Gagged! Are the police and courts untenably handcuffing the media?
A look at the controversial and commonplace tool of the gag order, which has come under particular scrutiny after the triple murder that inflamed the region
Mitch Ginsburg is the former Times of Israel military correspondent.
Last Sunday, before the outbreak of Operation Protective Edge, Israeli reporters were told that the police would hold a 5 p.m. press conference. The subject: dramatic developments in the killing of Muhammed Abu Khdeir.
The teenager, a resident of East Jerusalem, had been found dead, brutalized, in the Jerusalem Forest on July 2. The murder, in the wake of the triple murder of Israeli teens, sparked riots in Jerusalem and in Arab towns across Israel.
The scenes were reminiscent of October 2000, when Arab citizens of Israel took to the streets, violently blocking major throughways. Police, at that time, responded with live fire, killing nine citizens of the state.
The 2014 clashes continued on and off, in the rhythm of Ramadan, throughout last weekend — a sort of brush fire that any gust of wind could take. And yet, despite the Abu Khdeir family’s claims that the murderers were Jews, the police and Shin Bet remained mum. The case was under a gag order. No details related to the investigation could be released.
At 4:23 p.m. Sunday, the Shin Bet sent out an email to reporters. At last, it seemed, the details of this grisly but not all-that-complicated case — the perpetrators and the car were caught on CCTV — would be released.
Instead, the email read: “In the wake of expedited intelligence activity, the Israel Police and the ISA, on 16 June 2014, arrested Hussein Yousef Hussein Khalifa, from Iblin in the Galilee, on suspicion of involvement in the 1 May 2014 murder of Shelley Dadon in the Migdal Haemek industrial zone.”
In other words, a different court-sanctioned gag order was being lifted, this one relating to the murder of a Jewish woman at the hands of an Arab man — and this despite the Shin Bet’s own admission that Khalifa’s “motives have yet to be fully clarified.”
One hour later, the Shin Bet sent out another email: Several Jewish suspects had been arrested for the murder of Muhammed Abu Khdeir. “All other details regarding the investigation,” the message made clear, “are under a judicial gag order.”
No reason for the order was provided; the press conference was canceled.
But the story is far from complete. Because for weeks prior to the Abu Khdeir murder, ever since the June 12 kidnapping and murder of Eyal Yifrach, Naftali Fraenkel, and Gil-ad Shaar, the police and Shin Bet had asked for, and received, a gag order on all matters relating to that investigation, too — creating a ringing dichotomy between what some reporters and security officials knew (that the teens had likely been swiftly murdered) and what was being said to the public (namely, that the forces were operating under the assumption that the teens were alive).
The sting of the awful truth, some observers say, may have played a role in fueling the revenge killing in Shuafat. That may be a stretch. Other far more odious and powerful factors were at work. But the routine issuing of gag orders — a court-sanctioned handcuffing of the press in order to aid the work of the police — has certainly come under greater scrutiny of late, drawing criticism from legal scholars and praise from police, which maintain that the practice is essential to properly investigating a crime.
The first problem, said Dr. Yuval Karniel, a lecturer at the IDC Herzliya’s School of Communications and an expert on media and the law, is that gag orders are requested from the courts without any other parties present. Only after the fact can journalists protest the gag order before the court. “That’s one of the reasons we see unnecessary orders,” he said.
The fact that requests from police and the Shin Bet are so regularly accepted by the courts, he added, leads authorities to then, at times, open and close the faucet of information not merely on the dictates of operational considerations but also, perhaps, “as a sort of media spin.”
Gag orders, he said, are at times used as “a political tool in the hands of the authorities and the government, allowing for the convenient release [of information].”
Moshe Negbi, legal analyst for Israel Radio and a senior lecturer at the Hebrew University’s department of communication and journalism, said he does not dismiss the tool as categorically improper. “There are times when it’s justified,” he said, “but the finger is too light on the trigger.”
A compelling example, he suggested, was the most recent operation in the West Bank, launched after the kidnapping. If the gag order was issued on all aspects of the case in order to help the security authorities track down the suspects and the then-missing teens, then, unquestionably, it was justified. If, however, the security authorities asked for the gag order also because they did not want the public to know that the troops were looking for bodies — thereby ensuring full public support for the second part of the mission: sending 10 brigades into the West Bank to arrest hundreds of Hamas members and take apart the Hamas infrastructure in the West Bank — “then it was entirely illegitimate.”
Israel Police spokesman Micky Rosenfeld described the gag order as a crucial tool in solving the crime. When everything is shut down, he said, when no information is let out, “our units can work in the field. When it comes out, then all of the suspects will disappear.”
Stating that gag orders are often requested immediately, Rosenfeld said police anti-terror units, for instance, may be tracking a certain vehicle and as soon as the suspects are aware of this, they will abandon it. Refusing to go into the specific details of the recent cases, he said that the gag orders are an essential and routinely used tactic. “It’s so that they don’t know what you know,” he said.
Senior Israel Police officers in Knesset, such as Deputy Finance Minister Mickey Levy, who served previously as the head of the Jerusalem branch of the Israel Police, refused to discuss the subject on record.
Negbi, who is fond of Justice Louis Brandeis’s famous line about sunlight being “the best of disinfectants; electric light the most efficient policeman,” pointed to an irony at the heart of the process that routinely authorizes gag orders. The courts, which severely limited the power of the military censor’s authority in a 1987 ruling, today have allowed themselves to play a central role in prohibiting the dissemination of information. “The judicial system is allowing itself to serve as a sort of alternative military censor,” he said, “which is absurd after they, themselves, reduced the scope of military censorship.”
