Supreme Court okays ACRI 'Prisoner X' findings

Judges allow NGOs to publish details of their filings dealing with the case of "Prisoner X," which has been kept under gag order.

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February 20, 2013 17:29
3 minute read.
ABC mock up of Ben Zygier passport.

Ben Zygier passport 370. (photo credit: ABC News)

 
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The Supreme Court on Tuesday night authorized the Association for Civil Rights in Israel to publicize the details of its motions over the past nearly three years dealing with the case of “Prisoner X,” legal proceedings that had been kept under a gag order until now.

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The details indicate that security officials briefed the judges from an early point in the affair, and the judges sided with their concerns that the case could pose a security risk if publicized.

According to ACRI, its chief legal council Dan Yakir first contacted the attorney-general about the issue in May 2010, following an article published on Ynet about an anonymous prisoner who was being held in solitary confinement at Ayalon Prison in Ramle. After a call from the military censor, the website quickly removed the article.

Yakir argued to the attorney-general that secret detentions and trials were undemocratic and violated the public’s rights to know.

On July 13, 2010, ACRI received a letter from an assistant to the attorney- general saying that the case was under a gag order. This appeared to indicate that the media was not notified when the gag order was issued, but only after the Ynet story ran.

The restrictions were particularly broad, including a ban on reporting that the gag order existed and on publishing any details printed about the case in the foreign press.



On Wednesday, ACRI said that in December 2010 it found out about the suicide of an unnamed prisoner in Ayalon Prison – something that which was also published on Ynet and then quickly removed – and filed a motion with the Central District Court asking to narrow the the gag order.

ACRI mentions a hearing it took part in in January 2011 at the Central District Court in Petah Tikva, which came after Haaretz and Yediot Aharonot filed a motion asking to lift the gag order. During the hearing, ACRI and the other applicants made their arguments, as did security officials, who presented details of the case.

Central District Court President Hila Gerstl rejected the motions of both ACRI and the newspapers, saying in her ruling that she had no doubt the matter was one of great sensitivity and that publication of “the case’s existence, the identity of the detainee, the conditions of his imprisonment, and the fact of his arrest – might harm the security of the state and its citizens.”

ACRI filed an appeal to the Supreme Court 10 days later, and a hearing was held on February 23, 2011. Officials from the security establishment gave Supreme Court President Dorit Beinisch and Justices Miriam Naor and Edna Arbel a comprehensive report on the affair during that hearing, according to ACRI.

Beinisch told ACRI lawyers at the hearing that an investigation was being conducted before a judge to determine the cause of the prisoner’s death and that his family had hired a lawyer who was taking part in the proceedings. Beinisch then recommended that ACRI withdraw the appeal.

Finally, on March 15, 2011, the Supreme Court ordered the withdrawal of the appeal and issued “a ruling that this case is not an appropriate framework for providing a judgment that can act as a guide regarding future gag orders,” ACRI said.

After the story was reported on Australian television last week, and “Prisoner X” was named as Australian- Israeli Ben Zygier, ACRI contacted Deputy Attorney-General Shai Nitzan, asking to publish details of Zygier’s arrest and death in custody.

Finally, on Tuesday night, the Supreme Court ruled that all details of the appeals process that it dealt with in the case of Prisoner X could be published.

Yakir said in the ACRI statement issued on Wednesday: “Even in cases where there is a justification for imposing a gag order and conducting a trial in camera, there is no accepting secret detentions and secret trials in a democratic country.

Courts cannot be used to rubber- stamp the requests of the security services. They must exercise their discretion independently in order to protect the public’s right to know and enable a minimum level of public review over the proceedings.

Government authorities in general, and the security services in particular, tend to conceal failures and oversights, and it falls to the courts to ensure that they do not use claims of national security to cover up abuses. Unfortunately, that is not how the courts operated in this case.”

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