Israel's High Court hears petitions to halt comptroller's Oct. 7 probe, risking future inquiry

This move was made amid warnings that the audit exceeds the comptroller’s authority and risks compromising the work of a future state commission of inquiry.

The petitions were filed by the Military Defense Counsel and the NGO Movement for Quality Government in Israel (MQG). The panel consisted of Justices Daphne Barak-Erez, David Mintz, and Alex Stein.

At the outset of the hearing, Barak-Erez said the dispute concerned only part of the comptroller’s review. She noted that the petitioners argued that Englman is acting beyond his authority, that the audit could disrupt the work of a future commission of inquiry, and that the manner in which it is being conducted harms the procedural rights of those under review.

The position of the Attorney-General’s Office, Barak-Erez added, aligns with the petitioners. Englman, by contrast, maintained that all of his actions are lawful and consistent with prior understandings with government and security officials.

Attorney Avigdor Klagsbald, representing the Military Defense Counsel, argued that the comptroller’s review of what he termed the “core issues” of the October 7 failure suffered from three fundamental flaws. Namely, a lack of authority, the disruption of a future commission of inquiry, and an infringement of the procedural rights of those being examined.

The principal concern, Klagsbald said, was that testimony given to the comptroller would “contaminate” future testimony before a theoretical state commission of inquiry, exposing witnesses to information beyond their personal knowledge, including the versions and accounts of other witnesses, thereby undermining the integrity of later evidence.

Klagsbald added that the process could prejudice officers before the only body empowered to determine personal responsibility.

Bereaved families and critics alike opposed the move, saying it circumvents an independent state commission under existing law.

Stein noted the comptroller’s argument that, in the absence and possible non-establishment of an independent state commission of inquiry, it was necessary for Englman’s office to examine the events.

Klagsbald responded by saying, “Such a claim – that if no one investigates, he will – exists. But need does not replace authority.”

Stein countered that, in a prior High Court ruling on a commission of inquiry, the court had emphasized the importance of establishing a neutral state body to conduct the investigation. By this, he was referencing an October ruling in which the justices said there was no real dispute over the need for an independent state commission to examine the October 7 failures and required the government to explain its continued failure to establish one.

Mintz added that the court had previously been told that every day without an investigation causes harm. Klagsbald replied that more than two years after the events, the delay already exists, and that the appropriate mechanism remains a state commission of inquiry.

The justices also discussed whether multiple bodies could examine the same events simultaneously. Stein pointed to an earlier ruling in which the court said there is no automatic ban on different authorities reviewing the same facts from various angles. Klagsbald countered that later rulings have limited that approach, warning against parallel or closely timed investigations into the same issues.

Barak-Erez sought to clarify whether the petitioners’ focus was on the simultaneity of proceedings, or also on successive inquiries conducted in close proximity. Klagsbald replied that both were problematic.

Attorney Tomer Naor, representing the MQG, said the petition does not dispute the comptroller’s general authority to conduct audits, but argued that such authority is limited. He contended that the current review suffered from serious defects in its factual foundation and that the right of response afforded to senior officials, past and present, has been impaired.

Stein questioned the internal logic of the NGO’s position, noting that recognizing the comptroller’s authority also entails recognizing the tools available to him. Barak-Erez added that requiring the comptroller to operate at every stage under the full procedural framework of a state commission of inquiry could render the audit impossible.

During the hearing, former IDF chief of staff Lt.-Gen. (res.) Herzi Halevi, through his attorney, Eyal Rozovsky, said Englman intends to hold him personally responsible in a draft war report, while refusing to grant him the right to be heard.

Rozovsky said a draft report alleges Halevi failed to implement a directive by former defense minister Yoav Gallant regarding the evacuation of fallen soldiers, and that the State Comptroller’s Office has denied him the right to respond. He also said officials in the comptroller’s office publicly criticized Halevi while he remains under review.

According to the attorney-general, the comptroller lacks the mandate to examine core issues such as intelligence failures, cabinet-level decision-making, and what she described as the “economic warfare against terrorism,” including the policy of arrangements with Hamas. Ergo, Baharav-Miara said, Englman ought to suspend his work involving those areas.

She also said the manner in which the audit is being conducted infringes the right of response of those under review.

Englman, through his attorney, Eliya Zunz, argued that he is acting in accordance with understandings reached with the IDF. These pertained to Englman being granted High Court jurisdiction. He also contended that not all of the issues raised by the petitioners have been presented before the court.

Barak-Erez said there is a clear difference between a case that is thrown out without a decision and one in which the court decides the issue itself.

Stein and Barak-Erez also questioned whether those understandings bind the Military Defense Counsel, which was not a party to them. Stein noted that the earlier ruling did not determine the scope of the comptroller’s authority.

“Once you cross the line from reviewing institutions to reviewing individuals, you cannot complain if they petition separately,” Barak-Erez said, a view echoed by Mintz.

Stein further expressed skepticism regarding the breadth of the comptroller’s claimed authority under the Basic Law: The State Comptroller, remarking that an event as vast as October 7 cannot reasonably be subsumed under a residual clause intended for marginal matters. “That’s not how laws are written,” he said.

The hearing was briefly disrupted when Otzma Yehudit MK Almog Cohen interrupted the proceedings and was ordered to be removed from the courtroom by Barak-Erez after repeated warnings.

This dispute unfolds against a broader political and legal backdrop, as debate continues over how responsibility for the deadliest attack on Jews since the Holocaust will ultimately be determined – and whether survivors and families of victims will feel that justice has been served.