Chapter 11—
Arab Representation in the Jewish State

The Arab Question

Less than a week after Agranat withstood his first crisis as chief justice, he faced his second. A group called the Arab Socialist Party, banned from running in the elections, petitioned the Court for relief. It was a case of first impression. Never before had a party been barred from participating in elections. Israeli Arabs had been enfranchised in 1948 and had voted in all previous elections.^[1] Could they be prevented from voting for the party of their choice? In Yeredor v. Central Elections Commission, Chief Justice Agranat, joined by Justice Sussman, sustained the ban. Justice Haim Cohn filed a powerful dissent.^[2] An appreciation of the dimensions of the crisis from the perspective of Israeli-Palestinian relations requires a short detour. The rest of this section contains a historical profile of Palestinian radicalism in Israel until 1965. The next section discusses Agranat's encounters with Israeli Arabs, particularly his opinion in the 1960 Qardosh case. Both discussions will help anchor the Yeredor case in the legal history of the Arab-Israeli conflict.

The Palestinian Arab population of Israel was devastated by its defeat in the 1948 war, by the concomitant loss of its leadership and its middle class, and by the harsh military regime imposed on it by Israel's government.^[3] During the 1950s only the Communist Party, at that time composed of both Jews and Arabs, actually represented Arab interests and aspirations. In 1958 a handful of young Arab intellectuals began to organize. Theirs was the voice of Palestinian nationalism. They broke ranks with

both the Communists, whom they regarded as insensitive to Arab nationalist aspirations, and with local leaders, whom they dismissed as feudal, corrupt, and meek. They were moved by the engine of pan-Arab nationalism, fueled by the rhetoric of Egypt's charismatic leader, Gamal Abdel Nasser. They considered themselves an integral part of the "sleeping Arab giant" now about to awaken.^[4] They took the Egyptian-Syrian unification of 1958—so threatening to Israelis—as a clear sign that the future was theirs. Their enthusiasm attracted young Israeli Arabs who were growing up in an oppressive, demoralized and demoralizing, segregated Arab Israel. They formed their own movement and called it Al-Ard [The Land].

The disruptive potential of Al-Ard's rhetoric sounded the alarm throughout the Israeli security machine. Between 1958 and 1965 the government led a ruthless campaign against it, culminating in the Yeredor case. In the Supreme Court, Agranat had encountered Al-Ard several times. In April 1960 the group filed an application with Haifa's companies' registrar to form a corporation. Their purpose, they said, was to "engage in printing, publishing, translation, journalism, book importation and other matters related to printing."^[5] By then they were already bruised by their first skirmish with the government. A few months earlier they had been convicted of publishing a newspaper without first obtaining a license.^[6] The registrar denied a permit to incorporate, relying on the attorney general's finding that the group was subversive. Al-Ard petitioned the Court, and Agranat, with Justice Witkon concurring, invalidated the denial, thereby allowing the group to form a corporation to disseminate its views.^[7]

The aftermath proved that the market worked, to an extent. The prosperity of Al-Ard, Inc., confirmed both its potential and its appeal.^[8] The government became even more determined to crush the group. Al-Ard's leaders were repeatedly placed under house arrest, subjected to administrative detention, and exiled to remote, Jewish-populated towns.^[9] In 1964 the government denied Al-Ard's request to register as an association. Yet another petition reached the Court, but this time the tide had turned. The Court unanimously found the denial valid.^[10] At about the same time, Al-Ard was declared illegal under the Defense (Emergency) Regulations of 1945.

