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.)
Signed,
[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.
Also, here’s a very good column by Brad Burston imaging what Israel would be like if it were run by the secret police (it isn’t of course, “Wink-wink nudge-nudge know what I mean?”).
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Amir Makhoul’s wife name is Janan and not Jarar
Israel has become notorious now for the knock in the middle of the night like used to happen in fascist, totalitarian states.
For many months now there have been many knocks in the middle of the night, and many arrests on trumped up charges. Many of these nightly arrests are happening in Bil’in and we all know why, but most have gotten very little attention. Children are also the victims of these nightly raids and arrests.
Israel is using the cloak of night to shroud this growing injustice.
richard,
isnt the fact that the article that you link to was able to be published in an israeli paper prove that israel is not a police state?
A police state is one in which the “police” and military can act against residents, at least sometimes, without effective court intervention. Knocks on the door at night, gag orders, civilians dying in demonstrations, suspension of Habeas Corpus, etc., qualify even if an article eventually gets published.
In the United States, police often act (sometimes with good intentions, sometimes not) in violation of the law. The problem is, that once you tolerate the good intentions, things spiral down to police-state status.
Hence most liberals and many conservatives in the US call for restricting police. Look at the recent Pulitzer Prize winning series (it’s at http://www.pulitzer.org) on how Philadelphia police shook down totally innocent small merchants and planted drug evidence all in the name of making Philadelphia safer … and its police richer (the series co-author, Wendy Ruderman, is a former student of mine). Police state, if you are among those affected directly.
Perhaps my latest on assaf.dailykos.com can help answer your question/comment.
Ask Brad Burston that question. He’s an Israeli & apparently disagrees with you. And I didn’t say Israel was a police state…yet.
One thing I can tell you was that the request was for 90 days and only 30 days were granted. That ends May 21.
Hooray. That means she’s a real tough judge & hard on the security forces, right?
Actually, she knew that just like I broke the Kamm gag that I’d break this one as well. She knew a 90 day gag would get her into the same laughingstock territory as she got into w. Kamm.
Someone else was arrested in the cover of night on Wednesday.
“At 12am, early Wednesday morning, the Israeli military invaded Bil’in village looking for Ashraf Abu Rahme. Ashraf had been arrested along with six other Palestinian, Israeli, and International activists (including Bil’in residents Haitham Al Katib and Waji Burnat) at a demonstration in Bil’in Friday afternoon. After searching three houses including his mother’s home and the unfinished house of his brother Bassem Abu Rahme (who was killed during a demonstration last year), they were unable to find Ashraf. This night invasion happened on the same day that B’tselem camera man Haitham Al Katib and Waji Burnat were released from Ofer Military Prison where they had been taken on Friday night after being arrested in Bil’in. The Israeli and International activists had been released the same day as the arrest. Apparently tonight the military was attempting to take Ashraf for further questioning with the Shin Bet Israeli intelligence.”
His brother was killed last year by a tear gas canister.
source: Mondoweiss
Correction: They arrested him last Friday, then released him later and went bank Wednesday “attempting” to arrest him again.
I’ve posted in another thread on this issue with the gag order.
To summarize it here, as a prosecutor, I find little remarkable about the Government asking a court for secrecy regarding an ongoing investigation and little remarkable about a judge granting the application without releasing specific reasons why. That’s routine, and the same thing would happen here in America. Prosecutors routinely make ex parte applications during ongoing investigations, including after people are arrested, and it is very rare for a judge to reject them.
It is also very common for prosecutors to rely on the same judges to grant these applications. Usually they will use experienced judges who have dealt with these issues before. For this kind of stuff, most judges are sympathetic, because no one wants to be the judge who compromised an ongoing national security investigation.
Asking for a gag order may be useless and silly, but it’s not anything mind-blowing in these circumstances.
As a journalist and former journalism professor, I see major limitations on gag orders in the US, as compared to Israel:
1. The EXISTENCE of a gag order is usually acknowledged in the US.
2. There are few gag orders for security reasons; usually they are to protect children or (becoming a rarity) to reduce chances of a contaminated jury pool and thus right to fair trial.
3. The gag order refers to officers of the court, who are liable — and not to journalists themselves except in the following instance:
4. Often, media outlets in the US agree to a gag order in exchange for being allowed to attend hearings, trials, etc.
In the 1970s, our government (specifically, the DOD and NRC) claimed that chemically reprocessing plutonium out of spent uranium reactor fuel and then fabricating it into bomb material was beyond the capabilities of all but a few countries. But DOD had commissioned a study on what technology sophistication level WOULD be needed. It turned out to be unsophisticated in the extreme — and do-able in a six-month timeframe as long as the safety of the workers doing the reprocessing was compromised. They hastily classified the document (which actually showed how to do the job, and directly contradicted public statements), but I got a copy — and published the information in a magazine.
