The bullet casings from a deadly shooting spree were still being examined on Jerusalem’s Haim Bar-Lev Street late Sunday morning when police sent out a message to journalists: “All details of the investigation, the names of the injured, the names of the dead and the name of the terrorist” are under gag order.
Trouble was, the cat had already been let out of the bag. The name of the terrorist, and many other details about the shooting attack that left two dead and five injured, had been widely published — in Israeli media and international outlets.
As more information came out, some Israeli media sites published new details about the incident and investigation, including the names of the victims and other bits and pieces of the slowly emerging story — some of it sent out by official bodies — while at the same time removing other information, all of it ostensibly under the court-approved gag order. Confusion ruled about what was permitted for publication and what was not. Some of the authorities themselves plainly didn’t know. Lots of the media emphatically didn’t.
The byzantine path trudged by journalists and officials in the aftermath of attacks like this is well worn, and illustrates the often complicated and at times seemingly arbitrary process of withholding information from publication — or trying to — as security officials scramble to figure out what they want to keep back, and journalists struggle to reconcile security needs with the public’s right to know.
Just after 10 a.m. on Sunday morning, the 39-year-old Palestinian man whose name still cannot be revealed at time of writing, more than a day later — even though the whole world knows it — drove past police headquarters near Jerusalem’s Ammunition Hill and opened fire at a group of people standing near the light rail station, hitting one woman.
He continued on his spree, shooting and fatally wounding a 60-year-old woman driving in her car, before police officers on motorcycles managed to shoot him dead after a short gun battle that left one officer fatally injured and another moderately hurt.
By 11:15 a.m., police had requested and received a gag order on the case from a Jerusalem District court.
In addition to sending a facsimile of the order to reporters, police also issued a stern written warning: “Anyone who breaks this order should expect a lawsuit.”
Yet three hours later, the self-same police released the name of the officer who was killed, Yosef Kirma, along with two photographs and information about him, both in messages to journalists and on the department’s public Twitter account, in apparent violation of the gag order.
The second victim, Levana Malihi, 60, was named a short while later.
As she had worked for 30 years in the Knesset, the parliament’s own spokesperson sent out the information about her, in another apparent violation of the gag order.
While some details of the case could apparently be published with impunity, the name and photograph of the deceased assailant remained strictly forbidden, according to police.
But that did not stop the Defense Ministry’s Coordinator of Government Activities in the Territories from publishing a tweet with the terrorist’s name and photograph (though it was later deleted).
Nor did the gag order prevent Knesset member Yehudah Glick from sending out a tweet with a picture of the terrorist, which has yet to be deleted, and another tweet with a link to a Palestinian news site containing the supposedly sensitive, banned information.
And all this time, of course, anyone in Israel with internet access could easily find the assailant’s photograph and considerable amounts of biographical information, as long as they weren’t relying on Israeli news outlets — which, being local and Hebrew-speaking, would likely have been more accurate than foreign outlets.
More gag orders, less scrutiny
Though gag orders appear to have lost much of their efficacy and meaning in the digital age, law enforcement continues to put hundreds of them in place each year.
The reason why is often hard to fathom, in part because the very reasons for requesting the gag order are often kept secret.
In their proper usage, gag orders are specifically meant to prevent “harm to the investigation,” according to Dr. Tehilla Shwartz Altshuler, a researcher at the Israel Democracy Institute.
The concern, however, is that gag orders are sometimes issued to prevent harm not to national security, but to the organizations that request them, according to Shwartz Altshuler, who in August co-wrote a white paper on the “triangle” of gag orders, military censorship and laws against espionage that make up Israel’s system of preventing the revelation of state secrets.
‘[The suspect] still thinking that he’s on the lam and that no one knows his identity is the best situation for security forces who know who he is’
In some investigations, police or Shin Bet put gag orders in place in order to prevent the suspect or suspects from knowing that law enforcement is on their trail.
“It’s a huge advantage,” a former high-ranking official in the police told The Times of Israel earlier this year.
“[The suspect] still thinking that he’s on the lam and that no one knows his identity is the best situation for security forces who know who he is,” the former police officer said.