Al-Ard then decided to form a political party and run in the 1965 elections. It stands to reason that its leaders hoped that Knesset representation would win the group both public exposure and parliamentary immunity.^[11] They named themselves the Arab Socialist Party, fulfilled all the requirements of the elections law, and submitted an application to the Cen-

tral Elections Committee. Their list included all the leaders of Al-Ard, and it was easy for the attorney general to persuade the committee that this was the outlawed Al-Ard in another garb.^[12] For the first time in Israel's history, a party was forbidden from participating in the democratic process, and the electorate was denied the opportunity to consider its platform.^[13] The message to Israeli Arabs was unambiguous: a political organization based on Palestinian nationalist aspirations would not be tolerated.^[14]

Defending the Arab Right to Incorporate:
Agranat's 1960 Qardosh Opinion

Throughout his life, Agranat had displayed a tolerant attitude toward Arabs. Since his arrival in Palestine, he had encountered Arabs from all walks of life, had represented a few in court, had adjudicated cases in which litigants were Arab, and had cooperated with fellow Arab judges in the common struggle to improve the working conditions of the judiciary in Mandatory Palestine. His goodwill survived the War of Independence. In the early 1950s, as a junior associate justice, he had erected the first barriers against the army's heavy-handed use of the Defense (Emergency) Regulations against Arabs.^[15] In 1955, as chairman of the Central Elections Committee, shortly before the Sinai Campaign, Agranat sympathized with the plight of the Arab population, which had been subjected to military rule since 1948. Refusing to avert his eyes from the abuse and harassment inflicted on them by the military governors who quelled dissent while engineering Arab voting patterns, Agranat insisted on a more tolerant policy.^[16] In the celebrated Kol ha-Am case he invalidated the suspension order of both the Hebrew Communist newspaper and its Arabic counterpart, Al Itihad, thus insisting on the equal protection of the laws whenever fundamental liberties, such as the freedom of the press, were at stake.^[17]

When in 1960 Al-Ard challenged the government's decision to prohibit its registration as a corporation, Agranat applied the same liberal attitude.^[18] The statute that invested power in the companies' registrar was typical colonial legislation. It allowed the executive branch "absolute discretion" in deciding whether to allow groups to incorporate. The registrar argued that the term "absolute discretion" meant no or minimal judicial review of his action. Justice Haim Cohn, who as attorney general defended the army in the Al-Couri case, agreed. No matter how arbitrary the decision, he opined, the Court could not intervene.^[19]

Agranat had a different view. For him, the concept of the rule of law was richer than mere adherence to the letter of the law.^[20] The fact that administrative agencies were vested with "absolute discretion" did not mean that their powers were standardless. Agranat feared that Cohn's purist positivism would turn "the government of law" into "a government of men," because it would give officials a free hand to limit civil liberties. Agranat took the jurisprudence he developed in Al-Couri and Kol ha-Am one step further, holding that "[t]he general principle is that every administrative agency should act within the four corners of the purpose for which it was vested with powers by the law," regardless of whether the statutory language created absolute or limited discretion.^[21]

In order to grasp the significance of this result, it is important to understand the strong appeal of the government's argument. The registrar had based his decision on considerations of national security—the need to dismantle the base that enabled Al-Ard to accelerate its grass-roots campaign—and had been supported by both the police and the attorney general. Agranat could easily have concluded that the argument from national security, coupled with the government's solid conviction that Al-Ard had subversive potential, legitimized the decision. He declined this option, preferring a more Liberal course of action. In essence, he said, the ban amounted to censorship in that it purged a certain voice from the public discourse. Censorship, he said, was "a difficult, complex and delicate matter," even when national security concerns were clearly at stake. Quoting at length from his Kol ha-Am opinion, he reiterated his warning that fear for security might subvert the democratic spirit: "It would be a failure of the first order if the enemies of democracy were to force us to abandon our belief in the power of deliberation built upon credible information . . . and thereby lowered us to their own level."^[22]

Because of Israel's democratic nature, Agranat held, censorship should be exercised only by officials who were explicitly vested with the power to censor. It was not necessary to add yet another means to the repressive arsenal already available to the government. The powers of the registrar should not be interpreted to include ideological monitoring. Agranat made a classic point in administrative and constitutional law, but his choice of words gave it added panache. Evidently, he had reservations about the government's habit of using Mandatory legislation to consolidate its own hegemony.

