Archaic gag order lifted: Two Israeli civilians being held in Gaza

This is the third time in five years — that we can discuss — in which Israeli authorities have tried to use comprehensive gag orders to stop the publication of stories of public interest. This also is the third time that the Internet has made a mockery of such efforts to control information.

Avraham 'Avera' Mengistu (Facebook)
Avraham ‘Avera’ Mengistu (Facebook)

A 28-year-old Israeli man, Avraham ‘Avera’ Mengistu, crossed into the Gaza Strip in October 2014 and never returned. +972 and the Israeli media has been unable to tell you anything about Mengistu until today, when a nine-month comprehensive gag order was lifted on the entire affair as the result of an appeal filed by Haaretz. Mengistu’s fate is not known Israeli media has suggested that he is being held by Hamas. A second Israeli citizen, a young Bedouin man whose identity is still covered by the gag order, also crossed into Gaza and is unaccounted for.

A blanket gag order was imposed last year on publication of the story in all Israeli media outlets, which prohibited even the citing of foreign media reports. The story was circulated informally starting late last year. A number of Ethiopian-Israelis dared to start a campaign for his release in recent months by wearing shirts that read “Avera Mengistu?” at anti-racism protests. In early June, American blogger Richard Silverstein published the story in English. Silverstein has been used by Israeli journalists to leak stories under severe gag orders in the past.

The gag order prevented the family from launching any public campaign to pressure the government to secure his release. The Gilad Schalit family, in contrast, managed a massive public campaign operation for five years until the government ultimately negotiated their son’s release. The Mengistu family is alleging that racism has played a large role in the way the state handled the gag order. “I am one million percent certain that if he were white, we would not have come to a situation like this,” his brother Yalo told Haaretz.

A history of failed censorship

The Mengistu case is not the first time that the Israeli security establishment has attempted to bury the very existence of a story using one of the most archaic tools available to a government — a comprehensive gag order. In two cases in the past five years, the borderless Internet made a mockery of the concept of gag orders and attempts to control the free flow of information.

The first case was Anat Kamm, the former soldier-turned-journalist who leaked classified documents implicating the Israeli army in carrying out extrajudicial assassinations — in direct contravention of the country’s Supreme Court.

In December 2009, Kamm was placed under house arrest and a comprehensive gag order was issued, barring every single Israeli, journalists included, from discussing, let along reporting on the very existence of the investigation into Kamm, the fact that she was being held under house arrest, and of what she stood accused.

Read also: TIMELINE: The Anat Kamm affair

Quickly, journalists started mocking the gag order. One newspaper published an article about censorship and blacked out large swaths of the text. Another newspaper wrote about a fictional case of a fictional journalist in a fictional land who was being held under a fictional gag order. Graffitist started showing up around Tel Aviv reading “Google Anat Kamm,” which at the time led web surfers to a U.S.-based blog by Richard Silverstein, who was openly publishing details about the affair.

You see, Israeli courts and their gag orders can really only exert their jurisdiction over Israeli citizens or anybody physically in a location over which Israel has control. All of the allusions led to foreign media interest and soon the story was out there for anybody with an Internet connection and a rudimentary command of the English language to discover.

Faced with the ineffectiveness of its gag order, the Israeli court was eventually forced to clear the Kamm case for publication.

The same year, a far more dramatic saga of overzealous censorship began with the suicide of former Mossad agent Ben Zygier inside a secret prison cell in central Israel. Zygier would later become known as “Prisoner X.” In that case, an Israeli news site actually published details of the suicide in real time, only to have it quickly yanked from the web by order of the court.

A couple of years later, in 2013, somebody was intent on the information getting out and got word to an Australian journalist who started working on the story, eventually publishing it on investigative news show Foreign Correspondent on ABC. When that story came out, Israeli news sites reported on the report, only to have their pieces immediately yanked from the Internet. Photos of Zygier and accounts of the affair, however, were already circulating on social media.

In a Hail Mary move, the Israeli Prime Minister’s Office called an urgent meeting with the editors of major Israeli newspapers in an attempt to convince them of why the story should remain secret. A few hours later, however, four members of Knesset took advantage of their parliamentary immunity to question the justice minister about the case in the parliament, which is televised live. Like in the Kamm affair, the information was out and the courts lifted most of the gag order.

Read also: Censorship and gag orders in the age of new media

When most people think about censorship in Israel, they think about the Military Censor, which indeed conjures up images of Stasi agents in dark rooms. The publication of anything security related must technically pass through the censor, who may censor certain information that is deemed harmful to state security. A publication is further prevented from publishing the fact that information was censored

The way Israeli journalists tend to get around the military censor is by feeding the information to a foreign journalist who publishes the information, thereby allowing the Israeli journalist to report the story “as reported by foreign media.” The hilarious logic in this official loophole is that when something is reported in the Israeli media the enemy will take it seriously, but if it is reported by foreign media, then there is nothing confirmed or certain about it. This is hilarious because it implies a sad truth about the Israeli media: when it comes to military and security issues, the media largely acts as a mouthpiece for the security establishment

So when the security establishment really wants to stop a story from coming out, it has begun using a new tool: court gag orders. Court gag orders are far more effective for a number of reasons. Firstly, anybody who violates a court gag order has committed a criminal offense and can be thrown in jail. Secondly, they apply not only to the publication of information but even to the personal communication of said information. Lastly, most gag orders of a certain magnitude apply even to the discussion of the very existence of a gag order — you can’t even say that you can’t say something.

These three stories are indicative of the futility of trying to contain information that has already escaped the confines of intelligence bases and classified folders. The same, of course, was true for WikiLeaks, the Pentagon Papers, Edward Snowden’s leaks and dozens of other releases of information that various governments hoped to stop.

The story here is not whether the very idea of state secrets is valid as a concept. It is. There is, however, no shortage of cases where state secrets converge with public interest, and in those cases it is the responsibility of journalists to disseminate that information to the public. And it is most definitely the responsibility of all journalists to decide what information the public needs to know, and to fight for the continued right to publish it.

Newsletter banner