As a Democracy, How Can Israel Censor Citizens' Right to Know?

Unfettered by censorship and armed with the First Amendment, The New York Times published top-secret material in 1971 about the Vietnam War. Similarly, says Times lawyer Floyd Abrams, Israel's military activity in the territories 'is something the public should know about'.

Yes, said attorney Floyd Abrams immediately. Of course the Anat Kamm-Haaretz affair reminds me of the Pentagon Papers-New York Times affair. The well-known American lawyer was only 35 when a federal injunction was issued to his client - the most important newspaper in the world - to cease publication of classified documents that revealed the lies told by the Pentagon to justify an escalation of its involvement in the Vietnam War. The source of that information also believed he was working on behalf of his country's real security interests; the Times, too, protected its source. However, unlike the secret army order to execute Palestinian suspects, the Pentagon papers were published without any need for permission from a military censor.

In the United States, as in most enlightened and democratic countries, there is no military censorship. The Pentagon Papers affair erupted in 1971 when Daniel Ellsberg, an employee of the RAND Corporation, a research institute, leaked to New York Times reporter Neil Sheehan scores of secret documents showing that top officials in the American administration were sending more and more soldiers to their death in a war they knew was futile. After the Times refused to stop publication of a series of articles on the subject of its own volition, president Richard Nixon ordered attorney general John Mitchell to issue a federal injunction prohibiting their continued publication, on the grounds that the stories were causing serious harm to national security. However, the Supreme Court accepted the newspaper's appeal and allowed publication of the documents in full. Two years later, a court acquitted Ellsberg of charges of espionage and theft of government documents.

Eight years ago, in an interview he gave on the occasion of the publication of his book, "Secrets: A Memoir of Vietnam and the Pentagon Papers," Ellsberg said that if people "have documents indicating that the [government] is lying the public into such a war, they should take those documents to the Congress and to the press, and tell the truth - even if it costs them their clearance, their job, their career, even if puts them in prison." Floyd Abrams, who still handles First Amendment cases for the Times and who is married to an Israeli, is very familiar with the Israeli reality.

"Security can be defended in a variety of ways," he explained in a telephone interview with Haaretz. "Armed force is one essential way, especially for a surrounded and threatened nation such as Israel. But no less important is the security that comes from an informed public, one that is both free enough and knowledgeable enough to challenge the behavior of its own government. Democratic nations such as Israel require both sorts of protection, and must take care not to sacrifice either."

Abrams does not sound surprised that public discourse here is focusing on the messengers, rather than on substance. The 73-year-old Jewish attorney dubs the storm raging in the political and military establishment today around the Kamm-Blau affair "the Goldstone effect." He understands that revelations about inappropriate behavior by military forces in the territories touch especially sensitive nerves in the establishment.

"Israel has always lived under a regime which involves a level of censorship," he says, "and it is especially important to use the power to censor only in situations of genuine harm to national security, and not in a situation of particular embarrassment to the country or the government. In this case, I think the government's train has run off the tracks in enforcing the censorship that we have seen here, in the manner that they did. I would say that what we have seen is that the nature of censorship is that it leads to more censorship. Keeping information secret and suppressing the publication of it, even when it is known to a newspaper, leads to more of the same and even less information being made available to the public."

The lawyer proposes making a clear distinction between the way the security authorities should deal with Anat Kamm herself, and the way they should deal with the information she revealed. Abrams insists information is legitimate even if it has been obtained in illegitimate ways - unless it indeed deals with matters of highest national security.

"I think that someone who is aware of significant wrongdoing," he explains, "ought to come forward and try to stop it and the most obvious way is by revealing it: like Daniel Ellsberg."

According to Abrams, the information Kamm disclosed "is a good example of something that the public should know about. If there's a violation of rulings of the Supreme Court embodied in orders to Israel Defense Forces soldiers - that is the sort of info that ought to be exposed to the public."

Nevertheless, Abrams, considered one of the ultimate liberal authorities on freedom of speech, says that from the legal perspective, "A soldier who reveals information should not be in the army, and should be subject to punishment for violating her obligations as a soldier."

According to him, American law would not have protected soldier Kamm after she decided to break the law. However, laws regarding espionage in the United States take into account the leaker's intentions: The prosecution has to prove that he or she intended to harm his country or aid a foreign country.

