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Israel's Wikileaks: Was plea bargain a trap for Haaretz reporter?

(updated below)

In the hail of news report on the escalation on the Israel-Gaza front and the Jerusalem bombing, a key development has gone all but unnoticed by world media. On Thursday, Haaretz reported “with regret” that the Justice Ministry decided to charge one of the paper’s star reporters, Uri Blau, with “holding classified information without authorization, but “without intention to harm the security of the state.” The indictment is pending a personal hearing with Yehuda Weinstein, the Attorney General; there is very little reason to assume Weinstein would stall the process.

The state’s decision turns the tables in the affair. Beforeת the official line had been that the only offence in the affair was that of Blau’s courageous source, Anat Kamm; the state knew, authorities implied, that Blau was merely doing his job and he was only wanted to help plug the leak. We now discover the investigation was originally directed not against the source, but against the journalist.

The decision to charge Blau also flies in the face of the extremely controversial agreement the state had blackmailed him into signing in exchange for being allowed to return to his homeland without an immediate arrest, although the same Haaretz report makes plain just what an extraordinary compromise it was on the journalist’s part.

To recap, Kamm, then a clerk in the office of then GOC Central Command Yair Naveh, delivered Blau a cache of nearly 2,000 documents, including some indicating Naveh was directly complicit in ordering the extrajudicial execution of two suspected Palestinian militants in 2006. It would appear Naveh not only consciously flouted a specific verdict by the Supreme Court against such moves, commonly referred to in Israel as targeted assassinations; this premeditated killing was later described as a botched arrest operation. Other documents revealed in the original report shows senior IDF officials discussing a quota for innocent victims if the assassination turns out to be a little less targeted than the euphemism suggests.

Blau published the details of this operation in a Haaretz magazine story in 2008; the specific documents he used were submitted and green-lighted by the military censorship, and after publication, he returned the documents to the military. After Kamm was arrested and admitted to leaking considerably more material, the state demanded he return all of the documents he received. Blau, who by that time was in hiding abroad fearing arrest, complied with the request through his lawyers, on the understanding he would be allowed to return home without being thrown in jail. The state instead decided to twist his arm to near breaking point (emphasis mine):

[Blau] then agreed to give over to the state all classified documents in his possession, including ones he did not acquire through Kamm, with the state promising to evaluate the damage their leak has caused, but to destroy them without trying to trace Blau’s sources.

So despite this unheard-of compromise – Blau actually being forced to turn over his entire archive to the state, relying on nothing but the military’s “promise” to respect the confidentiality of his sources – the state now decided that twisting Blau’s arm is not enough; using a yet-unproved claim Blau still retains some documents, the state appears to be determined that  this arm must now be broken.

In a remarkable career spanning just a decade, Blau broke new ground as an investigative journalist. Among dozens of other achievements, he exposed not only Naveh, but also the dubious fortunes of the children of Defense Minister Ehud Barak and Foreign Minister Avigdor Lieberman; both ran private consulting companies before retaking cabinet posts in 2009, both gave the companies to their children, in their early to mid-twenties; all of these children proved so talented in their father’s old jobs that the companies continued making millions, even as their founders and fathers of their CEOs occupied two of the loftiest positions in the state.

That very powerful figures have every reason to want to get back at Blau himself is clear enough. Yet this week’s move rings ominously for all of Blau’s colleagues. It is safe to assume that every journalist covering defense affairs in Israel since the state was founded has, at one point or another, “held classified information without authorization but without intention to harm the security of the state.” If Blau is charged, convicted and sent to prison, this will set a toxic precedent that may well pull the plug on investigative security affairs journalism in Israel.

But politically speaking, can the state just go and convict a leading journalist? Wouldn’t such a significant move itself need a legal and public precedent to go by? In its wisdom, and not without chilling elegance, the state already provided us with one. Blau’s source, Anat Kamm, has struck a plea bargain with the state just over a month ago; her sentencing hearings are due to start in two weeks and she will probably be sent to jail in the summer, just before the earliest reasonable time for Blau’s indictment to be served. The state agreed to drop all the charges against Kamm, except one. You guessed it: Holding classified information without authorization and without intention to harm the security of the state.

