Israeli world record gag order – what are they hiding?

Israeli world record gag order – what are they hiding?
Global report service
23.09.04

A long-going “March of Follies” concerning an Israeli attempt ban two books about the Israeli navy, written by Capt. Navy res. Mike Eldar has reached it’s peak…

In 1997 two of Eldar’s books “Flotilla 11 – the citation battle” and “Dakar – the story of the Israeli submarine unit” were banned by Tel-Aviv district court. Due to false “State Security” accusations, despite the book had been authorized by Israeli military censor and regardless the fact that the two books had already been distributed to shops and libraries.

The Israeli Attorney General, Mr. Elyakim Rubinstien, and the state prosecutor, Mr’s Edna Arbel, demanded the gag order under chapter 117 of the criminal code (the official secret act) claiming that Eldar failed to comply with Israeli law and submit the books to a “Ministerial book committee” operating under chapter 117 and controlled by the I.D.F’s field security department, who refused to accept what they called “the military censor’s soft hand”, and who wanted to prove they have the last word concerning publication of military information.

The field security officers claimed the books comprised several “secrets” that will severely harm state security if published, despite the ruling of the military censor.

The list of the so-called “secrets” was classified and another gag order was issued to prevent its publication.

During Eldar’s struggle to free his books. His home was searched twice by police, his computer and files were confiscated, he as forbidden to leave Israel, he was forced to shut down a web-site comprising embarrassing questions and facts about the case and he was questioned by the police for a ‘severe espionage” charge (chapter 113) – gathering, possessing and revealing classified information.

Four years ago, following endless hours under police interrogation and nonstop court procedures (representing himself) Eldar’s two books had been republished, following a state’s “compromise suggestion”, no   clever person would have rejected.

The Attorney General and the Stat’s Prosecutor, threatened Eldar be charged for “Sever Espionage” and a draft of the indictment was sent to him.

The first judge on the civil case against Eldar was Mrs. Hila Gerstel, who issued all gag orders, following a night hearing at here home, with only the state present.

Later on she was replaced by judge, Lt. General (res.) Amnon Strashnov, the former military attorney.

Judge Strashnov threatened Eldar to drag the gag order procedures for years, denying Eldar of his livelihood and his freedom of expression, if Eldar turns down the compromise suggestion in which Eldar was forced to delete parts of his book “Dakar” and obligate not to sue any of the parties concerned. This system, reminding a Mafia protection blackmail, worked well – Eldar signed the “compromise” and judge Strashnov verified it as a court ruling.

At this stage of affairs, Eldar had to face another problem. His book “Flotilla 13” (published in Israel in 1993) was in publishing process by the Naval Institute Press (NIP) in the U.S. “Flotilla 13 – the history of the Israeli navy commando unit, was a best seller in Israel. The success of this book led to “flotilla 11” and “Dakar”, but also caused field security officers, who hated Eldar’s success, to find a way to get even with him and prove who calls the shots. Thus, the long Israeli hands reached N.I.P as well, and the American ‘brave” editor, a navy Admiral, kowtowed to the outside intervention and breached the contract. Eldar had no strength to fight a battle on both sides of the ocean and the English version of “Flotilla 13” is still waiting for a brave publisher.

When banning the books, the state had to overcome a great obstacle, since about 3000 copies of the two books were distributed before the gag order was issued, and anyone who wanted, could compare the old version to the new one, and find the missing “secrets”. Thus, another gag order was issued by clever Judge Strashnov concerning the fact that a new version of  “Dakar” had been published, and hiding the fact that the book had been changed. When Judge Strashnov authorized this gag order, the “Ma’ariv” main newspaper was on his table, comprising a half page article saying that he himself suggested such “compromise” – that the book be changed…

This gag order, as those on the two books, had no purpose and was meant only to hide from the Israeli public all the lies and omissions of field security officers, state attorneys and “honorable” Judges in this case, such as Strashnov, who now added the “Ma’ariv” article to other documents hidden behind the court “closed door” procedures.

Prior to the “compromise”, another Judge, dealing with the confiscated material from Eldar’s home, orders the state to return all the material to Eldar, proving that Eldar did not gather or possess and ‘secret” material – the legal reason for his home search…

“Dakar” was Eldar’s second book to be banned but was the first to be re-published, followed by a media campaign.