That consideration, obviously, does not apply in the case of Sunday’s terror attack, since the killer himself was shot dead by security officers and information about him had already been published and remains readily available online.
When asked about the current gag order, a police spokesperson said there were “obviously reasons” for the gag order, but acknowledged that “I don’t know” what they are.
What a gag order can also do for law enforcement organizations, however, is offer the opportunity to control which details get released — and which do not.
If all the information about a case is under a gag order, then the police, the Shin Bet security service or the military can keep news outlets from publishing potentially embarrassing or damaging pieces of information, under threat of legal action.
The shooter should not have been in Jerusalem on Sunday morning. He should have been at a prison in Ramle at the time of the attack. Yet, due to a series of apparent mishandlings by the police and justice system, the terrorist was on the streets of Jerusalem, armed with a gun. The gag order may restrict more specific, informed and detailed reporting on such embarrassing — for the security authorities — aspects of the case.
While some details of the case have been released, many more have yet to be, and under the 30-day gag order they may not be for some time, long after the public’s interest in the case has waned.
More gag orders, less scrutiny
In recent years, requests for gag orders on investigations have become de rigueur for police, regardless of the information’s potential harm to national security, and judges have approved them without rigorously considering the public’s right to know, Shwartz Altshuler said.
For years, the country relied upon the military censor to maintain state secrets, but in the 1980s, the Supreme Court limited the censor to preventing only the release of information that “directly harms national security,” Shwartz Altshuler said.
As a result, the police, along with the military and the Shin Bet security service, started resorting to gag orders, which are subject to less judicial scrutiny than the military censor, she said.
“We’ve seen a huge inflation in the number of gag orders issued,” Shwartz Altshuler said.
Exact figures on the number of gag orders issued each year are difficult, if not impossible, to come by, since much of the data is not subject to freedom of information requests.
However, the information that is available — based on the number of gag orders presented to news outlets — points to an approximately four-fold increase since 2000, according to research conducted earlier this year by Noa Landau while she was a fellow at the Reuters Institute for the Study of Journalism at the University of Oxford (she’s currently editor of the Haaretz newspaper’s English edition).
In 2000, the rate of requests for gag orders was approximately 60 per year, according to data from the media watchdog group The Seventh Eye. In 2015, there were 231 requests for gag orders, according to Landau’s research.
“The police run to get a gag order before they have opened the investigation. Sometimes there are cases where there’s not even a reason to open an investigation, but they still seek, and get, the order, ” Shwartz Altshuler said.
For instance, police requested and received a gag order in the case of Avraham Mengistu, an Israeli man who crossed into Gaza two years ago and is believed to be held captive by Hamas, despite the fact that he had not necessarily committed a crime that needed to be investigated, she said. (The information was later cleared for publication.)
Some of the judges simply do not have the digital “literacy” to understand how media is shared in 2016, she said.
In some cases, law enforcement authorities deliberately seek out judges in the farther-flung reaches of the country, who are more likely to be impressed by the importance of the investigation and are thus less likely to question the need for a gag order, Shwartz Altshuler said.
The solution to the rise in gag orders, which are often issued without due regard, is to rework the system responsible for them, she argued.
‘The judge should be asking, “Why can’t that be published? Why would that cause a problem?”‘
Shwartz Altshuler, along with her co-author Guy Lurie, advocates setting up a dedicated legal body to deal with gag orders. Those judges would review the cases every 24 hours, in contrast to the current system, which can issue gag orders for up to one month.
“How stupid does a judge have to be to issue a gag order for 30 days? What do you think is going to happen?” Shwartz Altshuler asked rhetorically.
Under Shwartz Altshuler and Lurie’s proposal, the investigator requesting the order would also have to specify what information is sensitive, instead of just getting a blanket ban.
“The judge should be asking, ‘Why can’t that be published? Why would that cause a problem?'” she said.
Ultimately, however, gag orders will not be a perfect guard for the country’s secrets. “We’re not a very discreet society,” Shwartz Altshuler noted.
The police, army and Shin Bet should continue improving their “information security” and preventing things that are genuinely sensitive from leaking to outsiders instead of relying upon gag orders, she said.
“They need to understand that if you tell something to the wind, the wind will tell it to the trees,” Shwartz Altshuler said.