'Prisoner X' case strains Israelis' longtime acceptance of censorship

In the days after Israel partially acknowledged a report that it secretly jailed an Australian-Israeli main who later died in prison, there is doubt about the censorship powers that enabled the government to stifle the Israeli media until yesterday.

The decades-old sense that the Jewish state is under a constant existential threat has created tolerance of formal limits on press freedoms, but the sense among many Israelis is that in this case authorities have gone too far, and that such a blackout is not practical, let alone possible, with the advent of online journalism.

An investigation by the Australian Broadcasting Corporation into the 2010 disappearance and death of 34-year-old Ben Zygier suggested the Australian joined the Mossad after immigrating to Israel, but that something must have gone wrong with his service. In the hours after the initial publication of the report, Israel’s Prime Minister's Office made the rare move of calling in the editors-in-chief of major domestic news outlets to encourage them to uphold a blackout on the Australian report.

The prime minister’s office was backed by a sweeping gag order from a court in force since the original arrest, but the move backfired as Israelis shared details of foreign accounts of the fate of so-called ‘‘Prisoner X’’ on social networks -- or simply browsed foreign news sites. The dissonance highlighted the seemingly outmoded application of censorship powers in the new media era, and suggested that Israel’s government had overstepped by keeping the case under wraps for years.

"I truly thought that this kind of thing doesn’t happen here. Someone was arrested, interrogated, charged … and then he killed himself, and then it was held secret with a gag order," said Michael Sfard, a prominent Israeli civil rights lawyer. "They tried to make Israel into Albania, a place where people shouldn’t know what is known to the international community.’’

Israel’s history of military censorship is rooted in powers assumed by the British Mandatory authorities, which first declared a "state of emergency’’ that has been kept in place, uninterrupted, since Israel’s establishment in 1948. 

Israel is one of the only democracies to subject its press to a military censor office, but the practice had been relatively accepted as a necessity in its early years because of a sense the country was constantly under attack. That said, the military’s authority to strike out information was drastically scaled back by the Supreme Court in 1989. The ruling required the censor to show an objectively imminent and real threat to national security in disqualifying information for publication, rather than a vague reference to national security considerations.

Citing "foreign media sources" has been a common workaround for journalists when censorship is invoked or the government imposes an internal gag order on officials, and it has generally been tolerated by Israeli authorities. But when the government this week pressed Israeli websites to take down initial reports of the ABC television report and revived an antiquated practice of calling in editors to share state secrets in return for a blackout, their efforts only fanned the firestorm.

"[Mossad director Tamir] Pardo and his friend believe that if they only press harder, the door will remain closed," wrote Aluf Benn, editor-in-chief of the left-leaning newspaper Haaretz. "Meanwhile, on Facebook, on Instagram, and Twitter, everyone is sharing the information, forwarding links, expressing opinions, and cracking jokes.’’

The government eased the gag order Wednesday morning to allow Israeli news organizations to use the material from the ABC investigation. Then, later that night, it released a six-paragraph statement from a deputy district attorney, confirming that an Israeli dual citizen who was incarcerated and died in jail was kept under a veil of secrecy for "state security considerations."

The government said that the investigation into the prisoner's death determined that the cause of death was suicide and that the possibility of negligence was being investigated, but it didn’t identify Mr. Zygier or his nationality. The gag rule, although narrowed, remains in effect.  

Israeli media expert Tehilla Shwartz Altshuler said that in recent years, security authorities have been making increasingly routine court appeals for gag orders to prevent publication of sensitive cases. Several years ago, security authorities used such an order to blackout the arrest of a young journalist, Anat Kam, who had leaked military documents during her army service. But word of her arrest came out within weeks.

Limited gag orders are justified if they aid an ongoing investigation or protect an individual’s identity in a domestic abuse case but the open-ended gag order in Zygier's case went too far, Ms. Shwartz Altshuler, a fellow at the Israel Democracy Institute, says.

"In the 21st century, in a normal democracy, values such as transparency should be cherished more," she said. "The gag order is a sophisticated way to bury information underground."

In light of the state attorney's disclosure yesterday that Israel’s Supreme Court defended the gag order against challenges by civil liberties groups, journalists and lawyers are now asking whether Israel’s justices are too deferential to top ranking security officers who cite threats to national security when requesting gag orders, or are not knowledgeable enough to push back.

"I wouldn’t say they are a rubber stamp. But I wouldn’t say they are open-minded toward the media and that they take all factors into consideration," said Israeli lawyer Bibi Mozer in an interview with Israel Radio. "Often we encounter an approach that says: the experts told us what they did and persuaded us."

When the government persuaded the news outlets to take reports of the ABC story off their websites, Israeli parliamentarians used their immunity from prosecution to ask questions about "Prisoner X" while Israel’s justice minister was addressing the legislature on Feb. 12. That on-camera grilling helped newspaper editors keep the story on the front pages, and bypass the court order.

But some experts suggested that Israel’s normally aggressive media did not do enough to challenge the gag order while it was in place. Many news chiefs were informed of the gag order and complied, says Shwartz Altshuler.

"For almost three years no one dared talk about this story,’’ she says. ‘‘How come the Israeli media sat here and waited for an Australian television station?’’