A year later “Flotilla 11 “ was back on the market. Re-publication of this book was followed by another grotesque struggle. The CIC, General Mufaz, (later on Minister of defense), approved the book prior to the “compromise”, as it had been published, with no changes, following a recommendation by General Dan Halutz, who was appointed by Mufaz to examine the case.

Now the Attorney General and the State’s attorney faced a new “problem” since “Flotilla 11” (still being banned) comprised all deleted parts from “Dakar”, and even more detailed. Thus, the CIC was forced by then to change his written decision to “free” the book. Now he wrote another letter, a classified one, to the “Ministerial book committee” saying that he approved the book as long as all the “secret” changes deleted from “Dakar” are deleted from this book as well.

This time Eldar refused to oblige and the “book committee” extended the gag order for several more years.

A few months later Eldar was surprised with a letter from the “book committee” saying that the book had been approved for republication with no changes. Later on Eldar learned that Ret. General Ehud Barak, then Minister of Defense, ordered the release of the book as is.

By doing so, the “book committee” enabled any interested party not only to compare the two “Dakar” books, but also compare “Flotilla 11” to the new version of ‘Dakar” and find all the “secrets” that led to the stupid gag orders.

The Israeli world’s record gag order fiasco had not yet reached its peak. More scandalous episodes were to come, proving that no one can stop a “march of follies” and reassuring the fact that the combination of “Military officers” and “state attorneys” is a destructive one.

It took only six months for the state itself to prove that the Mafia “compromise” system cannot long live.

When the former   military censor, Lt. General Shany retired, he was interviewed by Ronen Bergnman on “Ha’aretz”. The Journalist asked him about the Eldar case and Shani supported Eldar’s side, saying that he resented the state’s behavior in the case.

The Journalist called Colonel Yoav Ben-David, who had just resumed office as chief of field security. Ben-David was the officer who initiated the fight against Eldar and the one to demand all the gag orders.

Ben-David was asked about the Eldar case and let his ego rule his mind. He said that all the secrets “subjects” were deleted from Eldar’s book. By doing so he reminded any teenager rushing to tell his friends about his recent night’s sex success…

Colonel Ben-David violated courts gag order, he himself demanded, he revealed a “secret” he himself classified and he made a mockery from court and himself.

Eldar appealed to District Court, demanding the lift of the gag order on the “compromise”. “Honorable” Judge Strashnov rejected the request and Eldar was fined 2000 shekels due to Hutspa, bothering the court with a “Closed case” as Judge Strashnov wrote. In edition, Ben-David’s violation of the law was added to the closed-door files and Eldar was forbidden to repeat Ben-David’s words…

One can think that this is absurd – the coming lines are worse. A student’ writing a paper on the Eldar case, came to Eldar’s home, asking him if the book “Dakar” had been changed. Eldar did not reply. Then the student showed him a copy of a High Court decision in his case, he had printed from High Court’s official web site. The decision said that the protocol of the hearing could be published, besides the fact that the book will be changed, a fact which will remain concealed.

Eldar sent the web site print to Judge Strashnov, once again asking to open the court files. Strashnov, as usual in this case, rejected the request and concealed the web-site print behind closed doors, as doing with all documents Eldar presented to prove his case. At this stage of affairs one could expect the “sate” to delete “secret’ decision from High Court’s web site. No! That was not done…

Eldar did not give up. Representing himself in all court levels, he appealed to High Court against Strashnov’s ruling. It took six months for Judge Strasberg-Chhen to cancel the Strashnov ruling. She did not lift the gag order on the court files but ordered the case be sent back to Strashnov for a proper hearing. She also ordered 20,000 shekels to he who wins the case.

Thus, once again Eldar had to approach Judge Strashnov and once again he faced a “brave” Judge. This time it was Mrs. Strasberg-Cohen who refused to let Eldar quote from the “secret” High court ruling, but did not order it be deleted…

District Court Judge Adi Azar was next on the case since Judge Strashnov resigned to private practice following accusations of a sexy episode with one of the lawyers presenting a case in his court.

Judge called for a hearing and Eldar questioned Major Roni   Levi, Israeli navy field security officer. Following the hearing Judge Azar ruled in favor of Eldar and Eldar “one” 30,000 as court expenses. Azar ordered the lift of the gag order on the fact that the book had been changed but refused to do so with the list of changes and there location in the book, saying that Eldar had obligated himself during the hearing not to publish the “list of changes”, which had been authorized for publication by the military censor and published in several web sites.