…In other words, here is one scenario that to me, at least, seems more than plausible. Kamm, who’s courage and determination are a separate story, will be sentenced and sent to prison in the summer, at least for a few years (the worse estimates speak of up to seven or nine); almost immediately, a campaign will begin casting her as a centrist patriot, who in the innocence of youth delivered some documents to Uri Blau. Instead of slapping her on the wrist and giving the documents back to the state, op-eds in Yisrael Hayom will whine, Blau went and made a career out of her mistake and out of state secrets. Surely, right-wing politicians will snarl, the least we can do is to convict him of the same offence?

Update I: In case you thought there was no intention to set a precedent with Blau’s indictment, the state conveniently admits that there was indeed. According to conservative Globes columnist Mati Golan, the state actually says so in so many words, with the lips of Deputy Attorney General, Raz Nezri. Emphasis mine:

“Just before the statement to the press was made, I got a phone call from Raz Nezri. He said he was calling me because I’ve written before about the problematics of not having Haaretz and [publisher] Shocken put on trial. Alongside the decision to try Blau, Nezri said, the Attorney General decided not to prosecute Haaretz. Why? Nezri confirmed “Haaretz acted inappropriately when it backed and sponsored Blau’s stay abroad”, but “we thought it was more correct to go for the precedent-setting move of prosecuting a journalist for retaining stolen documents, and not a move against Haaretz for obstruction of justice, which is a supposedly different and problematic offence.”

Incidentally, the Globes columnist writes this from the indefensible position that not only the whistleblower of a suspected crime and the journalist who picked up the report should go to trial, but so should the newspaper and the publisher; or, at the very least, the charges against the journalist should be dropped and the newspaper stand trial instead. The fact that all four – source, journalist, newspaper, publisher – were fulfilling their civic duty in exposing a violation of the state’s own law by a senior officer is completely absent from Golan’s take on the case. If this move against investigative journalism succeeds, it will be to no small degree thanks to the wilful complacency of journalists like Golan.
Update II: I should note that although the criminal suspicions against Naveh were underlined and upheld by some of Israel’s leading legal experts – Professors Mordechai Kremincer and David Krechmer, commentator Moshe Negbi and leading human rights attorney Michael Sfard – Naveh was never tried for the suspicions raised by the documents;  The Justice Ministry and the attorney general denied both in 2008 and more recently that any Supreme Court orders have been violated;  an appeal against Naveh’s potential appointment as chief-of-staff was rejected by the Supreme Court in December.  The Court, incidentally, did not address the question of whether or not Naveh violated its orders, but merely if he should not be appointed to the new post; it ruled that as then-Attorney General found that there had been no need to open a criminal investigation back in 2008, there was no room now to rule against the appointment now (crucially, the appeal was against the appointment, not to overturn the AG’s decision).
Update III: Regarding the value of the state’s promises, I was reminded by an old entry in Noam’s blog just how much these promises are worth:

After the [original] story was published, the army began an internal investigation to locate the source responsible for leaking the operative orders cited by Blau in Haaretz. At the same time, the Shabak demanded Haaretz to return the documents in order to avoid a national security breach. Haaretz and Blau agreed, on the condition that the documents will be used only for damage control, and not to locate the source for the story.

According to a reports in Israeli media (Hebrew) the state admitted today that the Shabak did use the documents to get to Kamm.

Correction 31/3: I reported here earlier the state’s excuse for prosecuting Blau was that he didn’t return all the documents. Although it’s certainly the impression created by the media reports quoted about, it was pointed out to me that the state’s accusations relate to earlier stages in the reporters’ bargaining with the authorities. Apparently, the state decided to prosecute Blau for ever having retained any classified documents, in any point in time, regardless of the negotiations –  which, of course, has even more worrying implications for his colleagues.

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    COMMENTS

    1. Sylvia

      Yet, it doesn’t pass the Buzaglo test. Or rather the Wanunu test. This is what should be emphasized.

      Another point that you – and Haaretz – understandably do not reveal is that the law had to be revised in their favor. The law now distinguishes between spying “in the ordinary sense” “with intent to harm the State” and spying “not in the ordinary sense” where intent is the eye of the beholder.
      The latter of course will let Kamm, Blau and Haaretz and their caste of yekkes practically off the hook.
      The notion that publishing classified information on the internet on a widely read website like Haaretz in broad daylight is not as serious a violation as just giving it to ONE journalist in the dark corner of a European pub (as Wanunu has done) is an insult to the intelligence and a total absurdity.
      It is specially designed to get Mitteleuropaischers and Arab Israelis off the hook.

