Secret Agents and the Rule of Law

Haim Watzman

Doing press for even the nicest Western secret internal security agency would be a job from hell. Even the best-intentioned, humanist secret security agents must do a lot of unpalatable things to keep the citizens of their countries safe and happy. So when I, an Israeli citizen, criticize the Israel Security Agency (which is what the organization otherwise known as the Shin Bet, Shabak, or General Security Service calls itself on its website) I do so with due gratitude for the benefits I derive from their work.

But when the ISA publishes, on its Hebrew home page, an accusation equating document-leaking with espionage, and making out like it, unlike (ick!) newspaper reporters, is concerned only with the security of the state, then it’s time to say, hey guys, your horse ain’t as high as you think.

Yes, ISA agents are self-sacrificing patriots. But the agency’s record is certainly not pure white innocence. Most famously, in the “Bus 300 Affair” the agency was caught covering up an illegal, immoral extrajudicial murder. Yes, the terrorist (who was subdued and presented no danger to the agents) deserved to die, but no, in a democracy we can’t have security personnel deciding who deserves to live and who to die.

Yes, the ISA must investigate when documents have been leaked from an army command office. And Anat Kam, who was a soldier when she copied the classified documents, will have to stand trial.

But if Kam was party to information that the army was operating illegally, in violation of an express ruling of Israel’s Supreme Court—which seems to be the case—then she, as a soldier, was duty-bound not to pass that over in silence. And by providing a journalist with the documents, she was most certainly not aiding Israel’s enemies.

There could hardly be a better textbook case of the press doing its duty as the watchdog of democracy. Democracy depends on the rule of law, and the rule of law means that even secret security agencies are subject to the law and the courts, no matter what their opinion of the laws made by legislators and the rulings made by judges. And the only power that can hold the secret agents to that obligation is the press.

So, yes, prosecute Kam for leaking (but not for espionage). But from the sound of it the army should commend her for uncovering illegal operations rather than jail her for spying. An army that obeys the law makes Israel stronger, not weaker.

6 thoughts on “Secret Agents and the Rule of Law”

  1. Thank you for the thoughtful blog.

    A few questions:

    1. Under what circumstances do you think that soldiers should share classified and/or secret documents with reporters? When should they not do so?

    2. To what extent can we rely on the IDF censor to make sure that all items really important for state security are kept secret? With that mechanism in place, can our young people in the IDF now feel free to share all secret documents with reporters?

    3. If a soldier becomes aware of wrongdoing within the IDF, are there any alternatives to keeping silent and seeking redress through the press?

    4. Consider please a case in which the same document both sheds light on an IDF wrongdoing and has implications for state security and/or the lives of other soldiers. On the one hand, it might be that the best or only way to end the wrongdoing is for a soldier to share the document with the press. At the same time I am wondering whether reporters have sufficient security measures in place to make sure that foreign espionage agencies will not be able to access documents in their possession. Do you have any information on this issue?

    Many thanks,

    Bruce

  2. Bruce —

    In response to your questions–we don’t know all the facts yet, and I think some of these questions remain open. What were Anat Kam’s motives–was she a selfless whistle-blower, or did she have her own future journalistic career in mind? Was she truly concerned about specific violations she saw, and if so did she try to work through the system to bring them to the attention of people who might have addressed them? These are all legitimate questions for investigation and for trial.

    But even if it turned out that Kam acted as she did only out of blatant self-interest and with total disregard for proper procedures, clearly her crime is not espionage or abetting the enemy.

    And it wouldn’t be wrong for a reporter to accept information from a self-interested source. Taking advantage of self-interest is a classic way for reporters (and Shabak agents) to get important information.

    Ha’aretz claims–and in fact the Shabak has not explicitly denied–that it complied with all proper procedures, not just submitting material to the censor but also canning a story that had already gone to press with the censor’s approval after receiving a request from the army (see http://haaretz.com/hasen/spages/1162071.html).

    The category “state secret” inevitably always includes two implicit subcategories: real state secrets and other things that shouldn’t be state secrets but which officials, politicians, and officers want to keep under wraps. It’s the state’s obligation to take the necessary steps to keep the former secret, and it’s the reporter’s obligation to do everything he can to ferret out the latter. It’s an adversarial system and like all such systems it’s imperfect. But it’s the best guarantee of democracy and the rule of law yet devised.

  3. If, as Haim Watzman says, Kam disclosed information showing that the army was acting against an explicit ruling of the Israeli Supreme Court, I would argue that the State has tainted hands and cannot prosecute. In Anglo common law, when an individual has acted wrongly in the case at hand, s/he cannot approach the Bench for relief. The forbidden fruits doctrine of the American Supreme Court (although rolled back somewhat in the past decade or so) is an extension of this common law rule. Whatever damage Kam has done is–done. Silencing her with penalty after the fact would merely discourage others from “whistle blowing.” I think, again, if Haim is right that an explicit High Court order was being violated, that the army should be denied criminal relief; in consequence, perhaps, it will both trickle its information more securely and hesitate before violating its High Court again.

  4. Kam should have taken her proof to the Attorney General, or to the court itself, or passed it on to an attorney, who as an officer of the court would have done the same on her behalf. Working this way, she would have served her country, not violated laws and allowed the judicial process to work. Going to the press was the wrong way to handle it to start. She didn’t give the system a change to correct itself.

  5. I am an outsider to your state and survival, so what I say is said too safely. But I will say anyway that once the State violates its own law it cannot choose the consequence. It may be that going to the Attorney General or to the Court itself would have worked (I doubt the former, though, in a State under perpetual high military readiness). But these should haves do not remove the State’s taint and, I would say, do not incriminate Kam independently of the leak charge–the latter, I have already argued being barred by the State’s tainted hands. Not knowing the direction of reply is of what the State should be warry. Kam chose an extra State entity, presumably, because she did not trust State contacts. If so, this tells us something, too.

  6. Anat Kamm is a citizen of the world, not the criminal zionist entity. It is my hope that Ms Kamm and Mr Blau defect to Iran and obtain Iranian protection. Then their data can be exposed to the sanitizing effect of sunlight and the IOF can be truly exposed as the SS of the 21st century

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