duty of report – in the formal language of the applicable law – is often limited and formal, the mere fact of meeting with and appearing before Knesset committees or the government requires reference to questions deviating from the formal report as defined by the Law. The same applies to the interactions with courts, press, state comptroller, the ombudsman, etc.

[26] Sec. 3(a), at the first part.

[27] Sec. 5(b).

[28] Sec. 6(a). On the function of Knesset control in general as a controlling and supervising legislative body, with emphasis on the work of the committees in the context of auditing of the security and defense systems, see Aviezer Yaari, The Civil Supervision of the Army in Israel, Yaffe Center for Strategic Research, Tel-Aviv University, memorandum 72, October 2004, pp. 13–30; Major General (reserve) Yaari was, among others, in charge of the security system audit in the State Comptroller’s Office in 1987–2000.

[29] Sec. 12 (a)+(b) of the Law.

[30] Sec. 10 (a).

[31] Sec. 10 (b).

[32] Sec. 10 (d).

[33] Sec. 11 (b)+(c).

[34] Sec. 11 (d).

[35] Sec. 15. (b).

[36] Ostensibly, the Appellate Committee’s decision is final, but it seems that its ruling can be appealed at the High Court of Justice.

[37] Sec. 4 (d) + 4 (e) of the Secret Monitoring Law.

[38] In most cases these discussions take place within the frames of the narrower sub-committee whose meetings are confidential, whose members are heads of the Foreign Affairs, Defense, and State Auditing Committees.

[39] Thus, for example, within the frames of the Supreme Court ruling on the issue of interrogations – HCJ 5100/94 – Public Committee Against Tortures and Others vs. Israel Government and Others – it was ruled in sec. 38 of the verdict that the Government's Legal Advisor "… can instruct himself concerning the circumstances in which the interrogators who were claimed to act in a single case as being driven by a sense of dire necessity would not be prosecuted". Soon after the verdict, in October 1999, the attorney general indeed published a Framework Consideration Document. See Praklit, vol. 44, pp. 419–422; and on the matter of targeted killing, the ruling said that according to international law a retrospective examination of the thwarting actions in which people were hurt should be conducted by an independent designated committee. See HCJ 769/02 Public Committee Against Tortures and Others vs. Israel Government and Others, sec. 40 and 59 of the verdict.

[40] See State Service (Discipline) Decree (General Security Service and the Mosad for Intelligence and Special Operations) – 1979, issued by virtue of sec. 75A' of the State Service (Discipline) Law – 1963. According to the order, the heads of ISA and the Mosad, with the permission of the State Service commissioner and the attorney general, in relevant cases, might determine that on grounds of discipline it is justified to apply the order. Its application in a concrete case introduces changes in the Law of General Discipline as applied to all state workers. This unique authority was set acknowledging the unique nature, in matters of regime and discipline, of the organizations in question.

[41] For responsibility types borne by office holders in state and military ranks and the standards to determine them, see the Partial Report of the Committee for Examination of the Lebanon 2006 Campaign Events (Vinograd Committee) – 4/2007, pp. 129–143. For the matter of tests and concepts to determine the responsibility of the head of ISA for the conduct of the organization, including operational malfunctions and existing responsibility components (the duty of conceptual prudence, concrete prudence duty, personal-direct and indirect and general responsibility), see the Report of the Investigation Committee of the Assassination of Prime Minister Yitzhak Rabin (Shamgar Committee) – 1996, pp. 134–147. Also see the division proposed by Assa Kasher into four types of responsibility in the military context (causative, ordered, regulative, and military command related), Assa Kasher, Note 2 above, pp. 112–117.

[42] It is customary to view the ultimate responsibility as involved in the authority of command, leadership, and management, which contain in turn the duty of supervision, overseeing, and control.

[43] On the matter of the connection between the inner discussion circle of the organization's staff and the senior political rank, see, in the context of IDF General Staff functioning during the Second Lebanon War, the exchanges of opinion between Dr. Gabriel Siboni and Dr. Yehuda Ben-Meir, The Commanding Authority and Responsibility in the IDF, Strategic Update, Institute for National Security Studies, vol. 2, August 2007 (Dr. Siboni's article) and vol. 3, November 2007 (Dr. Yehuda Ben-Meir’s response and the response to the response of Dr. Siboni). The argument revolved on the duty or right of a general staff officer to present a contradicting standpoint to the senior political rank.

