Knesset Committee Debates Gottlieb’s Immunity Request Amid Outrage Over Exposing Shin Bet Officer

Discussion of Tally Gotliv’s request for immunity from criminal proceedings, Knesset Committee / Knesset Channel

To the recurring bizarre show, the hearing on Tally Gotliv’s request to receive immunity from the Knesset, more and more coalition politicians joined over the long hours. Anyone who was not in Gotliv’s freak show at the Knesset did not exist. Gotliv, as expected, used the moment to smear the attorney general in every possible way, and not only her. Naturally, all those who wanted to score a few points in the primaries, from food thief Nissim Vaturi to liar spreader Moshe Saada, jumped on the hearing. It was yet another display of moral depravity intended to defend, shamelessly, what? The exposure and endangerment of the life of a Shin Bet operative, whose only sin is that he is the partner of one of the leaders of the protest against Netanyahu, Prof. Shikma Bressler. For that, apparently, he deserves a potential death sentence. To understand how low we have sunk, a little history is needed. Until 2005, the default position on immunity was the opposite. In the event that an indictment was filed, it was the attorney general who had to come to the Knesset and ask its members to lift the immunity of the MK against whom he sought to file charges. Since the amendment to the law, the default was reversed, an MK is the one who must ask the Knesset to grant him immunity. The change to the law, made following thorough work by a public committee, was intended, among other things, to make the MK stop for a moment at the shame barrier before rushing to ask his colleagues in the Knesset for immunity. And indeed, until a few years ago, it worked very well. Unlike in previous years, when immunity hearings were automatic, since 2005 until the beginning of last week, despite a considerable number of indictments filed against MKs, only in three cases did MKs ask for immunity. The first was MK Said Nafa, who was accused of contact with a foreign agent. The Knesset, of course, was not impressed by his request and rejected it. The second, believe it or not, was MK Benjamin Netanyahu, the prime minister. When then-attorney general Mandelblit decided to file an indictment against him, he, contrary to his 2019 election promise, "What? What sudden change!", filed a request for immunity, but later decided to withdraw it after realizing it had no chance of surviving in the High Court of Justice, explanation to follow. The third was MK Haim Katz. Katz requested and received immunity from the Knesset. After Mandelblit determined that the immunity was unlawful, Katz and Mandelblit resolved the matter with a lenient plea agreement.

It is tempting to write here that Netanyahu was the one who broke the shame barrier, the one the amendment to the law created, but between us, what shame barrier does Tally Gotliv have? Gotliv is the fourth MK to request immunity from the Knesset since the amendment to the law 21 years ago. In her view, the vile offense she committed is covered by the substantive immunity she has as a member of Knesset. So let us go back to the opening language of the law: "A member of Knesset shall not bear criminal or civil liability, and shall be immune from any legal action, for voting, or for expressing an opinion orally or in writing, or for an act performed, in the Knesset and outside it, if the vote, opinion or act were in the performance of his duty, or for the performance of his duty, as a member of Knesset." The question is whether the acts attributed to Gotliv in the indictment are part of the performance of her duties, or for the performance of her duties as an MK? Over the years, case law developed holding that substantive immunity was not intended to protect an MK from committing crimes he planned in advance, but rather was meant for cases in which he slides from a lawful act into an unlawful one, that is, an MK wants to act toward a certain goal that is important to him as an MK, and then in the course of it slides into an unlawful act. In order not to tie his hands in advance, immunity was intended.

Does the law fit the Gotliv case? Absolutely not. "When does the immunity cause arise?" the attorney general tried to explain amid a chorus of shriekers, "When it is carried out within the natural range of risk of performing the role. If there is a slide from that range into unlawful activity, then the immunity cause will arise." What in the language of the law and in the interpretation given to it over many years fits the Gotliv case? Nothing at all. In January 2024, Gotliv published a screenshot from the dubious website "Edna Carnival," in which it was written, among other things: "Mossad chief Dadi Barnea received a message from the Americans that they intercepted conversations between Shikma Bressler’s husband from the Shin Bet and Yahya Sinwar, 4 days before October 7, 2023." She attached her own text to the screenshot, in which she repeated the publication, and said that her "sources are ironclad." Of course, this text is false, vile, conspiratorial of the lowest kind, but she is not charged with spreading the lie, rather with exposing the identity of a Shin Bet operative. Gotliv’s publication received exposure and amplification of more than 400,000 views. From then until the day the indictment was filed, Gotliv did not remove the publication from her Twitter account. What does this have to do with substantive immunity? What does this have to do with sliding from a lawful act to an unlawful one? In her appearance in the Knesset, Gotliv declared that she had committed a criminal offense knowingly and with advance planning. She did not blink.

There is another immunity option for MKs, the procedural immunity, which is relevant not only to cases in which an MK committed the offense in order to carry out an action related to the performance of his duties. Procedural immunity applies only for the duration of the MK’s term. One of the grounds is bad faith in filing the indictment, discrimination. Gotliv claims that in other cases a similar indictment was not filed. The claim seems weak, because it is hard to imagine a case in which a person commits a serious censorship offense that harms state security, or the security of fighters, and refuses to remove the publication after being asked to do so. Another ground is that the indictment will cause real harm to the work of the Knesset. According to Gotliv, conducting the proceedings will cause real harm to the representation of her voters in the Knesset. There is no need to dwell on a claim from which it emerges that there is no judicial review whatsoever over an immunity proceeding as such. The outcome of the show in the Knesset Committee is, of course, known in advance, and it is clear that the Knesset will grant Gotliv immunity by a coalition majority; however, in light of past rulings, it is highly doubtful that this immunity will withstand High Court of Justice review. In the past, the High Court intervened in the granting of immunity to an MK. That was in the dual-vote affair. The High Court then held that the immunity granted to MK Mikhail Gorlovsky was unlawful. That case was much easier than the one before us. There, it was a matter of a double press on the voting button in the Knesset; here, it is a matter of endangering the life of a Shin Bet operative; coalition MKs who were exposed to the secret Shin Bet opinion, placed for review in the chair of the Knesset Committee, were shocked, but of course they dare not say so publicly.

While Gotliv and her allies spent hours insulting the attorney general, she remained silent, did not utter a word. When she began to speak, she was interrupted every minute, and still she did not respond, remained silent for a second, waited for a break, and continued with the legal review. Faced with all the shouting, threats, curses and humiliation, she did not blink. Rightly, she decided to read from the page, not to improvise for even a second, so that the chorus of shriekers would not distract her. One of the good things we will remember for many years from this bad period is the attorney general’s composure. That composure left her calm and confident in her path on the one hand, and on the other hand drove her detractors out of their minds. Do not dismiss Gotliv’s immunity affair with, "Who cares about this madwoman?" A state whose parliament grants a license to endanger the lives of fighters for the sake of spreading conspiracy theories about treason is not a state you want to live in.