Putting the government's characterization of Al-Ard's ideas as dangerous in quotation marks, twice describing censorial powers as "harsh," twice posing rhetorical questions, and ending with an expression of be-

wilderment accompanied by an exclamation mark, Agranat brought his opinion to a powerful finale: "In view of the detailed and drastic measures, available [in] the Defense (Emergency) Regulations, one should pose, again, the question: is it conceivable that the wish to prevent "dangerous" opinions . . . is within [the Registrar's] . . . jurisdiction . . .? Is there room for the view—given the proliferation of the censorial means, and their harsh nature—that the [Registrar's] power . . . was meant to serve as yet another means? I wonder!"^[23] The fact that the petitioners were Palestinian Arabs was not mentioned in Agranat's opinion, as if to state that the Court was ethnically blind.

Stunned, the government asked for a further hearing. The Court convened a five-justice panel, with Chief Justice Olshan and Justice Sussman joining the original panel composed of Agranat, Witkon, and Cohn. A majority of 3–2 sustained Agranat's result. Agranat could not have been surprised by Olshan's dissent or by Olshan's wry observation that although he "could not disagree with Agranat's progressive views," he still thought the result smacked of too large a dose of judicial activism.^[24] Olshan, who identified with the government in matters of national security, appreciated "progressive views" as long as they stayed clear of national-security policy. One wonders whether that was the reason why Agranat, then deputy chief justice, was not included in any of the successive panels adjudicating Al-Ard's petitions to the Court between 1961 and 1965.^[25]

It may well be that Al-Ard harbored hopes that, with Agranat as chief justice, the Court would be willing to defend the group's political rights. But this time Agranat upheld the Central Elections Committee decision to ban Al-Ard from the ballot. The core of Agranat's Yeredor opinion revolved around the fundamental values of the Jewish state. For the first time in Israeli history, the "Jewishness" of the state was declared a core constitutional value, to which political and civil liberties were subordinated.^[26]

Yeredor :
Limits on the Political Rights of Israeli Arabs

Because the impending Festival of Succot coincided with the imperative of reaching a judicial determination within four days, the three justices convened at Agranat's home during the Court's recess. Justice Haim Cohn, prolific and efficient, was ready with a written opinion invalidating the ban. Cohn argued that the Elections Law did not authorize the Central Elections Committee to ban parties on substantive

grounds. The rule of law, he elaborated, required explicit statutory power to ban a party.^[27]

Sitting in his living room, listening to Cohn's arguments, Agranat pretended he did not feel hurt. The Court's unwritten code of conduct required that the justices not write opinions before judicial consultations had been completed. By preparing a written opinion, Cohn had violated the rules, thereby challenging Agranat's authority. Agranat was also surprised that Cohn, who had previously held that Al-Ard should be denied the right to form a corporation,^[28] now gave the group a chance for political survival. Perhaps Agranat added Cohn to the judicial panel (the choice of Justice Sussman could be explained on the basis of seniority) expecting that he, who had a solid national-security background by virtue of having served as attorney general, would be the appropriate substitute for the retired Olshan. He might have expected that Cohn, like Olshan, would take the lead in urging the Court to defer to the judgment of the government in matters of national security.

The government insisted that the group was subversive. If Agranat were to join Cohn, there would be a majority against the government's position. Would that not jeopardize the state? It was one thing to let Al-Ard operate as a private corporation, quite another to let it promote its agenda under the umbrella of parliamentary immunity. And then, if the group indeed engaged in subversive activities, would not the Supreme Court, which had given it license to exist, be perceived as a negligent guardian of the national interest? Agranat understood Yeredor to be a test of his leadership as the newly appointed head of a co-equal branch of the government. He recalled being concerned not only with upholding the rule of law, not only with the status and reputation of the Court, but also with the best interests of the state. He needed time to reflect.

The private judicial conference took place on the eve of the Sabbath. Ever since he had joined the Court, Agranat had adopted the habit of refraining from writing on the Sabbath.^[29] On the heels of this Sabbath came the holiday of Succot. Only after the holiday ended and the family guests had left did Agranat start to work; he spent the night writing. He decided to uphold the ban. No platform that advocated the destruction of the Jewish state should be permitted representation in the Knesset. He did not know whether his opinion would be in the majority or in the dissent, for Justice Sussman had not yet indicated his position. Only the next morning in Court did he learn that Sussman concurred in the result.^[30] Cohn remained the lone dissenter.

