Israel's High Court Rejects Petition to Probe ex-Mossad Head for Revealing Iran Op Details

The petition was filed by two former intelligence corps colonels who argue Yossi Cohen caused 'real damage' to national security by divulging military secrets in a 2021 interview

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Former Mossad head Yossi Cohen.
Former Mossad head Yossi Cohen. Credit: David Bachar
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Yossi Melman

Israel's High Court of Justice rejected a petition on Monday that sought to force Attorney General Gali Baharav-Miara to order an investigation into former Mossad director Yossi Cohen for allegedly leaking state secrets.

The petition was filed by Yossi Langotsky and Yoav Dayagi – both former colonels in the intelligence corps – when Avichai Mendelblit was still attorney general. It was sparked by an interview with the television program “Uvda” in which Cohen revealed details about the operation to steal Iran’s nuclear archives.

The petition also named Brig. Gen. (res.) Doron Ben-Barak, then the military censor, as a respondent. Ben-Barak has since been replaced by Brig. Gen. Kobi Mandelblit.

Langotsky and Dayagi, represented by attorney Yuval Yoaz, argued that even though the censor approved publication of the interview, Cohen had given journalist Ilana Dayan additional information, including operational details that the censor hadn’t approved. He thereby divulged military secrets that he wasn’t authorized to talk about to someone who wasn’t already in the know.

Yossi Cohen and former Prime Minister Benjamin Netanyahu in 2021.Credit: Amos Ben Gershom / GPO

Cohen, they charged, caused “real damage to Israel’s security,” and the censor’s approval doesn’t “rectify the flaw of divulging classified information without authorization and/or information obtained by a civil servant due to his job,” and therefore doesn’t “rule out the commission of a criminal offense.” A former Mossad official was also initially signed on the petition, but he later withdrew.

In the June 2021 interview, Cohen said that operations in Iran were carried out by “a Mossad operational team” whose members speak “foreign languages.” Based on the questions and answers, as well as on Cohen’s body language and satisfied smiles, one could easily figure out that the “operational team” that conducted the daring operation to steal the nuclear archives on January 31, 2018 was comprised of non-Israelis. Even before the Uvda program I called them the “the international brigade” of the Mossad.

This unit or operational infrastructure has apparently continued conducting operations in Iran in recent years, including assassinations, sabotage and abductions of senior officials in Iranian intelligence, the Iranian Revolutionary Guards and the Quds Force.

Justices Noam Sohlberg, David Mintz and Khaled Kabub rejected the petition unanimously. “When the party divulging the information is the Mossad director, who is responsible for information security at the Mossad, and given that the censor didn’t see fit to restrict publication of the information,” Sohlberg wrote for the court, “I’m not convinced that the case before us is among those rare and exceptional cases in which the court would intervene in an attorney general’s decision not to open an investigation.”

In other words, the law authorizes the Mossad director to decide on his own which classified information possessed by the organization can be published. Consequently, no crime was committed.

Yossi Langotsky.Credit: Ofer Vaknin

The chances of this petition succeeding were always near zero. Precedent shows that the High Court rarely intervenes in an attorney general’s decisions on criminal cases and usually refrains from ordering the police to open investigations. And on security issues, the High Court generally serves a rubber stamp for the defense establishment’s positions and refrains from challenging its judgment.

Nevertheless, the court also addressed the broader issue of “chatter” by senior defense officials and stressed that they, like intelligence officials, are obligated to maintain the secrecy of the information in their possession even after they retire. It also said that the heads of the defense establishment, including the Mossad chief, aren’t “the owners of the information,” but public servants bound by confidentiality requirements.

“Even the heads of the defense agencies – the Mossad, the Shin Bet security service and the Israel Defense Forces – are public emissaries that derive their power and their vitality from the precious trust the public (via its Knesset representatives) has placed in them,” the justices wrote. “Thus the classified information that reached them in the framework of their jobs isn’t their private information, but information that belongs to the public. They aren’t ‘the owners of the information.’

“It’s not inconceivable that in extreme cases, in which it turns out that information was divulged for extraneous reasons while dealing a mortal blow to vital interests, it would be possible to say that this was done without authorization, and it would be possible to take action on the criminal level in any case,” they added.

The state was represented in the proceedings by attorneys Meital Buchman Schindel and Avigdor Klagsbald. The court charged the state 5,000 shekels ($1,500) in court costs.

In this photo released by the Atomic Energy Organization of Iran, technicians work at the Arak heavy water reactor's secondary circuit, in 2019.Credit: AP

The secrets of former officials

This isn’t the first time the question of who is authorized to divulge classified information has come up for public debate. In the so-called Harpaz affair a decade ago, allegations were made that then-IDF Chief of Staff Gabi Ashkenazi had given journalists classified information about Iran. Similar allegations were made about then-Defense Minister Ehud Barak, who had been interviewed for a book by journalists Ilan Kfir and Danny Dor.

The attorney general at that time, Mendelblit, appointed an interministerial task force headed by Dina Zilber, then the deputy state prosecutor, to study “the issue of senior defense officials transferring information to journalists, book publications and ghostwriters.” The goal was to prevent former officials from talking up past adventures and divulging secrets obtained through their work without authorization.

The committee’s report proposed a list of organizational, legal and explanatory steps. Among other things, it recommended reminding both serving senior officials and retired ones of the law’s provisions and their obligation to preserve secrets, taking action to recover documents from the hands of people not authorized to receive them, and trying to clarify the reciprocal relationships among the censor, the courts and the Defense Ministry unit in charge of information security.

The report also noted that the Defense Ministry used to have its own publishing house that published the memoirs of former officials.

One of the report’s more amusing recommendations was setting up “halls of fame” or “heritage sites” that would be closed to the public and open only to sitting and retired defense officials, so that the retirees wouldn’t reveal secrets in the media or in books. In other words, creating ways to massage retirees’ egos so they wouldn’t feel neglected and as if their work were devoid of meaning because of the obligation of secrecy.

The Zilber Report plunged into oblivion and was stashed in some bureaucratic drawer, a stone that will never be turned. It’s similarly unlikely that the justices’ comments in the current case will gain an attentive hearing and prevent the next senior official from revealing secrets. And even if he does reveal them, it’s safe to assume he won’t be punished.

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