[44] For instance, in the area of agents’ operations, covert and overt searches, secret monitoring , security of important persons and facilities, and security clearance.

[45] For decades the issue of intelligence assessment quality provided a living for many commission of inquiry investigation committees and even voluminous academic writing. For recent publications see the article by Colonel (reserve) Dr. Shmuel Even, Committees for Checking of the Intelligence Community in Israel – Why Their Recommendations Repeat Themselves and are not Implemented. Iyunim Be-Modi'in, Institute for National Security Studies , vol. 1 (10/2007), p. 25.

[46] See the section entitled The Fabric of the Service Pertaining Laws: Transparency, Audit, and Control Mechanisms (above).

[47] On the matter of relations between discipline and professionalism, see Assa Kasher, note 2 above, pp. 90–91. To view the Service's document of values (i.e., ethical code), see the SHABAK website http://www.shabak.gov.il/english/Pages/default.aspx (allegiance to the state, restraint of power, discretion, circumspection, integrity).

[48] See Dr. Asher Friedberg, “The Influence of Audit on the Government and Public Administration,” from a speech given at the commemoration day for Dr. Moshe Shani (17 June 93), Political Science Faculty, University of Haifa, 1993, p. 43.

[49] Internal Auditing Law – 1992 ,Seffer H'achukim 1395 (9 April 1992), p. 198.

[50] The meaning here refers mainly to the instructions of the State Service Regulations ('TAKSHIR'), Government decisions, and instructions of the Government Companies Authority regarding government companies etc. Concerning municipalities, the duty existed even before by the virtue of the law.

[51] Sec. 2 (a).

[52] Sec. 2(b)

[53] Sec. 12.

[54] Sec. 3.

[55] Sec. 4.

[56] Sec. 5.

[57] Sec. 6 and 11.

[58] Sec. 6A.

[59] Sec. 7.

[60] Sec. 9.

[61] Sec. 10.

[62] Sec. 15.

[63] Sec. 13 (b) of the ISA Law.

[64] According to the Complex Systems Doctrine, rapidly gaining popularity in the new management era, and assuming that the Service is a complex system, one must assume that the auditor has a duty to deal with all the components of the managerial complex. For specification of the aforementioned complex components, see Efron Razi and Pinchas Yehezkealli, The World is not Linear. Real Life Is Not Linear, Introduction to Complex Systems Theory – New Factors in Management, National Defense College, IDF and National Security Research Center, University of Haifa, 2006, pp. 140–163.

[65] Sec. 4 of the Internal Auditing Law.

[66] Sec. 13 (a); this is in contrast to the somewhat vague instruction in sec. 2 (b) of the Auditing Law, which states that the minister in charge of the government office "… might determine that a person entitled to appoint [an] internal auditor in the same office is entitled to appoint [an] internal auditor for a body or unit in the same office which are not subject to the general manager of the office." Therefore, as a rule, the GM of a governmental office has the authority to appoint an internal auditor in his office.

[67] Sec. 13 (b); such instructions, concerning the service term length and its being the last position held in the Service, do not exist in the Auditing Law.

[68] Sec. 13 (e) (3); this is unlike the arrangement in the Auditing Law.

[69] The PM is entitled to order the auditor to perform additional roles according to rules to be set: Sec. 13 (c) final part; the head of the secret service might order the auditor to fulfill additional missions of internal audit as stated in sec. 7 (b) of the Auditing Law: sec. 13 (e) (1).

[70] Sec. 12 (e) (5); the PM might order the auditor to transfer a report to authorities and office holders other than those listed above.

[71] Sec. 13 (d); the auditor shall not deal with matters under the jurisdiction of the police investigation department in the Ministry of Justice, entrusted with this area since the early 1990s – by virtue of the Police Law (new version) – on the treatment of investigations related to suspicion of criminal offences committed by the service workers, and not with complaints of the interrogated, creating suspicion of discipline violations by the service workers, a sphere that was transferred at the same time to a specially designated office holder in the Ministry of Justice.

