Thanks to some sterling unnamed Israeli sources, I’m displaying both the original April 22nd gag order signed by Judge Einat Ron against Ameer Makhoul and the May 10th decision (pdf) partially lifting the gag order. As far as I know these documents have not yet been published in Israel [correction: the May 10th decision is not secret and has been published at 7th Eye & quoted in several Israeli papers; the April 22nd gag order has not been published and was secret till now]. I hope they now will be by courageous journalists (perhaps unlikely) and bloggers (more likely). Discussion has begun within the Israeli press about the efficacy of such use of secret proceedings. I hope these documents may contribute to that process. There is absolutely no justification in this case or so many like them for using such draconian measures against citizens exercising their legal rights to express their political views within an alleged democracy.
I thank Dena Shunra and Moshe Neeman (Israeli Occupation Archive) for their help in translating the following documents. First is the April 22nd gag order submitted by the police to Judge Ron and excerpted:
1. The Israel Police is conducting an investigation which involved suspicions of security crimes regarding contact with a foreign agent and espionage, under titles 114(i), 112(i) of the Penal Code 5737-1977 are being investigated.
2. Any publication about the investigation or any detail being investigated could harm the security of the state, the investigation, obstruct and prevent the discovery of evidence for the proof of criminal offenses and establishing the facts.
In light of all of the above, we ask the Court to hold the hearing behind closed doors and that an order prohibiting publicasion be given for a period of 90 days, which would prohibit any publication about the investigation…as well as any of the details of the investigation or the fact of its existence and any hearing and court decisions heard in the past or to be heard in the future about the subject being investigated.
Additionally, we ask that the order direct a ban on publicizing the fact that this petition was filed, the content thereof, the fact of the existence of the order, and any other publication which could lead to the identification of the respondent, witnesses, and additional suspects and persons involved…to the publication of their pictures, their addresses, or any other identifying detail.
In order to permit the enforcement of the order we ask for authorization to make known the fact of its existence to the various media, as necessary, for their information only (without publication by the media that there is an order banning the publication of a security affair.)
[Police] Superintendent Saar Shapira
Judge Ron notes her approval of the order at the bottom of the document. By the way, it was submitted the same day she approved it. If you’re a lawyer you’ve never heard of such expeditiousness in a court, where cases normally take months or even years before decisions are rendered. She interestingly approves the order for 30 days rather than the 90 requested by the police. I presume even she feels she has to show a measure of “toughness” so as not to appear the pushover she is.
Here is Judge Ron’s approval:
Having heard the representatives of the petitioner and been persuaded that publication of the affair at this stage could materially harm the security of the state and of the investigation, I find that [it is appropriate to] grant the petition – as made.
Note that the document does not offer any specific evidence to the judge nor do her notes indicate that she has seen any. In other words, she has either granted the request without proof; or she has seen proof but declined to even indicate she has. Since she does not say the latter we can only assume she hasn’t seen any evidence. So how can she justify the claim that the suspects damaged the security of the state or that suppression of news about their case can be justified on such grounds?
Here are excerpts from the May 10th decision partially lifting the gag order. Note a few things. First, she clearly confirms that the exposure of the gag here, in Facebook, and other websites renders the gag obsolete. Second, she lifts the gag only partially and in a very limited way. Signficant details are still under wraps. For example, Haaretz for a few minutes published on its website the name of the Lebanese individual Makhoul and Said met with who is alleged to belong to Hezbollah. That information is still under seal along with much else:
…Significant developments have occurred in this case: suspects were arrested and apparently, as often happens in such cases, there were repercussions, and as the gag order does not apply outside of Israel, most of the repercussions of this case were heard in foreign sources and publications abroad.
It will be stressed here that the reasons for handing down a gag order or reducing or removing such an order do not take into account the foreign publications, abroad. As is well known, with the development of technology nowadays such publication cannot be prevented, despite the existence of the order prohibiting them – and especially, such publications cannot be prevented outside of the State of Israel. However, simultaneously, it is clear that this cannot lead to a condition where no gag orders would be issued at all when there is great risk of both damage to the security of the state and material damage to the needs of the investigation, which is sensitive, complex, and has many ramifications.
The considerations for issuing the order will always reflect the issue specifically, and due to those tests mentioned and stated above, taking into consideration the limitation mentioned and knowing that publication in foreign sources does not necessarily verify the information published and cannot confirm that such information is true.
[…] In light of these developments it is possible to narrow the gag order handed down in this case as follows:
Ameer Makhoul of Haifa, born in 1958, was arrested on 6 May 2010 on suspicions of having had contact with a foreign agent […] and espionage [penal code titles omitted]
Omar Said of Kafr Kana, born in 1960, was arrested on 24 April 2010 [same suspicions, code refs]
Under the suspicions mentioned above, the alleged crimes of both suspects were carried out with the Hizballah organization.
The gag remains in force on all details excepting the above until 21 May 2010.
I would very much like to know who they met with and what, if any, connection to Hezbollah this individual has. Of course, I’d also like to know specifically what they discussed. The Shin Bet knows all this and until they provide any supporting evidence their case remains suspect.
I’m also featuring above the first TV news coverage of the Makhoul-Said arrest which includes excellent and disturbing interviews with Makhoul’s wife describing the abuse to which she was subjected by Israel’s intrepid secret police.