Eldar could not live with such a ruling, since he had never obligated himself as claimed by the Judge.  Once again he appealed to High Court, to lift the gag order on the “secret” list. In response, the state appealed against the entire ruling, saying that the enemy, despite all publications, had no idea about the two “Dakar” books and that they had no knowledge about web sites comprising the list, with the censor’s stamp on it. They also claimed that   the Judge had no right to intervene in “military decisions”…

At this stage of affairs Eldar approached the Knesset (Israeli Parliament) law committee.  The chairman, M.P Michael Eitan was the “best” example for state’s abuse of freedom of expression and a good tool to promote changes in the laws enabling the state to overrule the military censor, using the Israeli court and the Ministerial book committee as tools to do so.   M.P Eitan claimed that the Israeli court failed to comply with it’s own High Court’s ruling concerning such cases. Thus, concealing behind closed doors information that has nothing to do with “state security” but has a great deal to do with personal omissions.

In a committee hearing, M.P Eitan revealed several “secrets” of the Eldar case. In response, the State prosecutor banned parts of the hearing protocol. M.P Eitan published the protocol in the committee’s web site, with black lines covering the ‘secrets”. In addition, he sent a letter to Judge Barak, High court’s president, to Mr. Lapid, Minister of Justice, to the Attorney General and to the Knesset’s speaker, demanding an immediate lift of the non-precedent gag order on a Knesset protocol.

 A few days later High Court Judge Rivlin rejected both appeals on Azar’s ruling. He ruled that the fact of the changes done in the book is no longer a “secret” and said that state officials should blame themselves for causing that situation. On the other hand, he refused to lift the gag order on the list of changes. He refused to deal with the question if Eldar had “obligated” him self, as Judge Azar claimed. He used another excuse: this time it was the claim that Eldar failed to supply evidence that the list had been published…

Judge Rivlin stated that in contrary to the question of the “fact” of the changes, that was published in newspapers, the “list of changes” was published “only in web sites” – as if web sites are not publication. Judge Rivlin, as all Judges on this case, accepted any claim coming from the “state” regardless true facts or simple logic.  

Following Judge Rivlin’s ruling, several lines, deleted from the Knesset protocol were now approved. He who opens the site WWW.KNESSET.GOV.IL/HUKA will find two black lines covering “secrets”.  One of them is enough to make any person laugh. The line quotes M.P Eitan saying: “I typed the name ‘Mike Eldar’ in Google and here is what I found (black line)”.  At this stage of affairs one can search Eldar’s name in Google but the Knesset can’t say what was found due to the search, since it is a “secret”. The people who supported this utter stupidity are all top level people: Minister of Defense,  Minister of Justice, Attorney General and so on – those who are in charge of war and peace – gevald!

Judge Rivlin also accepted the state’s demand to conceal many parts of Judge Azar’s ruling, mainly saying that they were two ‘Dakar” books on the market.

Eldar appealed against that as well, presenting the court with the old version of “Dakar” and the new one, borrowed from a public library. By doing so he tried to prove that the state’s claim that the enemy had no access to the old version is false and absurd. Eldar requested the court to return the books, since they were library property. What did the honorable Judge do? He ordered the return of the books but concealed the fact that they were taken from a library, using “state security” as an argument to do so…

In other words: Eldar can return the book to the library, but one is forbidden to publish the fact that the book is there, when, at the same time, the national book home, in its web site, published the fact that it had the two versions – all Judges concerned knew that fact from the day the book was banned…

At this stage of affairs Eldar is still struggling to open all concerned court files comprising “secrets” about the way Israeli officials use “state security” as an argument to protect their own ass.

Eldar has also issued several High Court appeals, one of which is the demand to suspend Col. (res.) Ben-David from his position as head of the security department in the military archive. Following Eldar’s complaint, the police opened an investigation against Ben-David for revealing the “secret”, not knowing that the state prosecutor rejected Eldar’s request to do so. The police officers recommended Ben-David be charged, but the state prosecutor rejected and the case was closed…

Such a struggle, proving that the march of follies never ends, left Eldar with court-closed doors and many public closed platforms. Eldar, a British subject as well, and an eloquent public speaker, spends his time struggling to reveal this long going fiasco and speaking about “freedom of expression” to who ever wants to hear.

This article is only a short review of what had led to the following Judge Azar ruling of 15/3/03, comprising in the bold and underlined letters the “secret” parts. It seems that even one person in the world can find the “state security” logic for the deleted lines, besides utter stupidity.