[72] Sec. 13 (e) (2) of the ISA Law; in fact, the instruction does not differ substantially from the statement in paragraph 9 of the Auditing Law, but it seems that the legislators wanted to re-emphasize the matters related to the Service and remove all doubts that someone might argue for secrecy, confidentiality, or state security grounds to prevent access or information from the service's comptroller.

[73] For a brief review of state auditing science history, whose roots go back to early humanity, in the modern era and in Israel, see Miriam Ben-Porat, “Basic Law: State Comptroller,” in: Interpretation of Basic Laws, edited by Yitzhak Zamir, Harry and Michael Sucker, Institute of Legislation Research and Comparative Law, Faculty of Law, Hebrew University of Jerusalem, 2005. Also see the discussion of various approaches in AMM 6013/04 – State of Israel – Ministry of Transportation v. Hevrat Ha-Hadashot Be-Am (not published), in paragraphs 15–16.

[74] Aviezer Yaari uses the expression "public eye": see note 28 above, p. 51. Also see the lecture by Major General (reserve) Abraham Adan at the study day noted in note 48 above, p. 50 onwards.

[75] To the rule and its exceptions, See Ben-Porat, note 73 above, pp. 9–11, 173–175.

[76] State Comptroller Law – 1958 (consolidated version) Seffer Hachukim 248, 1958, p. 92 ; Basic Law: State Comptroller, Seffer Hachukim 1237 (24 February 1988), p. 30; see Aviezer Yaari, note 28 above, pp. 55–57.

[77] Miriam Ben-Porat, see Note 73 above, p. 9.

[78] On the distinction between control and audit see Adan, note 74 above, p. 51.

[79] High Court of Justice (HJC) 5682/02 – Anonymous v. the Prime Minister of Israel and Others, PDI 57 (3) 84.

[80] A similar situation is found in the status of the municipal auditor where the court ruled that his role involves duality stemming from the fact that on one hand he is a part of the municipal establishment and on the other he is committed to independence in the performance of the audit work. See HCJ 7805/00 – Ronnie Aloni v. Jerusalem Municipality Auditor, PD 57 (4) 577, pp. 594–595.

[81] England, for example, has a double audit system for its secret service, anchored in the local law of the Secret Service and in the Secret Monitoring Law. Each system has a "supervisor" acting side-by-side with "tribunals" operating "outside" the organization but enjoying full access to its documents and serving as ongoing control bodies over its activity, in addition to dealing with public complaints concerning its actions.

[82] See below, the section entitled The Recommended Internal Audit Model.

[83] See Adan note 74 above.

[84] Sec. 8 of the Auditing Law. The Law mentions only two roles the auditor can fulfill: in charge of public complaints and of workers’ complaints; this is accompanied by the reservation that "fulfilling of [an] additional role would not impede the fulfillment of his major function."

[85] Sec. 12 (d) of the ISA Law.

[86] Pay attention to the distinction between an appointed ombudsman (or commissioner) and a holder of another office bearing a similar name but different in essence – the public relations personnel who merely accept the paperwork, responsible for correspondence with the public regarding complaints. The former is supposed to be a public trustee; the latter a trustee of the organization in whose name he answers the public’s appeals.

[87] See Ben-Porat, note 73 above, pp. 173–175, and Prof. David Libai at the aforementioned study day in note 48 above, p. 20.

[88] It is worth noting that the Association of Internal Auditors in the USA, which is the world's leading body in the development of internal auditing theory, changed the definition of the term "internal auditor" several years ago, and today it also includes a "consulting" function:

Definition of Internal Auditing: “Internal auditing is an independent, objective assurance and consulting activity designed to add value and improve an organization's operations. It helps an organization to accomplish its objectives by bringing a systematic, disciplined approach to evaluate and improve the effectiveness of risk management, control, and governance processes.”

Source: http://www.theiia.org – thanks to attorney Motti Bass for directing our attention to this.

[89] See Ben-Porat, note 73 above, pp. 11–13 and Libai, note 87 above, p. 30.

[90] See The Report of the Public Committee for Examination of the Appointment Ways of the Government Legal Advisor (Attorney General) and Subjects Related to His Service – 1998 (Shamgar Committee). Thirty-six years earlier the Agranat Committee, which was the first to deal with the subject (Report of the Jurists Committee on the Authority of the Government Legal Advisor, 1962), determined that with regard to the other authorities belonging to the executive branch of the state, the opinion of the legal advisor is regarded as "guidelines".

