After more than a year and a half of exhausting legal proceedings, the High Court of Justice made a decision this week that could set a historical precedent: It ordered the government to explain why it still refuses to release the protocols of ministerial discussions about the coronavirus crisis.
But the real importance of this decision, which was issued in response to a petition by Haaretz, has nothing to do with the release of the specific protocols relating to the coronavirus. Rather, it lies in a more fundamental demand by Supreme Court President Esther Hayut and Justices Isaac Amit and George Karra – that the state explain its refusal to repeal the articles in the cabinet bylaws that let it sweepingly classify all protocols of cabinet meetings and ministerial committees as top secret.
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These two articles, 14 and 71, have for years led to all protocols of ministerial discussions being automatically buried in the archives for 30 years or more, regardless of the content and circumstances of these discussions. This is diametrically opposed to the Basic Law on Government, which defines a specific list of classified issues.
Which cabinet discussions are defined by law as classified today? Unsurprisingly, national security and foreign relations. The topics that aren’t defined as classified include wholly civilian issues, like a lethal virus that has no ears with which to eavesdrop on reports of these discussions.
Admittedly, the law also allows the government to define other matters as classified if needed, but only if it declares them classified in advance through a cabinet resolution or government directive.
In other words, the law never allowed ministers to automatically conceal all their discussions, in every forum and on every issue, for decades. It only allowed them to conceal matters that genuinely deserved to remain hidden, and even then only if they gave the reasons for this decision.
Currently, the burden of proof for the need for publication and transparency rests on the public instead of the burden of proof for the need for concealment resting on the government. Consequently, these provisions of the cabinet bylaws blatantly contradict the spirit of the law. Yet, this is the first time they are seriously being challenged.
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Contrary to the argument often made against the demand for increased transparency – surprisingly, even by journalists like my colleague Nehemia Shtrasler, despite the fact that the desire for transparency is supposed to be journalists’ guiding light – the demand to prevent sweeping a priori concealment of all cabinet discussions in no way prevents the government from protecting genuine state secrets or holding substantive discussions. Indeed, the opposite is true.
The government will always still be able to define truly secret discussions as classified. It’s even safe to predict, based on past precedent, that it will find ways to do so more often and on a larger scale than necessary, and will even find a willing ear in the courts for doing so.
The argument against transparency also conflicts with reality when it comes to substantive debate. From my experience in covering cabinet debates, the power currently rests with self-interested leakers, who in any case make public anything that serves them or undermines their rivals. Journalists, researchers and experts have no way of accurately verifying what really happened there from any official source.
For some journalists, this is actually quite convenient. There’s nothing like a quote from a “closed” meeting to fill one’s quota of scoops, and if there’s a recording, that’s even better. The result is that instead of reliable, comprehensive information, we get political spin from every possible direction. And instead of substantive debate, we get a circus of anonymous quotes and disinformation.
Cabinet discussions aren’t like discussions at the Bank of Israel. In darkness, our politicians aren’t freed from populist pressures in the least, because they’ll leak things about each other and about the professional staff. The only thing they’re freed from is the critical gaze of the public, which receives only partial information that’s often of marginal importance, sometimes truly trivial, instead of getting the full picture.
Concealment never serves the public. It only serves the centers of power, which benefit from exclusive control over the flow of information.