It’s not leaks to the press that are at the heart of the new Shin Bet investigation
The fact that an employee of the security agency allegedly leaked classified information to a government minister close to the PM makes the recent affair a continuation of a dangerous pattern
Yuval Yoaz is the legal analyst at Zman Israel, The Times of Israel's sister Hebrew website. He practices law, specializing in public, constitutional and media laws. He is a partner in the law office of Karniel & Co Yoaz-Bareket-Jonas.
To understand the broader context of the offenses allegedly committed by the Shin Bet employee known as A, who was arrested last week on suspicion of passing classified documents from the agency’s computers, one needs only look at the recent security documents scandal in the Prime Minister’s office. For the same reason, the term “leak” is not a suitable description for what lies at the heart of this case.
First, the facts: Central-Lod District Court Judge Michal Barak-Nevo rejected on Tuesday the appeal filed by the Shin Bet employee against the decision to extend his detention and determined that he would stay in police custody until Wednesday, when he was released to house arrest.
At the same time, the sweeping gag order imposed on the affair was narrowed down, so it is now possible to publish all known details except for the detainee’s name and identifying information.
According to the court’s ruling, the suspect, a Shin Bet reservist, passed information and documents to Diaspora Minister Amichai Chikli, and to journalists Amit Segal of Channel 12 and Shirit Avitan Cohen of Yisrael Hayom – and possibly to other individuals as well.
The material in question concerns both an internal Shin Bet investigation into suspicions about Kahanist infiltration into the Israel Police, and the Shin Bet’s review of the events of October 7.
According to available information, the suspect admitted to the actions attributed to him and explained that he acted out of ideological motives, believing he was serving the public interest. The suspect’s motive tells the broader story unfolding before our eyes, beyond the dry legal facts of criminal law.
Some 15 years ago, Anat Kamm – a young woman who had recently ended her army service – was charged and convicted of offenses labeled “serious espionage” and “unauthorized possession of classified information” under the Penal Code, after she removed hundreds of classified documents from the office of the IDF Central Command chief where she served, and passed them to Haaretz journalist Uri Blau.
The Anat Kamm affair also raised the question of whether it was appropriate to call the act a “leak” and frame it through the lens of government officials leaking information to journalists.
While there is no dispute that the leaker commits a criminal or disciplinary offense by handing over classified information, leaks to the press are generally viewed as a positive phenomenon in liberal democracies, as they are part of the way the press fulfills its essential role as a watchdog of the democratic system, by publishing information that is not necessarily convenient for those in power.
Had the focus of the current Shin Bet case been solely on leaking material to journalists, it could have been evaluated using the principles established in a 1987 Israeli Supreme Court ruling by Chief Justice Meir Shamgar, in a case dealing with journalistic source protection.
“The democratic process depends on the ability to conduct open discussion of the issues on the national agenda and to freely exchange views on them,” Shamgar wrote back then. “In this process of clarification and debate, the media plays a role of the highest importance. It enables the meaningful public dissemination of information in all areas of life. The interest of journalists in protecting their sources from exposure stems from their desire to safeguard the freedom of the press, for the latter includes the right to gather information.”
The court and the prosecution did not treat the offenses in the Anat Kamm affair as mere leaks. The approach – both toward Kamm and toward Blau, who held extremely sensitive security documents on his computer for some time – was through a security lens, hence the specific sections of the Penal Code that were invoked.
In the more recent security documents affair at the Prime Minister’s office, NCO IDF officer Ari Rosenfeld leaked classified documents to Eli Feldstein, then a media adviser to Prime Minister Benjamin Netanyahu. Feldstein went on to leak material from one of these documents to the German newspaper Bild.
In the Rosenfeld-Feldstein case, the charge of “disclosure in breach of duty” – which deals with routine leaks not necessarily related to security – was not central. Instead, the key charges in their indictment were the transmission of classified information and the transmission of information with the intent to harm state security.
These are also the core suspicions against the Shin Bet employee suspected in the current affair. The leak of materials to journalists Segal and Avitan Cohen is, of course, a criminal offense – made more serious by the fact that it involves classified Shin Bet documents. However, had that been the full extent of the case, his actions might have been judged within the standard framework of leaks.
But the Shin Bet employee didn’t just leak to journalists – he handed over information directly to Diaspora Affairs Minister Amichai Chikli, in a face-to-face meeting. In this sense, his actions must be viewed as having potential to deliberately sabotage internal investigations and operations conducted within the Shin Bet.
Accordingly, it has been clarified that no investigative actions were taken against journalists, such as wiretapping, and no journalist has been questioned or asked to give testimony.
Just as Rosenfeld is accused of extracting documents from the IDF’s Security Information Department (MAHBAM) computers and passing them directly to an official in the Prime Minister’s Office – Feldstein – bypassing the chain of command and violating all protocols regarding the handling of classified security materials, so, too, did the Shin Ben employee in the current affair act on his own volition, handing over documents from Shin Bet computers directly to a cabinet minister closely tied to the prime minister and aligned with his political interests.
Unlike Feldstein, Chikli himself has not been questioned in the current case – presumably because there is no indication that he used the information he received. However, if the information or documents the suspect gave him were indeed classified, and if Chikli had no other legitimate access to them, any use of that information could have made him a party to the offense, just as the use Feldstein made of the classified documents he received made him party to the offense. So the fact that Chikli is not a suspect suggests there is no reasonable suspicion that he acted on the information.
The immediate mobilization of ministers and coalition members in support of the Shin Bet employee, and their brutal attacks on Shin Bet chief Ronen Bar and Attorney General Gali Baharav-Miara, reinforce the conclusion that the suspect acted out of political motives – to disrupt the agency’s operations.
This points to two serious phenomena:
First, the interference of politicians in ongoing investigations, which the Supreme Court only recently reiterated, is illegal in its ruling on an amendment to Israel’s Police Ordinance. Even Knesset Constitution Committee Chair, MK Simcha Rothman, quickly joined the fray, announcing a special session of his committee to discuss these claims – a blatant violation of the rule against political interference in specific criminal investigations.
Second, in the politicians’ wild attacks on Ronen Bar, the true motive of the entire operation is exposed, if any further proof was needed. It turns out that individuals close to the prime minister – be it his advisers Jonatan Urich and Eli Feldstein, or Minister Amichai Chikli – have allegedly constructed a network of sources within hierarchical state bodies, with the aim of distorting the operations of national institutions to serve Netanyahu, rather than the public interest.
The king before the kingdom: That is the true, broader meaning of the government’s efforts to destroy what little remains of Israeli statehood within its national institutions.
Yuval Yoaz is the legal analyst of The Times of Israel’s Hebrew site Zman Yisrael, where this article was first published.
