Here, such a thing cannot happen. We do live in a liberal democracy, true, even if it is not a constitutional democracy. But our High Court of Justice takes the role of a watchdog keeping a sharp eye on the seal of the, as yet, unfinished Constitution. The spirit of the court’s rulings suggests that when it comes to human rights and liberties, it is in no rush to bow its head to any governmental power. The court takes account of both the public interest and individual rights.
Therefore I do not believe that such a scenario could be played out in a democracy like ours. I do not believe that in our country a citizen would be arrested for state security violations, and that an absolute gag order would be imposed on the very fact of the arrest.
Such a thing could not happen here. Perhaps there will be exceptions in severe espionage cases when it is necessary to expose a network of enemy moles which has penetrated a security service. But even then, the media embargo should be confined to a brief, limited, and pre-set period.
The very fact of the arrest of citizens, who have apparently transgressed the law by giving away state secrets, requires a great deal of transparency. I cannot imagine a situation in our liberal country in which a person will be held in custody for an extended period without the public being aware of the very arrest and the reasons for it.
There are no doubt circumstances which do justify a brief media ban, in order to finalise an investigation. But there is a wide gap between that and the comprehensive hiding away of a citizen’s arrest. Ours is a liberal democracy and people do not disappear here into facilities that do not appear on any maps. Nor do we have extended house arrest without the matter being disclosed. This is not Guantanamo, nor Lubyanka nor Tehran. This kind of scenario could not be played out here in the free spirit land of Twitter and Facebook.
No doubt there have been occasions when security agencies’ officials have approached judges in their chambers to request a comprehensive gag. But our judges are not rubber stamps. They delve deeply into the documentation provided and, if need be, they fearlessly stand up to the agencies and declare: enough!
And when the judges do sign up, we know that there is substance to the claims. I am therefore totally relaxed and comfortable about that even if they impose a temporary gag, especially when this involves an allegation of critical harm to the state’s security.
Who can appreciate better than judges the possible harm that a gag order can do to the accused, whether an elderly pensioner who has given his best years to the state, or a young woman who believed that by exposing a secret she would save the homeland? I am totally relaxed and comfortable, secure in the knowledge that our judges are no rubber stamps.
We can, however, recall the extended (a whole ten years) absolute gag order that was imposed on the arrest, trial, conviction and incarceration of Marcus Klingberg on charges of espionage for the Soviet Union. Klingberg, a medical doctor and professor of epidemiology who was head of the Biological Institute in Ness Ziona, disappeared one day (in 1983) without a trace. Even when it became known that he was serving a 20-year sentence for espionage, a total prohibition was imposed on the Israeli press not to reveal it. Even mentioning the existence of the man was forbidden. Klingberg was "the man who never was" for a whole decade.
But Klingberg’s extreme espionage case cannot be used as a basis for drawing conclusions about a routine leaking of information from the security forces. And even Klingberg’s case, severe as it was, did not justify the extreme way in which it was kept away from the public consciousness. Censorship of the case was so broad that you could not even mention his name in the Israeli media in a completely unrelated context. The intention was to totally wipe out his memory from our consciousness. True, this happened three decades ago, and today a recurrence is not possible. I'm sure that the defence establishment has drawn the lesson that the stain which stuck to it for making people disappear is not going to be wiped clean, but has become more conspicuous over the years.
Espionage cases continue to be tried behind closed doors, which must hamper the defence's ability to conduct its case properly (not having the ability to sight all the evidence, for example), but at least there is no gag on the very existence of the trial, and even the worst spies have been exposed to public scrutiny once the interrogation has been completed.
We are a liberal democracy – even the worst criminals and traitors are entitled to a public trial. Their legal team can be publicly vocal, at least in terms of the conditions of their detention. They can also publicly raise the prosecution’s conduct in the case as it is acting in the state’s name. Therefore I do not believe those who argue that right here and now, a person may altogether disappear because of allegations of security breaches, especially once the person’s trial has begun.
We are one of the world's most sophisticated democracies. And we have an unhindered and refined legal system. It is clear to all that the purpose of these legal proceedings is to protect ourselves from people who take the law into their own hands, and we wholeheartedly believe that our system is not vindictive nor is devised to strike fear into the accused. Furthermore, our system is not meant to teach the offender a lesson he won’t forget beyond the court’s verdicts.
It is palpably obvious to us that the defence establishment respects the courts. Once a prisoner suspected of giving away classified information is released after serving his sentence, the system lets him live his life, not chasing him, nor trying to erase the (obsolete) knowledge stored in his mind for fear of further leaks.
None of our most famous cases of espionage and treason -- those of Mordechai Vanunu, Israel Baer, Shabtai Kalmanovich and Nahum Manbar were held under a total gag order. Even if a spy like Marcus Klingberg were to be exposed today, I don’t believe that it would be possible to conceal his trial as happened at the beginning of the ‘eighties. I therefore don’t believe those stories and rumours that such a thing is indeed occurring.
There have indeed been cases in which even a defence establishment as splendid as our own has stumbled trying to attribute far-reaching malicious intentions to people who made classified information public. But the attempt to set up Brigadier-General Yitzhak (Yatzeh) Yaakov fell flat on its face. The court refused to accept the State’s contention that Yaakov was a spy. It ruled that the distinguished officer with so many achievements did not intend to harm state security and he was convicted of the relatively mild offence of disclosing secret information without authority.
After 15 months of detention and house arrest (in a motel), Yaakov was sentenced to two years' probation and released immediately. This provides me with another reason why I cannot conceive of the same defence establishment failing again in attributing far-reaching malevolent intentions to people suspected of exposing classified information.
For all these reasons, I do not believe a scenario like that can be played out here. I do not believe that a citizen can be arrested and tried for suspected security offences right under our noses without anyone knowing anything about it.
I do not believe that a total gag order has been imposed not only on the prolonged detention, but on the trial that followed. Unquestionably these are only malicious rumours that are doing the rounds on the Net.
I do not believe that here, in the Town Square, between the Arts Centre and the Hall of Justice, where the public trust in the transparency of the judicial process is embodied, the trial of an anonymous person is taking place behind closed doors even if across the road the Defence Towers are looking down on the Hall of Justice.
This does not seem logical, nor could it possibly be so. This is undoubtedly a baseless rumour, and anyone contending otherwise is trying to besmirch both our justice system and the defence establishment.
Trials do not take place here in darkened dungeons, nor do we have show trials behind glass or chicken wire. I have no doubt that such a strange, terrible and baseless scenario cannot take place in such a sophisticated democracy as our own.
Hanoch Marmari is a former Editor of Haaretz. Originally published by the Seventh Eye. Translated by Sol Salbe of the Middle East News Service in Melbourne, Australia.