The following translation of Azar’s ruling is not a professional legal work, but it supplies the reader with the best example of that long-going stupidity:

Tel-Aviv District Court

Case 1262q97

Judge Adi Azar

In the case of Captain (res.) Michael Eldar, representing himself.

Against: The state of Israel, Ministry of Defense.

Decision

A compromise has been reached between the two sides in this case authorized by District Court (the honorable Judge Strashnov) in 29/11/99 in a verdict saying:

“I accept the request of both sides, as stated in article 9 of the agreement, in which a gag order is issued, in this stage, by the court, on the agreement and its content. The court will be ready to reconsider the sides request to lift the gag order according to developments.”

Article 9 of the agreement said:

“At this stage of affairs both sides accept a gag order on the agreement and its content”.

The back ground to this case is a gag order on two books written buy Eldar on military issues. The books were finely approved in a new version authorized by the ministerial book committee operating under chapter 117. (Translator remark – only one book was changed).

The compromise agreement reveals the fact of two versions of the book ‘Dakar’ and forbids publication of changes in the book.

Comparing the two versions of the book might reveal, according to state’s claim, classified material since one can learn from comparing what parts were banned and attract public attention to them.  Thus, it has been agreed to ban publication of the agreement.

Three years have passed and Eldar appealed to lift the gag order due to new developments. Eldar claimed that the compromise agreement had been published in web sites and in other publications and that the gag order, meant to prevent Eldar from writing another book, should be lifted.

Eldar claimed that the fact that of the changes in the book was published in the High Court’s web site, in appeal 189q99, forbidding publication of the fact that the book will be submitted to changes. Thus, the “secret” is openly published in an official publication. Eldar also claimed that the “secret” had also been published in “Bamahane” (4/5/01) quoting Col. Ben-David, chief of field security, saying that the book had been changed. “Bamahane” is an official publication of the IDF and its articles are approved by security personal. Eldar also referred to other publications of the “secret” in ‘Ha’aretz”, “Zomet Hasharon” and Internet sites. Thus, he claimed that there is no longer any justification for the gag order after the secret had been revealed.

In a ruling from 7/3/01 the court (Judge Strashnov) rejected on the threshold Eldar’s request. In High Court appeal 29/5/01 Judge Strasberg-Cohen ruled (7/8/01) that this ruling should be canceled and that the District Court should decide if following the compromise new developments have occurred justifying lift of the gag order.

Eldar appealed to call for such hearing and the state reacted by saying that Eldar had not showed any new development that should cause removing the gag order. The state supplied an affidavit signed by Major Roni Levi, chief of navy field security, stating the I.D.F’s position that no new developments have that occurred should cause lift of the gag order.

The declared opinion was that lifting the gag order will focus enemy’s attention to sensitive subjects

(Translator remark – this is a line that Judge Rivlin, in the High Court appeal, opened, against states demand. Why this line, when similar lines were left concealed???)

In a hearing that took place in 15/12/02 Major Levi was questioned (by Eldar – t.r).

In reply to the question about the logic in a gag order on things that had been published, such as in “Ha’aretz”, he replied that it depends who published and in what content. If it will be published in reference to a subject that was banned, it will attract attention and help the enemy know what is being concealed.

(Translator remark – What is the difference between the recent lines, approved by Judge Rivlin, to these, not approved???)

Also publication in High Courts site and an Article in “Zomet Hasharon” did not change Major Levi’s opinion, since he claimed that one should check the influence on the navy.

The witness was questioned about web sites such as “Tip”, comprising the two versions of the book (the original one and the translated one) and replied that the publication had not influenced the enemy, according to a check that had been done.

The witness also explained that the internet is packed with non official publications that cause no harm, in contrary to things that will come from a high ranking officer (Eldar – t.r) who is personally involved and knows the navy history, will attract attention.

(Translator remark - one can publish the fact that they are sites with the “secrets” but not say what they are – a bad joke…)

Eldar himself replied to the courts question that he has no intention to publish the list of subjects since he is obligated to state security (page 13 of the protocol).

(Translator remark – never happened. The protocol does not show any “obligation, what so ever).

Following these procedures, the parties supplied their summaries.

Eldar stressed the fact that the ‘secret” had been revealed by the chief of field security (Ha’aretz 26/5/00) and by Rear Admiral Lunz, former chief of navy intelligence in “Zomet Hasharon 2/2/01. Eldar claims that there is no doubt that the enemy had read an article in “Ha’aretz” that dealt with the Israeli chief censor. This is a logical claim that was not contradicted by the state.