Judith Miller case

Abrams also represented New York Times reporter Judith Miller, who was sent to prison for three months in 2005 after she refused to reveal the source of secret information that came into her hands. And he agrees that when it comes to protecting journalists' sources, the United States has little that it can teach Israel. Even in Britain, where the media generally enjoy less protection than in the United States, a journalist is entitled to prove that concealing the source serves the public better than revealing that person's identity.

Congress is currently discussing legislation that would provide journalists greater protection from having to reveal their sources. In the Pentagon Papers affair, the Times refused to return to the authorities the 22 classified volumes of papers it had, since Ellsberg had left his fingerprints on them, Abrams notes: "We were fortunate that we had a creative judge, who worked out a compromise, so that we could simply disclose the identity of the documents without turning them over."

Since that landmark affair, no U.S. administration (except once in a case during the Carter administration involving an article about how to make a hydrogen bomb) has tried to prevent publication of classified material.

"The lesson has been learned by people left and right," Abrams says. "But it was a legal lesson, which was that it isn't worth it to go to court to suppress newspaper articles."

When told about the prevalent reactions on the Israeli street in the wake of the Kamm affair, it is clear that he is familiar with the situation. He is convinced that public opinion polls in his country would find that in "security cases" - and he cites the example of the illegal wiretappings by the Bush administration that were revealed by the Times - most of the public prefers not to know the truth.

Shortly after the September 11, 2001, attacks, Abrams said in an interview with a reporter for his client, the Times: "Hard times for the First Amendment tend to come at very hard times for the country. When we feel threatened, when we feel at peril, the First Amendment or First Amendment values are sometimes subordinated to other interests."

"The unfortunate side of the event you are undergoing now," observes Abrams, "is that the same government that made the decision to engage in the policy described in the Haaretz article [i.e., that written by reporter Uri Blau, who received his information from Kamm] is passing judgment on the propriety of the publication."

The Zeira case

More than six years ago, three former top officials in Israel's intelligence community gave the new attorney general at the time, Menachem Mazuz, an unusual letter. The three - former Mossad chief Zvi Zamir, Amos Gilboa, who was then head of the research division in the IDF Intelligence Directorate and Yossi Langotsky, a former senior intelligence officer - demanded that Mazuz open an investigation of former Military Intelligence head Eli Zeira, on suspicion of having leaked one of the deepest security secrets in the history of the country.

The officials claimed that Zeira, who was head of MI in the Yom Kippur War, had revealed the name of Mossad source Dr. Ashraf Marwan, an Egyptian officer who had spied for Israel beginning in the late 1960s. On October 4, 1973, Marwan met with Zamir in London and informed him that the next day war would break out. Marwan, who was late Egyptian president Gamal Abdel Nasser's son-in-law, was considered the top Egyptian agent handled by Israel during those years. Three years ago Marwan was found dead in the street after he fell, or was pushed, from the balcony of the apartment where he lived in central London.

Zamir accused Zeira publicly of a leak that caused grave security damage to Israel's security. Justice Theodor Or, former vice president of the Supreme Court, was appointed to mediate in a libel suit Zeira subsequently filed against Zamir. At the beginning of 2007, Justice Or ruled that Zeira had indeed been responsible for the leak. After Marwan's mysterious death, Zamir said he had no doubt the man had killed himself because Zeira had revealed his connections with the Mossad. Zeira was never arrested, however, and to this day, the State Prosecutor's Office has not ordered the opening of an investigation against the 82-year-old Zeira.

This week I submitted a question to the new attorney general, Yehuda Weinstein, as to whether it was reasonable that more than six years later, the state had still not made a decision with respect to a serious leak by a former top IDF general. I reminded him that the Prosecutor's Office had been swift to file an indictment against soldier Anat Kamm for leaking documents, even though the real harm of that act to the state is in doubt.

The office of the Justice Ministry spokesman replied in response that the decision to begin an investigation of Zeira was made only after completion of the civil proceeding between the sides, following the mediator's ruling in 2007 (that is to say, nearly two and a half years ago). According to the spokesman, this was "in the wake of the request to open a complex and comprehensive investigation, accompanied by constraints connected to gathering information from individuals who were abroad. We hope a decision will be made as expeditiously as possible."

The spokesman added: "The comparison between the two cases is not appropriate, because the cases are different from each other in many respects we cannot specify in this context."