[91] See Miriam Ben-Porat, vice president of the Supreme Court (ret.) and former state comptroller, “When the Attorney General and the Ombudsman Disagree on a Legal Question or on Interpretation of Legislation,” in A. Barak and H. Berenzon (eds.), Berenzon’s Book, vol. 2, Nevo, 2000, p. 391. In her article on the “Basic law: State Comptroller” (note 73 above), published approximately five years afterwards, Ben-Porat opines that the state comptroller, under his "two hats", has independent authority to provide legal interpretation and that he is not subject, like other government offices, to the opinion of the attorney general. Furthermore, in a case of two contradicting opinions submitted to the audited body, one by the state comptroller or the ombudsman, and the other by the attorney general, the audited body must be allowed to prefer that of the comptroller to that of the attorney general. (See the summary of the position after a long and detailed analysis of the law instructions, ibid., pp. 134–138, 358–369.) With all due respect, we doubt that this approach, granting an independent interpretative status and even advantage to the state comptroller, has reference in the Law. In any case, the result is most problematic for the structure of the legal service we have here, because the audited body would have to receive judicial defense and representation in the legal instances through the State Advocacy and the legal consultation system of the government. Regarding this final matter, Justice Ben-Porat is probably aware of the legal problem, and recommends amending the law similarly to that done with the establishment of the Knesset Legal Advisor, ibid, p. 137.

[92] The status of the legal advisor of the Knesset was recognized six years ago in the Law and it was set that he is independent and does not depend on the opinion of the attorney general. See The Knesset Law – 1994, sec. 17.

[93] In her book, in note 73 above, Justice Ben-Porat refers to the special status of the State Comptroller Office legal advisor: on one hand he is located on the "axis" of legal consultation to the government, while on the other, she opines, the comptroller – his superior – is not subject to his opinion. Thus, his status, according to this approach, is that of an auxiliary tool for the comptroller, used to form an independent legal position/opinion (see ibid, p. 133).

[94] Sec. 6 (a) together with sec. 5 (a) of the Auditing Law.

[95] Sec. 5 (a).

[96] Sec. 5 (b)-(e).

[97] Sec. 6 (b) (1).

[98] Sec. 13 (e) (1) of the ISA Law.

[99] Sec. 13 (e) (5)

[100] See the text near note 63 and onwards.

[101] Concerning state auditing see Ben-Porat, note 73 above, pp. 18–19.

[102] We can bring the existing "market" examples of auditing officers whose "geometric" location might be even less clear: university auditors, Jewish Agency auditor, municipal auditors, and perhaps others.

[103] For the matter of the legal status of an internal debriefing within the Service, see sec. 17 of the ISA Law.

[104] Regarding the matter of difficulty (as a problematic situation) in the ability to objectively supervise the work of intelligence organizations and the way to execute ongoing control over their activity to exploit their resources, see a recent article: Colonel (reserve) Dr. Eran Lerman, “Who Would Ask the Questions, a Model of ‘Consulting Committee’ and its Possible Role in the Directing Intelligence Work.” Iyunim Be-Modi'in, Institute for National Security Studies, vol. A, issue 1, October 2007, p. 73. The author implies the use of the American model – President’s Foreign Intelligence Advisory Board (PFIAB).

[105] In the Civil Service Regulations ('Takshir') sec. 40.311 in chapter 40.30, dealing with the status of legal advisors in government offices and auxiliary units, it is determined that "The role of the legal advisor is, among others, to be a gatekeeper for proper and right exercising of authority, according to the law and basic principles of the Israeli legal system, and this to sustain and strengthen the rule of law and functioning based on proper anchors."

[106] Instruction of the attorney general, no. 9.1000; the formulation in the civil Service Regulations is identical; see note 105 above.

[107] See in Shamgar Committee Report, note 90 above, pp. 19–20.

[108] Near the reference to note 22.

