Media Comment: Respect for the law?

Faced with the evidence, the attorney-general made the decision to charge the journalist with criminal action. He had been found to be in possession of stolen government documents. That is a felony, and, if convicted, he could be sent to jail. The formal charge in court was that the investigative reporter did “unlawfully receive, conceal and retain... government documents... and records, with intent to convert the said property to his own use or gain,” knowing the documents had been stolen.

Uri Blau, Israel, 2012? No, Les Whitten, 1973. And there were other cases, such as Thomas Drake, 2010, or James Risen, 2011. The United States government decided to prosecute all three for willful retention of national defense information or other security-related documents.

The first instance, of course, is not fully comparable. Whitten never went to court, his arrest was a result of a vengeful president and the documents were not security- or military- related. Another important element is that the US Constitution was amended to include a prohibition to abridge the freedom of the press.

Israel has no constitution.

Nevertheless, both cases are linked to the passionate debate over whether, how and to what extent journalistic privilege should be protected versus the issue of journalistic liability for violating the law. In this connection, the name Julian Assange could also be mentioned, or even Winston Churchill’s Regulation 2d during World War II, which severely limited the press.

The dilemma, which we also face in Israel, is: Should a journalist who acts in concert with a source who has stolen classified government documents, or who solicited the source to misappropriate classified documents, be immune from criminal prosecution? A secondary aspect of this debate in Israel is that the parameters of the debate and how it is being debated is being directed here mainly by other journalists, who understandably have quite a vested interest in the case.

What are the facts in this case? Attorney-General Yehuda Weinstein decided that Haaretz’s journalist Uri Blau will be charged with unauthorized possession of classified information, but not with intending to harm state security.

According to Weinstein, “the potential acquisition [of the documents] by hostile parties could have damaged the state’s security and endangered the lives of IDF soldiers... Possessing operational documents is entirely different from collecting journalistic data for publication in good faith.”

When it became known to the authorities that Blau was in possession of secret documents he was asked to return them. He provided 50 documents. His partner in crime, Anat Kamm, who is now serving time in jail for her part in the affair, testified that there had been 1,800 documents.

The attempt to force Blau and Haaretz to return the missing documents resulted in Blau fleeing the country. Blau violated an agreement he had signed, asserts the state, and had “given the authorities the false impression that he had turned over all the classified documents.” The counter-charge by journalists (not all) and their professional associations is that all this “calls into question its [Israel’s] status as a true democracy.”

Avi Benayahu, former IDF spokesman, ex-head of Army Radio and a veteran journalist, described the unfolding of the events in an Army Radio interview last Wednesday: “We approached journalist Blau.... He was told in my name that he holds secret material, that we have no interest in his sources, we don’t need the documents but are concerned that the material is in a private home and is not secure.”

Benayahu claimed that the army had offered to come to Blau’s home and destroy the documents in his presence. Blau claimed that he had already done this. Benayahu continued: “We found out that there were further documents. We suggested trashing the computer; it could all have ended there.”

Benayahu’s conclusion to this sordid affair was: “This is a black day for the Israeli press....[This was a] false employment of the concept of freedom of the press by journalists and editors.”

Benayahu’s voice was the exception to the rule. Former Supreme Court justice and president of the Journalists Association Dalia Dorner defended Blau: “It is not right to prosecute a journalist just because he was in possession of a secret document for the sake of carrying out his job. Journalists who deal in these cases [security issues]... hold documents in their possession even though formally this is a violation of the law.”

Dorner did not deny that it would seem Blau had violated the law, she only took the position that freedom of the press is, in this case, above the law.

Dorner’s position is not unique.

The majority of the press have taken the high moral road in defending Blau. Uzi Benziman from Haaretz considered this to be a “decision tinged by revenge.... What did Uri Blau do? ...he revealed problematic behavior with the IDF... the publicity angered the army... I see this as terrorizing the press.”

The attitude of IBA legal guru Moshe Negbi was also predictable: “From the point of view of the dry law, there is enough material to justify an indictment. But this is an antidemocratic paragraph which is being used undemocratically. ...Prosecuting him [Blau] harms the freedom of expression.”

The outrage of journalists knew few limits. The journalists demonstrated in front of the Justice Ministry, seemingly unaware of the severity of their actions. At the same time that they commend Prime Minister Binyamin Netanyahu for upholding the rule of law if he destroys the Givat Ulpana neighborhood, they demonstrate and defend a colleague who seemingly violated the law.

Don’t they understand that if they are allowed to violate the law in the name of a “freedom” which doesn’t have the same status as the law used to charge Blau, then everyone may be allowed to do the same? Don’t they understand that they are undermining the very foundations of the democratic state when they claim that there are some journalistic laws which one is allowed to violate in the name of democracy? One would hope that the attorney-general will not give in to their sectorial pressure and carry out his job as mandated by the law, and not by the press.

The authors are, respectively, vice chairman and chairman of Israel’s Media Watch, www.imw.org.il.