I didn’t provide a lot of detail (like how long you could cook the uranium to get the right kind of plutonium) and I deliberately fuzzed some other things. But we gave enough detail so that people knew we had the report.
After publication, the FBI showed up in my office looking for the report itself. There was never a question of arresting any of us — we had not broken any laws. But they did not want the full report falling into undesirable hands. I exchanged the report (which we had guarded very carefully) for written acknowledgment that we had it. Alternatively, we would have accepted a formal subpoena (which itself is a written acknowledgement).
The world did not come to an end. To the contrary, the article helped kill a really stupid idea that was being seriously considered — a worldwide “plutonium economy” fed by breeder reactors.
In Israel, I think I would have simply disappeared and then been tried in secret.
Not true at all. I have no problem w. your making generalizations about a legal system in which you practice. But I do have problems w. your making generalizations about a legal system in which you do not practice, esp. when yr generalizations are unfounded. As I said it is routine for judges here in the U.S. to at least make reference to the face that they have seen evidence in making their decision even if that evidence may be secret or not otherwise revealed.
You don’t mean judge-shopping do you like the Shin Bet does at the Petah Tikvah court, which seems to be its favored venue due possibly to their being no Israeli Palestinian judges sitting there.
It goes way beyond “sympathy” for Israeli judges. It’s more like pliancy. Israeli justice when it comes to national security issues is almost non-existent w. the possible exception of a few Supreme Court rulings. Actually, no Israeli judge has the courage to buck the spooks period and no backbone either.
This judge did. She said she made her ruling after hearing from petitioners. That is the same thing as saying that she heard compelling reasons for why there should be a gag order.
Please substantiate the claim that Israeli prosecutors use the Petah Tikva court because there are no Arab judges there. In addition, I am offended by your implicit assertion that just because a judge is Jewish, he or she would automatically sign every application and I am also offended by your assertion that an Arab judge would automatically act differently.
Besides, if every Israeli judge is so pliable, why would there be a need to judge shop?
Perhaps it’s exactly as I say, that they use experienced judges who know the issues.
Please cite comparative jurisprudential studies supporting this argument. These studies should show that other democracies have “less pliable judges” on national security matters similar to the ones Israel faces.
israel is a military state which is worse than a police state.
linking to an article or articles proves very little except that jewry isnt yet interested.
is that reporter still hiding in london?
bombs still drop on innocents. police/soldiers still take. organs go missing. palestinian bodies-by-murder increase daily.
@editorsteve
I see what you are saying, though if a gag order is not acknowledged, you’re not going to know about it, are you?
I think the threat Israel faces from groups like Hizballah and Hamas is a little different than the threat of nuclear technology. Israel’s threat is more immediate and more direct.
But regardless, the issuance of a gag order in a national security case does not exactly mark Israel out as a police state.
I don’t think you would have disappeared under the circumstances you describe in Israel. You were not passing out vital state secrets to foreign countries like, say, Vanunu.
I’ve always regarded Vanunu as just confirming what was generally assumed — that Israel had a nuclear weapons program. The secret was already out of the bag, so to speak.
Look, I’m not unmindful of security issues — the FBI started a file on me in the 1960s, because I was communicating with Russian astronomers (on long-term period variations in variable stars), and I think the spying on my research was perfectly reasonable in context (although strictly speaking, the CIA could do it legally and the FBI could not).
But by 1970, the CIA was gathering domestic intelligence, at the height of student riots — and that was the FBI’s job. Also, I ended up with a CIA file because I was doing something lawful — circulating petitions to cut off funding for the Vietnam war by Senate vote — and the CIA was running the petition drive on my campus! Dumb… and wrong.
All this kept me (I think) from being offered a White House fellowship and it pushed me into journalism from my original intent to go to graduate school in physics/astronomy. But it did not keep me from doing classified weapons work on behalf of my country’s defense, in a sharply defined and focused short-term project in the late 1970s. Amusing irony.
But I’ve come to believe (especially after 20 teaching and reporting trips to the former Yugoslavia starting in 1997, and after work in The Hague) that where civilian deaths are involved there is a moral imperative to investigate fully and publicly. Gag orders are just… wrong.
Civilians are NOT fair game, not in ethics, not under international law. Targeting them is just wrong (for Israel, Hamas, the US in Pakistan… anyone) unless they directly threaten you as a soldier. In fact, targeting supposedly military targets with weapons that are notoriously inaccurate is also specifically not allowed, if civilians are endangered.
Mistakes will happen. But systematic policy allowing it is a war crime. It enhances the short-term (not long-term!) security and policy goals of civilians in one place at the expense of civilians in another. Why would G-d find that acceptable?