One legal hurdle to affirming the ban was that the elections statute said

nothing about banning parties that fulfilled all of the technical requirements enumerated by the law. Agranat's opinion conceded that Cohn was right, holding that, in general, the powers of the Central Elections Committee were merely ministerial, not discretionary. But unlike Cohn, Agranat would never agree that the rule of law could be reduced to the strict application of statutory language. Agranat insisted on considering the statute in context; a judge was permitted, even obliged, to reinterpret the law in a way that made it responsive to contemporary problems. Yeredor , Agranat announced, was a unique case, and its resolution required analysis beyond the black-letter law. Agranat considered imperative a return to the basic constitutional premises on which the state had been established.

Israel's Declaration of Independence asserted the "natural and historic right of the Jewish people to live like any nation." Agranat asserted in the opinion's central statement that this meant that the "continuity—and if you wish: 'the immortality—of the state of Israel—is a fundamental constitutional premise'" which no organ of the state may ignore.^[31] Hence the Knesset could not put the issue of destroying the state on its agenda, the Central Elections Committee "had no option but to ban Al-Ard," and the Court was obliged to uphold the ban.^[32]

Agranat set two "facts" on a collision course: the survival of the Jewish state, and the intent of Al-Ard to destroy it. Each "fact" was charged with complexity. Together, they offer a clue to Agranat's state of mind at this important juncture in his judicial career.

Intent to Destroy the State or an Expression of Palestinian Nationalism?

Agranat based his factual finding that the Arab Socialist Party aimed to destroy the state on two grounds: the judicial upholding in the previous year of the government's proclamation that Al-Ard was an illegal organization,^[33] and the finding of the Central Elections Committee that the Arab Socialist Party was, in fact, Al-Ard. Justice Landau, chairman of the Central Elections Committee, relied on the same precedent in recommending the ban. Landau conceded that the burden of proof required to satisfy the committee was "much less" than that required by a court of law.^[34] Indeed, as Justice Cohn pointed out in Yeredor , the committee had no proof, except the judicial holding and the subsequent executive declaration that Al-Ard was an illegal organization.^[35] The proof,

then, was embedded in the Court's holding from 1964. That holding was based first and foremost on an interpretation of Al-Ard's constitution provided by the military authorities. In a concurring opinion in the 1964 case, Justice Landau relied on a broadcast from Radio Cairo and an article from the Jordanian newspaper, Falastin , both praising Al-Ard. The members of Al-Ard had only one prior conviction, for publishing a newspaper without a permit. No further evidence of any conviction for violation of Israel's law was presented. The conclusion that Al-Ard was, in fact, determined to destroy Israel rested on an analysis of Al-Ard's written statements, fortified by statements from Arab media outside Israel.^[36]

Al-Ard's constitution, however, was much more ambiguous than the interpretation given it by the military and adopted by the Court. Its first two articles vowed to "raise the [social] level of its members" and to "establish full equality and social justice among all social groups in Israel."^[37] The land mine appeared in article 3, which called for "finding a just solution to the Palestinian problem—viewing it as an indivisible unit—in accordance with the will of the Arab Palestinian people . . . which restores its political existence . . . and [which] sees it as holding the first right to determine its destiny by itself, within the framework of the superior aspirations of the Arab nation."