[109] See Yitzhak Zamir in: Chaim Cohen, Personal Introduction, Autobiography (2005), in the prologue, pp. 38–63 ("On state security and human rights"). Zamir describes the transformation Chaim Cohen apparently underwent as he moved from his roles in the Ministry of Justice to the seat on the Supreme Court. While in his roles as state attorney and attorney general, Cohen defended the decisions of the senior political rank in security matters in the courts with great zeal and skill; with his appointment as a judge on the Supreme Court he soon won himself a name as a liberal judge and protector of human rights. In his article Zamir offers several hypotheses and explanations for this "transformation" (especially from page 51 onwards) and links it to Cohen's personal ties with the PM, a change of role that induced changes in his standpoints and changes that took place during the next years in the society in general and in the perception of attorney general's role. In my opinion, this can also be reasoned by obvious professional perception – which Cohen seemingly held to at the time – according to which the attorney is entitled to argue for his client's standpoint, i.e., the state, to the best of his professional ability, as long as this standpoint does not violate the law or deviate from reasonable boundaries or the accepted "rules of the game". The attorney is also entitled to raise unusual claims, since it is known that such innovative and creative claims are those that help in the development of legal theory. The job of balancing between contradicting positions is the responsibility of the court, and being located between the extremes of contradicting claims is supposed to create proper judicial practice.

[110] To compare the reality of different periods, see Personal Testimony of Justice Chaim Cohen, note 109 above, p. 208 and onwards in the chapter describing his service as the state attorney (1948–1950): "In those early years I was … theoretically, though not practically, subject to the security authorities … we were defending the various restrictions imposed on them [Arabs in Israel, A.R.] and did it wholeheartedly and routinely…. I had to argue – and having no other choice indeed argued – that all these regulations [defense regulations, A.R.] were valid and standing" (ibid., pp. 211–212).

[111] See Menahem Mautner, Decline of Formalism and the Rise of Values in Israeli Justice, Maa'galey Daat, 1993, p. 10: "The declined worldview is that of legal formalism. It was replaced by a non-formalist worldview that emphasizes the value dimension of Justice and the role Justice fulfills in the state and society."

[112] What was often mistakenly understood as "everything judgeable". These words were ascribed to the President of the Supreme Court Aharon Barak. See Naomi Levitsky, His Honor, Keter, 2001, p. 228. In fact, Barak's approach was expressed in the recognition that "We are indeed living in a normative world. There is not a corner without justice." Aharon Barak, Interpretation in Justice, Vol. 3, Constitutional Interpretation, Nevo, p. 77.

[113] See Dafna Barak-Erez, “The High Court of Justice as Legal Advisor of the Government,” Plilim, Israeli Journal of Criminal Justice, Vol. E (1996), p. 219, and especially page 227 onwards.

[114] It should be said that the relations of lawyer–private client also contain mutual components of ambiguity in the client's comprehension of the lawyer's role as well as in the lawyer's duties toward his client. See Yair Ben-David, Attorney and Client, Mishpat Mafteakh (1991), p. 31.

[115] For one origin of the name "Attorney General", see the report of the Shamgar Committee, above, note 90, p. 57: "The name used today contains [a] significant degree of misleading and degrades the correct description of the essence and scope of the discussed job." On the development of the institution in Israel, following England and the situation during the British Mandate period and afterwards, up to the recommendations of the Agranat Committee in 1962, see Amnon Rubinstein, Constitutional Justice of the State of Israel, Fifth Edition, p. 759 and onwards.)

[116] The Shamgar Committee assigned four such "hats" to the attorney general: general) public) prosecution, legal counseling, representation at judicial instances, and representation of public interest. See ibid., note 90, pp. 15–24. Our number of "hats" for a legal advisor office in a government body, like that of the ISA, is seven.

[117] See Chaim Cohen’s book, note 109 above.

[118] See below next to note 123 and onwards.

[119] The Vinograd Committee recently considered a particular aspect of this issue. The question scrutinized by the committee was, what is the level of a legal advisor's "closeness" that should be provided to fighting troops in combat. Its position was: "At the same time we fear that increased reliance on legal counseling during military actions might cause shifting of the responsibility from the elected and commanders to the advisors and might disrupt the essential nature of the decision and operative activity … we are preferring the position according to which the norms should be assimilated before action and in routine… at action… the decision makers must be allowed… to act according to these norms." See The Committee for Investigation of the 2006 Campaign in Lebanon, the Second Lebanon War, Final Report, 30 January 08, vol. B', ch.14, passages 29–30.

