A Sphinx in the High Court

The High Court's current stance is important in the context of efforts to impose a stricter blackout on security-related documents.

As with every sensitive issue on our public agenda, the deal with Hamas over the release of Gilad Shalit also reached the doorstep of the High Court of Justice last week, following the military censor's decision to bar publication of the names of the prisoners due to be released in the exchange.

In October, the court made its position clear in connection to the decision of the security cabinet to release women prisoners in exchange for a video confirming that Shalit was still alive. The issue was clearly political in nature, said the justices, and the decision as to the reasonableness and wisdom of the deal was up to the sole discretion of the government, and the court thus had no reason to interfere.

The most recent case involving Shalit related to freedom of expression and the public's right to know. The court was called upon to instruct the military censor to stop invoking the authority to bar publication by the media of the prisoner exchange, including details regarding those due to be released.

This difficult and sensitive case gave the court an opportunity to rule on the issue of censorship pertaining to security matters - a topic which has not been dealt with in a comprehensive way by the High Court in about 20 years. In 1989, it handed down a ruling in a very important, precedent-setting case involving a petition by the weekly newspaper Ha'ir. The case involved publication of a report by Aluf Benn about the head of the Mossad espionage agency. In its verdict, the court said that only "near certainty of actual damage to the security of the state" can justify limitations on freedom of expression.

Since then, that legal position, articulated by justice Aharon Barak, has taken root as the standard according to which censorship is to be conducted. Disputes between the media and the defense establishment are thus aired as was agreed upon, in committee, and therefore censorship issues almost never reach the doorstep of the High Court.

The current petition before the court could have been the basis for a thorough examination of what has become the customary approach in such cases. Adoption of a different standard with respect to the issue of the censor's authority - allowing censorship only in cases of a "clear and immediate danger" to the security of the state or the public - could have been included in a comprehensive ruling.

However, the High Court justifiably saw the need to rule immediately with respect to the Palestinian prisoners, and this is indeed what court president Dorit Beinisch did. The importance of the ruling lies in its confirmation of the standard that dates back to the Ha'ir case, primarily with respect to the recommendation by the Winograd Commission in connection with the Second Lebanon War, according to which it is also appropriate to allow censorship to be imposed in cases where there is solely "a reasonable fear" of harm to state security. Such a position is not consistent with the law on freedom of information, however.

The High Court's current stance is also important in the context of efforts to impose a stricter blackout on security-related documents beyond the already-lengthy periods stipulated in the law relating to public archives.

With respect to the case involving Shalit, the justices ruled, that "it is not in our hands to intervene in the exercise of discretion, inasmuch as we have been convinced of the clear security considerations that exist in the details that are being kept confidential."

The High Court reached its conclusions, with the agreement of the petitioners, after it held a hearing that was closed to the public, in which it was addressed by "an authorized person knowledgeable about the facts relating to the negotiations and the intended 'deal.'" The justices also said that it was made clear to them that human life was hanging "in the balance, in the clearest and most concrete sense."

As this is a verdict that involves confidential matters, it is not possible to assess it intelligently. Such a state of affairs is reminiscent of the ruling by justice Moshe Landau in the 1950s, which restricted immunity on security-related grounds, in which he said "it is not possible to argue with the sphinx."

At the same time, it is still possible to argue with the recent ruling, which is based on the declaration by the state that at least 48 hours' notice will be given from the time the names of the prisoners and information about their deeds are published, and the time their release is actually carried out.

The court agreed that it was a short amount of time, but stressed that the decision on the timing of the publication of the details is within the purview of the authorities, "depending on the circumstances."

In principle, the High Court is backing a prior court ruling, in which Justice Edna Arbel said that it is "proper" that in deals relating to the release of terrorists, longer time periods should be permitted for consideration of any reservations, but that ultimately such decisions should be made by the security authorities, as they see fit.

In any event, and out of respect for the bereaved families, those authorities should decide on their own initiative on a more reasonable time period prior to the release of terrorists, so that in practice, the right to object is not denied, even though the High Court of Justice itself refrained from setting a time frame, as it could have done.