One did not have to be a security expert to see that this article constituted a ringing affirmation of the Palestinian national narrative, the narrative that Israelis hoped had evaporated with the Arab defeat in the 1948 war. Viewed from this perspective, Al-Ard's constitution reflected the menacing reality that the Palestinian narrative had returned to challenge the legitimacy of the Zionist narrative. Further consultation with the "contemporary political dictionary" revealed more alarming layers of meaning.^[38]

The security experts invited the Court to treat Al-Ard's text as a code that, once cracked, revealed an ominous subtext. The term "Palestine problem" stood for the restoration of the status quo ante, preceding the War of Independence. "An indivisible unit" meant a rejection of the idea of partition. "Restoration to political existence" meant a Palestinian state, in lieu of the state of Israel. "The first right to determine its destiny" asserted Palestinian primacy in defining and implementing a political solution, the right of return (to homes left during the 1948 war), and the restoration of land confiscated from Palestinians and given to Jews. The "framework of the superior aspirations of the Arab people" meant inviting Egypt's Nasser, Israel's nemesis, to have a say in the resolution of the conflict and served as a reminder that Jews were a mere drop in the Arab ocean.^[39]

This interpretation, combined with the name they chose for themselves—"The Land"—could be perceived as a declaration of war. From

the Zionist perspective, "the land" (in Hebrew, Ha-Arets ) belonged to the Jews, who had returned to reclaim it after 2,000 years of exile.

The failure of the drafters of Al-Ard's constitution to recognize explicitly Israel's legitimacy and right of existence touched the raw nerve of Israeli survival anxiety. That silence was interpreted as yet more resounding proof of Al-Ard's evil intent. Thus interpreted, Al-Ard could only be perceived as a movement that required a simple and clear-cut existential choice: us or them.

Of course, Agranat did not have to accept this interpretation. He could reflect on Al-Ard's own gloss on its constitution, which was that the Palestinian Arabs wished to live in dignity, side by side with the Jews; that although Israel was not explicitly recognized, it was implicitly acknowledged as a given. He could choose to evaluate the document as a whole and bring its other, more innocuous parts to bear on the interpretation, or he could take another course and separate fantasy from reality. The Palestinian fantasy, indeed, was the destruction of Israel. The reality was life as a miserable minority under military rule. Israel fantasized itself as a diminutive David fighting a giant Goliath. In reality David was far from being a powerless wimp. Agranat could distinguish belief from conduct and assign legal consequences only to the latter. He could require some concrete proof that illegal conduct either took place or was being planned. He could ask whether actual representation would not foster goodwill and responsibility. Finally, he could view the fact that some Jews were included in the list as a brake on Palestinian harshness, perhaps as an encouragement of ethnic interaction. All of the above were equally plausible options. But Agranat chose the factual gambit—"which should not be reflected upon"—that Israel's survival was at stake.

In his mind, there was no bridge between Zion and Falastin.^[40] National sovereignty, embedded in the charged term "The Land," could animate only one nation, and the question had been resolved in 1948 in favor of the Jews. Al-Ard's Palestinian narrative cast a dark shadow on the Zionist narrative. This shadow, it appears, propelled Agranat to insist on the Jewish state as an axiomatic "constitutional premise." Israel, he said, was "here to stay, and its continuity and immortality should not be reflected upon."^[41]

"A Fundamental Constitutional Premise":
The Zionist Narrative

Agranat took his guiding principle from the Declaration of Independence. That was not the first time he had invoked the declaration.

In the 1953 Kol ha-Am case he had abandoned precedents that denied the declaration normative value. Invoking a model borrowed from Progressive Harvard Law Professor Zachariah Chafee Jr.,^[42] holding that the laws of a nation should be interpreted in light of the national vision and its core values, Agranat conferred on the declaration normative validity. In Kol ha-Am he used the link between domestic law and the national vision to validate a shift from the authoritarian regime of Mandatory Palestine, with its repressive legislation, toward a more Liberal regime, consistent with enlightened Zionism. In Yeredor Agranat used the same model, this time to assert the supremacy of the Zionist narrative.

