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The Stupid Anat Kamm Gag Order

Yossi Melman explains why he couldn’t report the facts

Yossi Melman
April 08, 2010

TEL AVIV—Was I a chicken? Should I have published the story once I learned of it more than three months ago? Could I have continued to obey a judge’s gag order when I had a no less fundamental duty to the freedom of the press and the public’s right to know? I have been torn between the requirements of the law and the dictates of my conscience.

I knew the details of the case of Anat Kamm, the young journalist under house arrest on charges of serious espionage (in other democracies, she may have been praised as a whistle-blower). But I was blocked from reporting on it because a court issued a non-disclosure order at the request of Israel’s attorney general, who is representing the Israeli Army and the Shin Bet, or General Security Service. The situation, though, became so absurd this week that I could no longer remain totally silent. Additionally, Israeli authorities partially lifted the gag order today.

Only the mainstream newspaper, radio, and television media in Israel remained silent. I can understand why, and it isn’t because they want to shut up. Anyone who published on it would be liable to charges of contempt of court, or worse. We would undermine the principle of obeying the law and might even be accused of lending a hand to illegal activity. That could deal a blow to the prestige and credibility of us in the media.

Left with little choice, my paper, Haaretz, and Israel’s Channel 10 filed court appeals, a month ago, to lift the gag order. But judges in Israel are never in a rush. Once an issue gets to a court, time tends to stand still.

Some international media outlets are confused. They attribute the restriction and blackout to the military censorship which operates in Israel. They are wrong. This time it has nothing to do with the censorship, which falls under a department in the Ministry of Defense. Instead, the gag order is only because of a court decision.

Here’s a basic primer, which I present as a veteran of legal battles against Israel’s defense establishment. As a matter of routine, the arrest, the charges, and the eventual trial are subject to a non-publication order that courts grant at the request of Shin Bet investigators, the army’s field security unit, ordinary Israeli police, or prosecutors. For example, I once tried to publish stories about Israeli intelligence operations on Israeli arms dealers, some of whom were corrupt and operating in India and Singapore, but my stories were suppressed. I also found my stories blocked by unreasonable judges, like the one we are facing now. To take another instance: for three years starting in 2003, I tried to publish the true story of how Elhanan Tenenboim, a corrupt and fraudulent Israeli colonel, was lured to the Gulf Emirates under the guise of a lucrative drug deal, only to be kidnapped by Hezbollah agents, taken to Lebanon, and held there for three years. Time and again, the courts issued gag orders, preventing the Israeli public from knowing the true nature of the case. In result, the government was able to make an immoral decision to swap him in return for Palestinian and Arab terrorists without being challenged by the public.

The reasons officials give for issuing gag orders are unwaveringly identical: Anything that gets published would interfere with the investigation, they claim. After the probe is complete, they give another reason: Israel’s security. For these self-regarded defenders of the realm, every case—however marginal—that touches upon secrets and national defense has the potential to harm Israel’s security.

Even more worrying is the Pavlovian reaction of many Israeli judges. It may be understandable that Shin Bet agents, army field security, or the police might want to get some measure of revenge on a perceived leaker or traitor. One might even see that as the mandate of their jobs. But the fact that most judges grant every security request, without question or reflection, should worry all freedom lovers and all who believe in the most basic democratic values.

And yet, there is no bad without some good. Even a shameful and ridiculous sequence of events such as this case can lead to some realizations. The fragmentary and then, more recently, fairly complete appearance of the story outside of Israel, on the Internet and in the blogosphere, makes a mockery of the defense apparatus, prosecutors, and the courts themselves. The Internet, in particular, has proved itself as a truly democratic—even subversive—alternative to news that is censored by official fiat.

Israelis, who otherwise would respect their nation and its institutions, are increasingly defying the defense authorities’ wishes. Obeying the calls of their consciences, they are publishing what they believe should be published by sending details into cyberspace and thus around the globe.

This case of the female soldier is not adding any points to Israel’s desired image as a bastion of liberty in the Middle East. Instead, the nation looks like one that limits freedom of expression and harasses the press.

There is, in this affair, an important message to the honorable gentlemen and ladies in Israel’s Ministry of Justice and Defense: Image and good name also contribute to the security and prosperity of Israel, no less than the Shin Bet and army field security do.

Yossi Melman is a longtime reporter on strategic affairs, intelligence, and nuclear issues. He is writing a book about the history of the Israeli intelligence community.