anat kamm court 311.
(photo credit: Ben Hartman)
Each time a new security affair is exposed here, raising disturbing questions
about the extent to which the public’s right to know is protected these days, I
console myself with the thought that despite all the particular difficulties and
challenges we face, there are still some basic things I can be sure of.
can be sure that there are no secret arrests or trials, since such things so
acutely threaten the foundations of the rule of law as well as public confidence
in the justice system that they are simply not acceptable in a free and
I can be sure that once a person is arrested – and
certainly once he stands trial – under no circumstances will his arrest or
imprisonment be shrouded in secrecy, entirely hidden from the public. True,
there are exceptional cases where limited secrecy may be justified for a short
period, but it is clearly unthinkable for a total blackout to last for years, as
an individual is tried, convicted and eventually imprisoned.
TRUE, IN the
distant past, several strange episodes were cloaked in total secrecy. The
convicted spy Marcus Klingberg was incarcerated for years without anyone knowing
about it, and even his family cooperated by hiding his arrest and telling the
neighbors all kinds of stories about trips abroad and such. But those affairs
were the stuff of other times, practically premodern, when the “security”
justification was always a winning card, trumping all other considerations.
After all, things have changed since then. Of that I am sure.
recently some problematic cases were revealed, involving arrests and proceedings
that took place far from the public eye – Anat Kamm, Ameer Makhoul, Omar Said
and Shirin Issawi to name a few.
But these troublesome cases aroused a
strong public response precisely because in the end, I am sure, a democratic
country cannot tolerate gag orders forever.
In our democratic society,
security and law enforcement agencies serve the public good. Even when necessary
security considerations require confidentiality for a short period, the
democratic and free public will always demand accountability.
which review state decisions with extreme care and are well aware of
role as guardians of constitutional democracy, may allow a blackout for a
limited time, but only in the face of exceptionally worthy
as the need to allow the completion of investigations or to protect
If, on the other hand, the state were to try to curtail
or conceal information for dubious reasons, like a desire to maintain
morale,” it would undoubtedly be thrown out of the court. This indeed
when prosecutors tried to impose restrictions on demonstrators against
Cast Lead, arguing that they were needed to protect “the morale of the
In an important decision, Judge Ido Druyan rejected this
argument outright, emphasizing that “a claim such as ‘damaging morale’
better not heard between the walls of a court in a democratic country.”
it is hard to think of anything more foreign to a democratic state than
attempt to hide information from the public in order to influence public
or “shape” it somehow from above. As the Supreme Court stressed back in
“government that takes upon itself the authority to decide what is good
citizens to know ends up deciding what is good for citizens to think;
no greater contradiction than this to a true democracy, which is not
from above.’” Free, incisive and thorough debate is the secret to the
a free society, and is made possible only when the public knows what’s
and what is being done in its name. Without these protections, we
very process of democratic decisionmaking which forms the foundation of
An ignorant public is not only odious to democracy but a
to national security – an internal hazard no less dangerous than any
Of this I am sure.The writer is the attorney for criminal
justice at the Association for Civil Rights in Israel. This article was
originally published in Hebrew on the Seventh Eye, www.the7eye.org.il