Clearly, Kol ha-Am and Yeredor were in tension with each other. In Kol ha-Am the "national vision" inspired a judicial commitment to political and civil liberties; in Yeredor that very vision called for a commitment to the Jewish state that would trump political liberties.^[43] In Kol ha-Am Agranat applied the probable-danger test to evaluate and reject the government's contention that speech posed a danger to the nation's security. Yeredor cited Kol ha-Am but ignored its doctrine of probable danger and overlooked its warning against overzealous security arguments.^[44] Agranat explained the reason for his rejection of rights jurisprudence in favor of his commitment to the idea of the (Jewish) nation-state: "For if you would not say so [that the Jewish state is a fundamental constitutional premise], it would mean complete ignominy toward the two wars Israel has fought, since its establishment, in order to prevent its annihilation by the hostile Arab states; it would mean utter negation of the history of the Jewish people and its aspirations, including the contradiction to the fact of the Holocaust . . . before the establishment of the state . . . and which proved anew . . . the necessity of resolving the [Jewish] problem."^[45]

This statement is a ringing reaffirmation of the Zionist narrative: the calamities and persecutions visited on the Jews in exile; the return to Zion; the blood spilled and the tears shed for the attainment of political sovereignty. Invoking the Holocaust in this context echoed the "correct historical perspective" distilled by the Eichmann trial: that a Jewish state was absolutely necessary for the resolution of "The Jewish Problem."

Eichmann nourished and fortified the Zionist banner of "never again": never again should the Jews remain without the means of political power—a state of their own. A constitutional principle that put the Jewish state above and beyond all other values would serve as yet another weapon in the defense of "never again." Adopting the harsh approach toward Al-Ard, Agranat's Yeredor opinion projected the collective vision of catastrophe Zionism, of a common Jewish destiny of victimization and

persecution, in which the Arabs had now emerged as the "other," the enemy that threatened Jewish life.^[46]

An additional reason for the overwhelming weight Agranat now assigned to the Jewish state related to the resolution of the Golan crisis that he confronted during the same week. That crisis resulted in asserting the supremacy of judges over rabbis. It concerned the rabbinical assertion that Israel was not sufficiently Jewish, perhaps not Jewish at all. Agranat's characterization of "Jewishness" as "a fundamental constitutional premise which could not be challenged," was a response to the rabbis. Israel was Jewish, Agranat seemed to be saying to the rabbis, even if its citizens were secular, because Jewishness was much more than a religious way of life. Perhaps he was trying to unite the secular and the religious by reference to the common enemy—the Palestinian Arab.

Nowhere in the opinion did Agranat demonstrate overt awareness that his position suppressed the Palestinian narrative in favor of the Zionist one. His reference to the threat of "annihilation by the hostile Arab states" presumably alluded to a version of Zionist ideology that denied the existence of Palestinian nationhood and viewed the conflict as one between Israel and the Arab states. His awareness that Al-Ard was about Palestinian collective rights flowing from nationhood could be discerned only from his claim that denying the "fundamental constitutional premise" would amount to the "utter negation of the history of the Jewish people." Yet only his perception of the unbearable incompatibility between the two narratives would lead him to abandon his lifelong dedication to bridge building as well as his attachment to the bright side of Zionism: the utopian vocation of Israel.

Utopian Zionism was never immune to catastrophe Zionism. Both played a role in shaping Agranat's worldview. But his work up to and including the Qardosh opinion reflected a constant search for the balance between the needs of national security and the universalist vision of a Progressive society. In Yeredor this effort stopped. Survival anxiety had become so overwhelming that it paralyzed his Progressive convictions. That his reasoning was animated by deep fears was evident from his adhesion to "facts," which actually were ideological constructs, and from his assertion that these "facts" should not be doubted or, in his words, "should not be reflected upon." He had to still his doubts and flatten his deep-seated Liberalism, thereby creating a rigid structure within which he could do what he thought was now imperative in order to protect the state.

But because he did not recognize the struggle as one between Zionist and Palestinian narratives, he could not simply reject one in favor of the

other and thereby conclude his opinion. In his mind, the contradiction was between the essence of Israel as Jewish and Israel's commitment to a democratic form of government. He therefore felt obliged to reconcile the commitment to democracy with the suppression of a certain point of view.