      Reply to Comment
    2. Y.

      What a coincidence this version doesn’t mention that the Supreme Court and the Attorney General checked Blau’s publication and decided no felony was committed by the IDF, or that Kamm gave away many unrelated documents (making her version of events rather dubious), or that the state says Blau did not return all the documents. Oh well, I never expected to get actual reporting from +972.

      Reply to Comment
    3. directrob

      Y
      “the Supreme Court and the Attorney General checked Blau’s publication and decided no felony was committed by the IDF,”

      Not a very strong argument.
      Take the case of Omar Al-Qawasmy 65 shot in his bed while sleeping. They even had the wrong person.

      Or the case of Iman Darweesh Al Hams 13 and Captain R.

      Or the case of James Miller

      Very few soldiers end like Idier Wahid Taysir Hayb in jail. In the end 5 years for killing Thomas Hurndall. The rest walk free.

      Reply to Comment
    4. Y.

      directrob: You miss the point. Dimi and co. argue the IDF has violated the Supreme Court’s ruling[1]. Coincidently, the judges in that same court (and the AG) think the IDF did not. I just happen to think the court knows to interpret its own ruling much better than Dimi.

      [1] “It would appear Naveh not only consciously flaunted a specific verdict by the Supreme Court”

      Reply to Comment
    5. In the USA, Israel, etc., it is a crime to release materials which were kept secret ONLY to avoid embarrassment to a gov’t higher-up. Here, the higher-up appears to have broken Israel’s law, BUT would normally be effectively IMMUNE from Israeli prosecution due to the secrecy law. Blau, Kamm tried to correct that. They did NOT try to aid any enemy of Israel. (As far as I can see.)

      PS: Is the higher-up subject to prosecution NOW that the matter is public? Or is Israeli law made to be broken, like Palestinian bones under Rabin?

      ON ENGLISH LANGUAGE:

      You wrote: “would appear Naveh not only consciously flaunted a specific verdict by the Supreme Court against such moves,”

      If he “exhibited it ostentatiously or shamelessly” he FLAUNTED it. Here, it seems more likely he FLOUTED it, “treated it with contemptuous disregard”.

      Reply to Comment
    6. Leonid Levin

      Y, according to Dimi’s Update II, the Supreme Court “did not address the question of whether or not Naveh violated its orders”. And why should anyone trust the Justice Ministry and the AG on this issue?

      Reply to Comment
    7. Leonid Levin

      I regard Blau, Kamm, Wikileaks, etc. as heros. They publish classified information so that the public know what’s going on behind the scenes. I find that we have the right to know about the dealings of secret services, government, the army, etc. Because otherwise they could do as they please and be accountable to nobody.

      I agree with Pabelmont. This has been made into the criminal offence by those very people in power in order to preserve their power.

      Labor strikes were illegal in the early 1900’s, because factory owners had far more political power than workers. Yet those courageous workers defied the law, went on strikes, got arrested, so that we can now enjoy 8-hour work day, protection under the labor laws and many more rights unthinkable at the time.

      Reply to Comment
    8. guy

      Thank you Dimi for a very important piece. I am so saddenned that even Haaretz is being very low key about this.
      This is personally an attack on Uri and he is obviously more directly affected by it than anyone else.
      However, the larger picture here is very freightening. The blatant disregard for the most basic principles of the free press by all involved government officials, the law changes that were made to ease the prosecution of Uri Blau and the fact that all the media is “siding” with the government are all big nails in the coffin of free press in Israel.

      Reply to Comment
    9. Y.

      @Leonid: Well, it wasn’t there when I replied, and it seems like a formalistic distinction anyway. The court could have easily make its displeasure (if it exists) known, and nothing prevents Blau, Haaretz etc. from filing a suit if they thought they had a case (the court’s definition of ‘standing’ is rather loose). They could at least use it in Blau’s defence (‘defence via justice’ doctrine in Israeli law). That all those commentators do not seem to put their chips where their mouth is seems to indicate either they don’t believe their own case or that they’d rather sacrifice Blau and have a martyr…

      Reply to Comment
    10. Borg

      Ill trade a Blau and a Kamm for a Pollard

      Reply to Comment