Behind Closed Doors? The Information Is Already on the Web

Israel's courts have a structural bias against the public's right to know and in favor of security considerations; Even worse, they aren't aware of this bias and its grave implications.

Ido Baum
Ido Baum
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Ido Baum
Ido Baum

In contrast to conventional wisdom, the publication of information defined as 'military' in Israeli media outlets is determined more by the courts than by the military censor. Unfortunately the courts have a structural bias against the public's right to know and in favor of security considerations. Even worse, the courts aren't aware of this bias and its grave implications.

In a process that began with the famous Schnitzer ruling by the High Court of Justice in 1989, the censor opened the gates of information, accepting the principle set by the High Court: Only information whose publication carries a "near certainty of actual harm to security" should be censored; everything else is permitted for publication.

The High Court opened the dam, but it was soon rebuilt by other courts. The courts turned out to be the most efficient tool for blocking the publication of security-related information, in the form of comprehensive gag orders.

The Courts Law authorizes judges to order the holding of certain legal proceedings, dealing with security matters, behind closed doors. One article of the law comprehensively prohibits the publication of any details of an in camera proceeding unless explicitly approved by the court. Nice and simple.

Those who believe in democracy find the practice of issuing gag orders hard to stomach. When a court considers holding a procedure behind closed doors it is supposed to strike a balance between the principle of public process, which is the rule, and the interest of state security, which is the exception.

Usually the public and the media are not aware of these decisions at the outset, because they are not considered an interested party. At best, the defendant's attorney will argue in favor of publishing the information and against holding the process behind closed doors. The state usually argues the case of maintaining state security and persuades the court to order the proceeding to be held in camera. From the moment the court issues the order, a dark curtain is drawn against the proceedings. In practice no formal gag order is then required to prevent the publication of information from or about the proceeding.

If such information does somehow reach the media, the state prosecutor will immediately request a gag order. In such cases the courts tend to prohibit the publication not only of information originating in Israel, but also information published abroad. Sometimes even the publication of references to Internet links, quotations from "foreign sources" or Facebook postings can be blocked.

These gag orders are anachronistic. The international press reports events in Israel. Facebook is full of links to news websites. Knowledgeable bloggers, as well as ignorant people, share infinite amounts of information all of it prohibited for publication in Israel.

The violation of a gag order is a serious offense, punishable by imprisonment. The legal ban is so sweeping that an Israeli blogger who posts a link to a foreign website that is subject to a gag order could face prosecution.

The most appealing characteristic of these gag orders is their durability: In camera court proceedings are "X files" forever. The media have only a slim chance of breaching the dam.

Gag order.

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