Israeli NGO pressed for disclosure about Zygier six months before suicide
Attorney general refused to lift the gag order, citing 'grave danger to state security.'
From the moment it learned that an anonymous prisoner was being held in solitary confinement, the Association for Civil Rights in Israel tried unsuccessfully to get the gag order lifted on what became known as the "Prisoner X" case. On Wednesday, the courts finally lifted a gag order on these efforts, offering another tiny glimpse into the case.
On May 13, 2010, the Ynet website reported that a prisoner was being held in complete isolation at Ayalon Prison; not even his jailers knew his name. Soon afterward, the report disappeared from the site.
On May 16, 2010, ACRI legal adviser Dan Yakir wrote Attorney General Yehuda Weinstein to voice concern: "It goes without saying that a situation in which a prisoner or detainee is held in isolation from the outside world, and certainly for any length of time, is extremely dangerous."
Aside from "the enormous potential for infringing on various human rights," Yakir noted that being held in isolation can cause severe psychotic reactions. According to medical research cited in a 1996 report by the Israel Prison Service and the Public Security Ministry, these include visual and auditory hallucinations, feelings of suffocation, confusion, loss of memory, attention deficits, obsessions and paranoia.
"Secret arrests and trials are unacceptable in a free democratic state," the letter concluded.
"They constitute a real threat to the rule of law and greatly undermine the public's faith in the legal system."
On July 13, 2010, Weinstein's senior aide (and today deputy attorney general ), Ran Nizri, replied that the gag order on the case "is vital to prevent grave damage to state security," but that Weinstein's office was monitoring the situation closely to ensure the prisoner's rights were upheld.
In December 2010, the prisoner - whom foreign reports have named as Ben Zygier - was found dead in his cell. On December 22, ACRI asked Weinstein to reconsider the gag order, so that the public, the media and the Knesset could monitor the subsequent investigation. Two newspapers, Haaretz and Yedioth Ahronoth, filed similar requests.
'Real danger to human life'
In response, Weinstein's office reiterated that both it and the courts were monitoring the case, but "any publication would cause real, concrete harm to state security and real danger to human life."
ACRI and the papers appealed to the courts, but on January 9, 2011, Central District Court President Hila Gerstl upheld the gag order.
"The applicants' lawyers argue that only in rare and exceptional cases is there justification for a sweeping gag order that covers even the very fact of a person's imprisonment," she wrote. "I agree - but this case is the very case for which that statement was meant. ... I have no doubt we're dealing with such a sensitive case that mentioning any detail about it, about its very existence, about the defendant, his conditions of imprisonment or the very fact of his arrest, is liable to cause extremely grave harm to the security of the state and its citizens."
The prisoner's death, she added, doesn't reduce this danger in any way.
On January 20, 2011, ACRI appealed to the Supreme Court. But Justices Dorit Beinisch, Miriam Naor and Edna Arbel, after informing the organization that an investigation of the prisoner's death was underway, advised it to withdraw the appeal. ACRI, despite saying it deemed a secret probe unsatisfactory, agreed to do so.
After the foreign media broke the story last week, ACRI again asked Weinstein to reconsider the gag order. If, as foreign reports claim, Zygier really was a Mossad agent who leaked sensitive information, "then there might be justification for banning publication of the details of the case," it wrote. "Nevertheless, there is a supreme public interest in knowing what conclusions were drawn from the case and what lessons were learned to prevent a recurrence."
In particular, it asked Weinstein to approve publication of details from the inquiry into Zygier's death.
On Wednesday, the courts - with the state's consent - finally did release a few details, including the fact that the state wanted the case closed after investigating Judge Daphna Blatman Kedrai issued her report, but she found evidence of negligence by prison officials and urged the prosecution to consider issuing indictments. Nevertheless, many questions remain: Was Zygier's isolation really necessary? Did he get proper psychiatric care? What kind of pressure was he under from the state?
And above all, had the courts struck a different balance between state security and the prisoner's rights when it issued its sweeping gag order, would this have resulted in Zygier getting better treatment, or perhaps even prevented his suicide?
Like many before it, this case once again shows that when national security is involved, the courts tend to accept the state's position on gag orders unreservedly. That, charged Yakir, is precisely the problem.
"The courts must not serve as rubber stamps for requests by the security agencies," he said. "They must exercise independent judgment, defend the public's right to know and enable minimal public oversight. ... Unfortunately, that isn't how the courts acted in this case."