I was just talking to Avner Cohen, who has been my magnetic north in parsing various aspects of this story. He pointed out a consideration for the gag order which I’d never thought of and it has great validity.
If the Israeli authorities realized that throwing the book at a young Israeli woman for espionage might be problematic for many reasons, and they feared the uproar that the news of her supposed perfidy (“spy,” “traitor,” etc.) would arouse in the right-wing press and among the political ‘hanging judges’ in the Knesset, they might’ve presented the gag to her as a means of removing the case and plea bargaining from the political realm. They might worry that once this story is widely known in far right nationalist circles, they will no longer have discretion to negotiate a lighter sentence for her. This may be why Kam and her attorneys have also seen it in their interest to attempt to enforce the gag on Israeli Hebrew language sources. It may also be why the gag is scheduled to end just before the beginning of her trial, so that there will be almost no overlap between a plea bargain agreement and the trial date. This would essentially present the public and especially the far right with a fait accompli (and certainly drive them crazy). We will see in the next few days whether the plea offered by the prosecutor is light or harsh. If it is relatively light, then we’ll know Avner is right.
The truth of the matter is (and these are now my views and not to be confused with Avner’s) that in a truly free-wheeling democracy in which there was a political equilibrium between left and right you should be able to put this story out there and let both sides have at it. In that free for all, a political consensus might emerge and a compromise approach might evolve which would find a way of addressing Kam’s alleged crime and punishment. But in Israel now, the far right is in such ascendancy that if the case was made public the political hatchet folk might have her locked up forever. “No punishment is good enough for her.” That sort of thing. It is the sad fact of contemporary Israel that Anat Kam may need to be protected from the baying hounds who would love to tear her limb from limb.
An Israeli journalist just sent me links to two new pieces published in Yediot Achronot and Seventh Eye about L’Affaire Kam. They’re more of the “wink-wink, nudge-nudge” variety which refuse to name names. But they’re still worth noting.
Israeli human rights lawyer Lila Margalit writes in the most important of the two pieces:
China, Burma, Iran–these are nations expert in the use of secret proceedings in their battle with opponents of the regime…In a democratic country, on the other hand, one of the clearest signs of a free government is that people are not judged in secret. They don’t disappear into secret prisons. They are not brought to justice through a process about whose existence the public doesn’t even know. It is the right of a person in a democratic state to have a public trial. This is a basic right understood a priori. This is one of the foundation stones on which is based the rule of law…
The principle of the public nature of proceedings serves as a major red line against government tyranny. It prevents the abuse of criminal proceedings for political purposes and guarantees transparency in regard to the considerations of the state in bringing an individual to justice. It enables the public to criticize in the conduct of criminal proceedings and acts as a constructive means of guaranteeing the authenticity of justice.
There are situations in which it is important to preserve secrecy during legal deliberations…But in this matter as in all that concern constraints upon human rights the principle of proportionality is the key…A sweeping black-out that extends over a prolonged period of time is not proportional. And the longer it lasts the more questions arise about the security considerations of the authorities…
Further, prolonged investigations conducted in absolute secrecy not only isolate the accused from society, but prevent a constructive public deliberation on the substance of the charges. And in this particular case, even the willingness of the accused to maintain silence doesn’t make the reptile kosher.
The preservation of the all the democratic and legal rights mentioned above protects all of us. Damaging them doesn’t only trample on the rights of one particular accused, but rather threatens us all.
I agree with Avner’s criticism of the piece as being too vague, basic, and unwilling to deal even with the generalities of the case. There is an Alice in Wonderland quality to all this, with even a human rights lawyer having to speak in round about fashion about a specific, egregious violation of Israeli democratic values. Even the greatest eloquence in such circumstances can’t hide the fact that the writer is crippled in an essential way.
The second piece in Seventh Eye lays out the Anat Kam story as if it was the Chad Gadya Passover song. It’s meant to be humorous and satirical at the same time. One element of it that made me chafe referred to me:
He who arrived at the report of JTA was connected to a blog which was the first (according to its claim) that exposed the story in the U.S.
“Claimed?” I realize that journalists who don’t personally know a particular blogger may feel it necessary to protect themselves in the event of error. But this smacks of condescension and annoys me as a serious blogger. Is it possible that Israeli journalists find it distressing that an American Jewish blogger could’ve exposed such a major Israeli story? If so, get over it. But also keep in mind that I couldn’t have exposed this story without the help of Israeli journalists and other insiders. It was a two-way street between Israel and Diaspora, between journalist and blogger. It’s the way good journalism should be practiced, but rarely is in the Israeli context.
I understand a Judith Miller piece may be coming out in The Daily Beast tomorrow. [UPDATE: The story is here.] Despite my misgivings about her overall politics, it’s a good sign that she is as disturbed as some of us are about the free speech-free press implications of this incident. We need allies to bring this story home to a wider public.