Publish the truth, ask questions later

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By Alan Dershowitz

When I first learned about this difficult case, the analogy that came to mind was the Pentagon Papers. I was a lawyer in the Pentagon Papers trial - I represented a U.S. senator and the publishing house that published the book version of the Pentagon Papers. I sided completely with the rights of The New York Times and The Washington Post to publish the papers even though they were classified.

The difference is that the material that was published by the Times and the Post raised no national security problems for the United States. It was historical material and went back to the origins of the great mistake that we call the Vietnam War. The government had lied when it told the court that publication would cost American lives. Governments often lie in situations of conflict. Governments often abuse national security claims and classification systems to protect themselves rather than the national security of the country.

Regarding the current case - I don't know enough about what was disclosed. But it seems that it involves some real-time material that could have affected national security. The other difference is that in the United States there is no mechanism of national security censorship. The Times had to make its own judgments, without the benefit of a national/military censorship stem.
In Israel, the important gate-keeping function is performed by the military censor, which - as I understand it - approved everything that was published by Haaretz. And in fact, another story had gone through the censor, which gave authorization for publication, when Haaretz subsequently received a phone call saying the censor had made a mistake, the paper didn't publish the story. That should end any liability on the part of Haaretz, as the paper completely complied with its obligations.

With regard to its refusal to disclose its sources, I think Haaretz is also acting properly. The real question comes up in Haaretz's decision to encourage Uri Blau not to return to the country. Under U.S. law, there is real controversy about whether it's proper to urge somebody to remain out of the country. As a lawyer I would be concerned that advising a client to remain out of the country might step over the line and become an obstruction of justice.

Even if there was a probability that the person would be arrested on his or her return, many U.S. lawyers would deem it improper to advise a client to remain outside of the country. Also of relevance is whether the individual is technically a fugitive from justice. There are legal mechanisms by which Israel could seek Blau's return from the United Kingdom, and I suggest that the only thing Haaretz may have done wrong wrong was in encouraging him to remain abroad. This, I believe, is the only vulnerability that Haaretz has.

Newspapers are right to protect confidentiality and promises to sources. Haaretz is acting properly in protecting its sources.

I don't know whether or not Kamm has any legal defense. Her role is akin to that of Daniel Ellsberg's. That's not the important and interesting issue in the case, however. In a democracy, the important issue is the right of the media to publish what they have been given, even if someone did something wrong in obtaining it. The paper is not the police, and the media's goal is to report the news, which can include confidential material that, in Israel's case, has passed through military censorship.

I cannot be critical of Haaretz's decision to publish the article, and I think it served democracy and the notion of free press.

Matter of timing

Ultimately in a democracy, nothing should be suppressed forever, but everything turns on timing. Assume you have a case in which a general gives an order for a military action that goes against regulations. If you publish information at the moment before something is about to happen, you endanger Israeli troops. So, the question is when, and of balancing the right of the public to know and the right of the government to protect national security.

Most militaries do not operate properly, and if the whole truth of military actions, about the way in which wars are waged, were to be disclosed, clearly, imperfections would be revealed. The press has an important role, as it promotes accountability. It is part of the system of checks and balances: Maintaining accountability, even in a democracy at war, is more important than avoiding embarrassment.

The gag order [on this case] was removed, so that's a positive story. Israel has a system which is almost the same as the United Kingdom, which has dealt with similar problems. The United States also had similar problems related to over-use of classification. It is important to apply a single standard to everyone. Many Israelis are upset by the governmental intrusion of censorship, which is understandable, but in a situation of ongoing war, there have to be some guidelines. Israel, at its worst, is better than most democracies in the world, and the best of all democracies facing real-time threats.

The United States during World War II imposed far more stringent rules of censorship on reports of battles in the South Pacific, as did England. All democracies try to cover up mistakes through classification. Israel should be judged not by a standard of perfection, but by the reality of how countries deal with these challenges.

Government role

The government ought to pursue those who improperly accessed the material, and be extremely sensitive to the role of the press. Haaretz is in a difficult position as it is the most critical newspaper of the government, so the government has to be extremely sensitive with regard to it, and avoid taking it out on Haaretz because it disagrees with its political views, as I often do.

Haaretz is a jewel in the Middle East, due its right to publish such critical material, and this must be preserved. Of course, secrecy of military actions is important to preserve. There is room for postponing of publication until people are safe. Journalists define common sense differently from generals. There is a need for a neutral auditor making decisions on how to define sekhel [Hebrew for "common sense"] in times of ongoing military threats and [to] balance that with the need to inform the public. Haaretz does not necessarily have the sekhel alone to make the right decision. The public has the right to a balanced decision that reflects both the concerns of the country and the ultimate needs of the society.

I hope in the end the truth and the whole truth comes out, and that generally the truth can emerge without affecting national security.

Prof. Alan Dershowitz spoke to Haaretz's Akiva Eldar by phone from Cambridge, Massachusetts.

15:11 17.04.2010
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