As the Military Censor has become more liberal, authorities have turned to gag orders as a convenient alternative for controling the dissemination of information.
Over the past 15 years, the number of gag orders issued in Israel has more than tripled. But that is only a rough estimate because no state body actually monitors them.
Noa Landau, the former news editor of Haaretz newspaper and currently a fellow at the Reuters Institute for the Study of Journalism at the University of Oxford, has submitted a freedom of information request to the courts’ directorate and the answer she received consisted only of the number of requests for gag orders that have been submitted over the last five years. It did not specify how many of them have been upheld, fully or partially, what kind of information was gagged (the defendant’s name, the charges, the mere fact that an investigation was ongoing?), who submitted the requests, etc.
A similar freedom of information request was submitted to the Justice Ministry, which said in response that it is unable to provide relevant information. Israel Police and the Israel Defense Forces have yet to respond. Even if they do, the data will be incomplete, because private individuals are also entitled to request gag orders, as well as the Shin Bet domestic intelligence agency, which is not bound by the Freedom of Information Act. What’s more, the army has its own judicial system which is also authorized to issue gag orders (as it has done in the recent case of the Hebron shooter, Sgt. Elor Azaria).
Upward and onward
According to the figures revealed by Landau, 231 requests were submitted in 2015, as opposed to 186 in 2011 (more than a 20-percent increase). The proportion of the requests that have actually been upheld remains unknown, but the legal experts and journalists that she sampled were hard pressed to think of an instance where a request for a gag order has been rejected. Also, the number of gag orders that newspapers received roughly corresponds to the number of requests.
In 2004, the Seventh Eye media watchdog reported that in 2000-2001, the annual rate of gag orders stood at around 60, and climbed to 110 in 2003. These are based on data collected from the newspapers themselves, where the orders aren’t archived systematically. Be that as it may, in the space of a decade and a half, the number of requests almost quadrupled.
The reason for this spike is the tendency of the defense establishment to opt for gag orders as an effective tool to bypass the more lenient military censorship.
The direct effect is the stifling of an open debate on policy, which is increasingly unlikely to be reconsidered and altered. Every terror attack or deadly clash with Palestinians (including what seems to be a cold-blooded murder in Qalandiya) is immediately gagged, as was the now-notorious arrest of left-wing activist Ezra Nawi. And we are still reeling from the manipulative use of gag orders in the wake of the kidnapping of three teenage settlers in June 2014, which was used to justify a military operation against Palestinian masquerading as an attempt to locate them and save their lives.
Dr. Tehila Schwarz-Altschuler of the Israel Democracy Institute, who together with Dr. Guy Lurie is about to publish a report on classified intelligence in the digital age, concurs with the criticism.
“Gag orders have become a more attractive option as the jurisdiction of the military censorship was eroded by the High Court of Justice,” she says.
“On the surface, it’s better that the courts decide on these matters and not the censor, but the system finds ways to bypass that. For example, sometimes an investigation is launched for no reason other than telling the court that there’s an open investigation that can be protected only by a gag order.”
The authors of the report recommend a complete overhaul of the policing of information in Israel. Currently, it is regulated in three ways: The Military Censor, gag orders and espionage laws (that sometimes apply to journalists as well). They say that in the event that the Military Censor is abolished, courts should be allowed to issue gag orders based on security grounds, as long as a separate information court is established, where the hearings will be held.
They also recommend limiting gag orders to 24 hours – with an extension possible only in the presence of a representative of the Press Council.
This article was first published in Hebrew on Local Call. Read it here.