The Jewish State and the Commitment to Democracy

A commitment to democracy and a guarantee of political and civil liberties were embedded in the Declaration of Independence and constituted the pillar of Agranat's jurisprudence. The heart of democracy, he knew, was the right of representation. How could he deny it to one political party and still retain the democratic character of the state?^[47] Agranat believed that he found a "decisive answer" in the notion of self-defense, democracy's need to defend itself against its enemies.^[48] He chose three historical events to substantiate this point, each revealing his evolving worldview in the 1960s: the defeat of the Weimar Republic by the Nazis, the cold war, and the American Civil War.

First, the fall of the Weimar Republic: "Occasionally, fascist and totalitarian movements arose against the democratic states and used all the rights of freedom of speech, press and association . . . in order to conduct their destructive activities under their shelter. Whoever witnessed it during the days of the Weimar Republic would not forget the lesson."^[49] The quotation came from Justice Witkon, who had been forced out of his native Germany by Hitler's Third Reich and who authored the passage to justify the 1964 banning of Al-Ard. His experience with the Nazis shaped his judgment of the Arabs. The analogy between Arabs and Nazis was common among Israelis.^[50] The Eichmann trial, fresh in Witkon's memory as he wrote this passage, also served to make the lesson more acute and immediately relevant. Tolerance of the Nazis by the Weimar government facilitated their ascendance to power. Tolerance of Al-Ard might end in yet another calamity for the Jews.^[51] Agranat had now come to assimilate this view. The trauma of Eichmann made him focus on national survival in ways he, a native of America, had never done before. Further, political events in 1963 fed the fear of an Arab-Nazi conspiracy: the press was full of stories about German scientists, mostly former Nazis, building an arsenal of atomic, chemical, and biological weapons in Egypt for use against Israel.^[52] It was therefore the duty of Israel's government,

its Court included, to avoid the mistakes of Weimar and to kill the serpent of Al-Ard when it was still in the egg.

Agranat next invoked the cold war: "[A] party owing a foreign allegiance, and only acting in the democratic system in order to overthrow the system, can hardly in justice claim the benefit of the system." The quotation, from the pen of political scientist Ernst Barker, was based on the cold-war theory that the Soviet Communist Party controlled and guided sister parties in Western democracies, as a part of its goal to destroy the free world.^[53] In 1953 Agranat had rejected this theory as an insufficient justification for suppressing Israel's Communist Party. In Kol ha-Am he had endorsed the "probable-danger" test announced in the American Dennis v. United States case but had rejected the conclusion that the Communist Party could be constitutionally suppressed.^[54] Now Agranat was using this justification to suppress Al-Ard. It is quite conceivable that the events of the 1950s and the early 1960s (the Cuban Missile Crisis comes to mind) made him take the Soviet menace more seriously. His thinking must have been affected by Israel's entanglement in the cold war and the staunch anti-Israeli and pro-Arab stand taken by the Soviet Union.^[55] The verbal support offered to Al-Ard by Egypt and Jordan convinced Agranat that the case fell into the model, described by Barker, of "a local party owing foreign allegiance." The Palestinian party was to Israel what the Communist Party had been to America, and the defense of democracy required the suppression of both. Having thus introduced the relevance of the American experience, he was ready to summon the quintessential crisis in American history, the Civil War, as a justification for the suppression of Al-Ard.

Agranat quoted from Abraham Lincoln's address to Congress after the secession of the Confederacy: "It forces us to ask: 'Is there, in all republics, this inherent and fatal weakness? Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?' The reply given to this question by the glorious President [Lincoln], in theory and in practice, is known to all."^[56] Agranat spoke as a son of the state of Illinois. In his youth he had spent many hours studying the Civil War.^[57] President Lincoln had been his hero, and he was familiar with Lincoln's many speeches long before he became aware of the Arab question. For him, the Civil War was the paradigm of a just war. It was only natural that, as his mind searched in the late hours of the night for justifications for upholding the ban, the Civil War and Lincoln would be invoked. Only one steeped in American culture and history could draw an analogy between the leaders of the Confederacy and the Palestinians

or equate Israel with the Union. In his anxiety about the balance he was striking, Agranat found comfort in Lincoln's powerful rhetoric. "The glorious President" helped him see the conflict as one between the republic and its detractors, not as a conflict between two nations claiming the same homeland. Thus he could wrap the Zionist narrative in the flag of democracy and avoid the painful truth that, in the Jewish state, some were less equal than others. It was a comforting argument, and he was content to make it the last paragraph of his opinion.