[120] Compare, with the necessary changes, to the recommendations of opinion paper No. 6 of the Israeli Instiute for Democracy, Government's Legal Advisor: Authority and Responsibility, September 1997, with regard to the appointment of the attorney general, when the functions of the attorney and state attorney are separate: "His professional autonomy is essential … but his principal adjustment to the political establishment is reasonable and obvious. There is no reason and justification to coerce the PM or the government to accept legal consultants they do not want." (p. 46). Also see A. Rubinstein and B. Medina, Government Authorities and Citizenship, Legislative Justice of the State of Israel. Shoken, 2005, pp. 998–999.

[121] A possible example of such a situation is in the case of weighing evidence or intelligence material supposed to serve as the basis for prosecution or administration of administrative action. The quantity and quality of the evidence and intelligence material do not always lend themselves to precise weighing and are situation evaluation matter. "Too cautious" a legal advisor and even such an attorney would prevent initiation of the legal process on the grounds of exaggerated caution, and probably would also fail less in those cases that passed their strict standards.

[122] A possible example, which nevertheless might not reflect this, is the development of interrogation procedures that were the subject of the High Court of Justice criticism in case 5100/94 (see note 39 above) and disqualified by it as illegal. One must assume that interrogation routines that were approved for years by distinguished ministerial committees, attorneys general, and the top officials of the Ministry of Justice were meant to determine detailed arrangements that will fit a priori a variety of situations generated by a dynamic action such as interrogation of terrorists, and would maximally prevent leaving the decision in the hands of chance or to the interrogator's discretion. In spite of the good faith intentions above, however, the Supreme Court determined – on the listed legal grounds – that such routines are illegal and should be abandoned.

[123] ISA Law, note 8 above, sec. 7 (a).

[124] Interrogations, wiretapping, surveillance, searches, security checks, security activities, detentions, movement restrictions, employment of agents, etc. The legal "toolbox" in the infinite collection – of intelligence and preventive associations – relies mainly on a series of laws in some of which the ISA "features explicitly" and in some is present indirectly, in the sense that the authority wielders according to these laws rely on their discretion on the expertise of the various security and intelligence bodies, including the Service. Thus for example, in the following laws the ISA has an explicit status: the Law of Secret Monitoring, the Law of Privacy Protection, the Law of Criminal Registry ( =bench blotter / facilitation of rehabilitation ='Takanat Hashavim'), Communication Laws, Computer Law, Criminal Procedures Law, and others. In another legislation, the authorized entities are entitled to conduct actions such as prevention of entering or leaving the State (minister of the interior or its proxies), administrative detention (minister of defense or military commanders in the matching security legislation).

[125] The Vinograd Committee recently dealt with a similar issue. The committee discussed two opposite approaches to the matter of senior political ranks subject to the opinion of the attorney general in matters of international (justice and) law: one approach arguing that this subjection does exist and obliges, versus the standpoint that the opinion of the advisor does not oblige the government and that it is its right, or even duty, to protect critical interests of the state, even if the consultant opines that such action might be interpreted as violating international law. It seems that the committee tended to the latter standpoint, although only "on very rare occasions and in cases of clear vital need … this is an inseparable part of leadership." See note 119 above, sec. 37 in chapter 14 of the report.

[126] Meaning advising, legislation, and representation of the Ministry of Justice (bodies), courts, and other judicial tribunals, government offices, etc.

[127] See note 20 above.

[128] For a lucid and sharp, although somewhat sarcastic, analysis of the GSS affair and the development of its stages, see Pnina Lahav, Barrel Without Rings: The Influence of War Against Terrorism on the Judicial Culture in Israel, Medina, Mimshal and Yahasim Beinleumiim, 33 (1990) pp. 19–50.

[129] See, for example, what was said by Uzi Berlinsky, general inspector in the PM’s office, during a study day on the topic "Public and Internal Audit in Israel", in memory of Prof. Asher Friedberg, which took place at Haifa University (1 December 2005), A. Kfir and R. Sharon (eds.), p. 45.