The Whistleblower’s Story and the Spiegel Report

Gershom Gorenberg

Even if cyberspace has no “here” or “there,” I found it difficult to blog at SouthJerusalem when I was physically far from Jerusalem. Now I’m catching up – first by posting what I’ve written for the American Prospect.

Here’s my piece on the Anat Kam controversy. Please pay attention to an important detail: The documents that Kam leaked included the Spiegel Report, the army data base detailing the land theft and lawbreaking in the building of settlements. Despite freedom-of-information requests, the army had refused to release this data. The information itself proves that there’s no security justification for keeping it secret.The information was simply a political embarrassment.

Now that the Tel Aviv District Court has lifted its gag order on the Anat Kam affair, Israelis don’t need foreign news sites to learn about the ex-soldier who allegedly leaked digitalized reams of classified documents to a reporter. That makes life easier for those whose English is weak, but the difference in public awareness probably isn’t significant. The gag order had already insured intense curiosity. What the increased access should do is stir a serious debate about balancing freedom of the press and whistleblowing with secrecy and security — a debate every democracy needs regularly. This kind of thing isn’t a problem in places like the states, where they have stringent whistleblowing laws so that people who want to speak out against corruption are able to protect themselves with a whistleblower lawyer. If only more countries were as progressive… With this being said, as laws tend to change, it wouldn’t hurt to stay on top of the news in the world of legal news. It could be as simple as researching attorneys and law for example to do just that. Plus, the more you know, the better this may be for you when it comes to understanding the law a little better.

What’s reliably known is this: Kam is 23. (In news photos, she looks 15 and terribly innocent — possibly an image designed by her lawyers.) During her required army service, she worked as a clerk in the office of Gen. Yair Naveh, then-head of the Israel Defense Force’s Central Command. When she completed her service, she took home CDs to which she had copied many classified documents. Later she passed information to Uri Blau, an investigative reporter for Ha’aretz, the Israeli daily that has been most ready to criticize government policy in the occupied territories. In November 2008, using some of Kam’s material, Blau published a long article titled “License to Kill.” It alleged that the IDF had deliberately ignored an Israeli Supreme Court ruling that barred targeted killing of suspected terrorists when it was possible to arrest them. A source whom I consider quite reliable tells me that far more people have read Blau’s article online in recent days than when it was originally published.

Months later, investigators from the domestic security agency, the Shin Bet, reached an agreement with Blau, in which he consented to return classified documents and the agency agreed not to use them to find his source. Kam was arrested last December and has been under house arrest since. Blau and the Shin Bet each accuse the other of breaking their agreement. At last report, Blau is wanted by the Shin Bet and is waiting in London while lawyers negotiate his return.

One more crucial detail, which to the best of my knowledge has not been previously published: According to that same quite reliable source, Kam’s trove included the so-called Spiegel Report, a secret military document detailing illegal construction and theft of Palestinian-owned land in West Bank settlements. In January 2009, Blau published an article on the contents of the report, along with extensive excerpts in Hebrew. As former U.S. ambassador to Israel Dan Kurtzer explains in a recent essay — with characteristic diplomatic understatement — the Spiegel material shows that “even with respect to settlements authorized by the Israeli government and supposedly in compliance with Israeli law, there were systematic violations of the law.” The Spiegel Report is essential to any reasoned debate in Israel about the settlements’ future.

Read the rest here, and come back to South Jerusalem to comment.

5 thoughts on “The Whistleblower’s Story and the Spiegel Report”

  1. From the piece:

    —–

    The underlying dilemma is this: A government does have the responsibility of protecting its citizens. It needs an army to do that, and an army needs to maintain secrecy. It can’t function if every soldier decides what to declassify. But armies also use secrecy to hide mistakes, failures, and crimes. The press’ job is to reveal those failures and crimes. The two institutions exist in irresolvable tension.

    An individual soldier may well have a moral obligation to carry out an act of civil disobedience and reveal military lawbreaking. But as Haifa University law professor Naama Carmi wrote this week (in Hebrew): A person who engages in civil disobedience has to be willing to accept the legal consequences — meaning punishment — “to show that disobeying the law takes place within the bounds of general loyalty to the law.”

    —–

    As I argued earlier, I would have the judiciary hold that as the State’s hands are tainted, it cannot prosecute Kam. If the stolen documents had not revealed State lawlessness, she could have been prosecuted. As US Justice Louis Brandeis (a Zionist, by the way) said in one of his opinions, “Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for the law.”

    There is, then, no contradictory tension as described by Gershom. True, one cannot stop all leaks through this logic. But the State, once slapped down by the judiciary, will perhaps hesitate before breaking the law so–loudly–again. There is still a measure of civil disobedience, for the whistle blower must chance that the judiciary will agree the State has violated law. She submits to potential punishment, but no punishment as compromise under competing national values. If the State has been lawless, it may not touch her.

  2. “…the Spiegel material shows that “even with respect to settlements authorized by the Israeli government and supposedly in compliance with Israeli law, there were systematic violations of the law.” ”

    But this is nothing new. She isn’t loathed here for being a “whistleblower” with good intentions–she is despised for being a mercenary little witch who peddled classified documents for money (you failed to mention her attempt to sell the materials to Yediot Aharonot) and whose little exercise in greed put the lives of thousands of soldiers and millions of Israelis at risk. To try to justify this on the grounds that she is being martyred for revealing material we all already knew is disingenuous.

  3. Aliyah06:

    Leaving aside Anat Kam’s motives, how exactly did her revelations of official lawbreaking by the IDF “put the lives of thousands of soldiers and millions of Israelis at risk”? That is a claim that is repeatedly being made, but I haven’t seen any explanation of it, and it sounds intrinsically implausible to me, given the actual contents of the documents that she stole. But perhaps I am missing something here?

  4. I read distant the flaming buses of 2000. “The suicide bomber war” one commentator to this site called it. Sounds like a true naming to me. I cannot really imagine the fear, horror, anger, perhaps dispair during that year and beyond.

    That time is now latently present in Israel. “Millions at risk,” one says. Fortress the future so the past will never be again. But, if you do, be assured that that fortress will be bricked in part by bodies sometimes innocent.

    Today the BBC online informs that an Indian judge in Mumbai has discharged two Indian suspects charged with aiding the terrorists who killed some 166 because the evidence collected had been “tainted,” there being “strong chances of a miscariage of justice.” That judge did not declare the suspects inherently innocent but rebelled from the State’s attempt to make them guilty.

    When the courts refuse the State for tainted hands they say there are some things we will not become. An exercise in possibilities, thereby definitionally dangerous. To say it another way: submitting to God, there is no contract for prearranged outcome. Submitting to God, in Judaism, Christianity, Islam of the name “submit,” is risk. So too submitting for the possibility of justice which, I myself submit, is derived from these prior religious submissions.

    From what I have read, claiming that milllions were placed at risk in the present case charges the Israeli Supreme Court with placing these at risk, for the State’s taint comes from ignoring an ISC order. Is this the real issue, that millions of Israelis have been placed at risk by their own Court? Then why not say it openly? You attack not Kam but your Court. Say so, make the charge. That is a kind of submission too.

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