There was one more, unmentioned yet present, reason to be anxious, for which Lincoln could also provide a model. Like Lincoln, he was a new president (of the Court) whose leadership was being tested as he was facing a major constitutional crisis. In interview he told me that he thought he had done "what the people wanted." In reality, he deferred to his fellow justices, to the Knesset (the Central Elections Committee, which represented the entire spectrum of parties), and to the executive branch. Deep in his heart he, too, wished to be a glorious president; and protecting the Jewish state, avoiding risk, and retaining solidarity on the Court seemed to him to be the right steps for a leader not yet six months in office. Thus understood, the Yeredor case had as much to do with Agranat's new role as chief justice and the tension between religion and the state as with the Arab–Israeli conflict.

Continuity and Change:
The Court's Future

The celebration of the Zionist narrative was not only a reaction to the appearance of the Palestinian narrative in Al-Ard's platform. Agranat was now chief justice—president of the court. Like most people who ascend to high office, he experienced an emotional upheaval. On one hand, he felt enormously proud and gratified. The Jewish people had a state of their own, with a judiciary of their own, and he, the boy from Chicago, now led this distinguished institution. The High Holidays only added to the festive feeling of gratitude and wonderment at all that he and the young nation had accomplished. In this state of elation, feeling a deep identification with his people and his state, there is little wonder that Agranat was moved to celebrate the Zionist narrative, at the expense of the Palestinian right of collective representation, if need be. In the crucial part of his Yeredor opinion he discussed the "continuity—and if you wish: 'the immortality—of the state of Israel [as] a fundamental constitutional premise'" that no organ of the state could deny.^[58] He might as

well have been talking about "the continuity and immortality" of the Court. By adhering to the earlier judgments against Al-Ard, he was signaling, first and foremost to his brethren on the Court, his resolve to opt for continuity. It may well be that he was also signaling to the government and the security establishment that, regardless of his "Progressive opinions" in Kol ha-Am and Qardosh, the interests of the state would be well protected under his leadership.

Thus the explanation for Agranat's opinion in Yeredor is a complex amalgam of the various antinomies within Zionist thought as well as the peculiar circumstances of October 1965. Eichmann sharpened Agranat's focus on the perils of survival, thereby marginalizing the ideological emphasis on social reform.^[59] The crisis related to the Golan report exacerbated the tensions between religion and state. The Arab–Israeli conflict accentuated the tension between democracy and the Jewish state. All of these coalesced to shape Agranat's perception of his role as chief justice. One may well imagine that his determination to succeed coexisted with a fear of failure. That fear animated his thoughts is evident from the first paragraph of the opinion, in which he described Justice Cohn's dissent: "I read with great interest the instructive—and if I may add: the courageous opinion of my colleague Justice Cohn. But it is not in my hands to agree to the final conclusion."^[60] He knew that his own opinion was timid. But when in doubt, he had followed the maxim that caution is the better part of valor, and so he did in Yeredor . This caution, the care not to deviate too far from what he perceived as the national consensus, would be the main thrust of his judicial opinions as chief justice.^[61]

At about the same time as Yeredor was pending before the Court, Israel's government was reviewing plans to terminate the regime of military rule over Israeli Arabs. Military rule was abolished in 1966.^[62] But Israeli Arabs did not have a chance to ponder peacefully the question of who is a Palestinian-Israeli-Arab. The Six Day War brought the Palestinian population of the West Bank and Gaza under Israeli rule, thereby highlighting most forcefully both the Arab–Israeli conflict and the tension between the Zionist and Palestinian narratives. Meanwhile, the volatile marriage between religion and state was again placed on the Court's agenda. A perennial problem, which smoldered throughout the 1960s, appeared to tear the Zionist consensus from within. It came to be known as the question of "Who Is a Jew."