Eldar added that the “secret” was published by “Bamahane” quoting Col. Ben-David saying that the book “Dakar” had been republished in January last year with changes.

These words clarify to the reader there was an original version and that there is a new version with changes. That same article says that the gag order ion “Dakar” was implemented although 1000 copies were on the market.

“Bamahane” is an official military publication and anything published in it can’t be considered as harming state security even in a low level of reasonability.

Thus, since the compromise, the fact of the changes in the book “Dakar” has been published by high ranking officers in major communications and therefore, the witness claim concerning attraction of attention is not very convincing.

In this way it had been proven that there had been developments justifying lift of the gag order. The fear that the enemy observes the Israeli media is a known factor and needs no evidence. The more main the publication, and the higher rank of the person being interviewed, increases the fear that the things are being learned – and that’s the case here. In spite of these publications there were no “intelligence developments” observed at the enemy, according to this witness. Thus, the subject does not carry any harm, to state security.

The state’s summery stressed Major Ron Levi’s words saying that there were no developments justifying the lift of the gag order. In edition, the attorney’s pointed to the witness words saying that no signs were found that they publication had caused the enemy to change its opinion on the navy. What is the conclusion of these things? The state claims that despite the publications, the enemy, lucky enough, failed to notice the information lay in front of him. The lift of the gag order, claims the state, may attract attention and harm state security”.

This claim is not convincing!

(Translator remark – Another example of a false “state security” claim to cover up a “not convincing” claim).

The state stressed the importance of official publication and supplied president in the Benziman case. This case is not relevant to the case in question. Mr. Eldar is not an official military spokesman and cannot approve anything in the name of the I.D.F. On the other hand, the things had already been published by high-ranking officers including publication in the I.D.F journal “Bamahane”.

The summaries also dealt with the motive of the request to lift the gag order. Eldar claimed that he wishes to prove that he had never harmed state security and that there was no reason to the case in question.   The state claimed that the request is used as a non-fare tool to receive compensation. I will not rule on this matter.

The court hearing dealt with the question if there were developments justifying the lift of the gag order and I am impressed that such developments exist – publications in the media coming from senior officers approving the fact of two version of the book “Dakar”.

Finely the state claimed, in a rough tongue that on couldn’t learn from the publication that the book had been changed and that a new version had been published and that an earlier version exists, with no changes.

Reading the “Ha’aretz” article and specially the article in “Bamahane” teaches that one can understand that there are two versions with differences.

When it is known that these exist and that they can be found in the Internet, one can no longer speak about a secret.

These claims reminds of the “Spy Catcher” case concerning the gag order on Peter Writes book in England. The attempts to ban the book failed, the book was published and a best seller and the state’s attempt to ban it failed following publication in Australia and in the U.S. At first, British courts ruled in favor of the state, and banned the book, but those were finely canceled by the House of Lords saying that the book had already widely published and thus, no damage can be caused by publication in England as well.

High Court ruling dealt with the question of “freedom of expression versus the fear of harming state security. In appeal Genam Yasim against the state of Israel, Judge Barak ruled: “In what circumstances, and according to what scale, can one limit freedom of expression in a society that respects human rights in order to protect and

maintain public peace? What is the ‘balance formula’ between public peace and freedom of expression? In this context court was faced with two main questions: One, the level of the expected harm to public safety justifying limitation of freedom of expression; The second, the level of probability that harming public safety will occur if freedom of expression is not limited. High Courts reply to these two questions: Freedom of expression retreats public safety only if the harm to public safety is so harsh, severe and serious and only if there is a close certainty that permitting freedom of expression will cause such harm..,”.

(Translator remark – The honorable judge Barak, High Courts president aught to ask himself if this entire case and the banned lines in this ruling, are even close to his important words?)

Major Ron Levi, head of navy field security stated in chapter 7 of his affidavit that he fan supply detailed verbal information during the hearing concerning the large sensitivity “close to certain harm to state security if the secrets are revealed.

During the hearing, Major Levi did not detail anything beyond chapter 5 in the affidavit saying that the fear for state security is focusing the enemy on the different versions of the book.

Thus, a conclusion is vital, that after the differences in the versions had already been revealed, as proved in the hearing, a harm to state security is not possible if it is revealed again.

In this case I decide, according to the described aforementioned that the secret has already been revealed and that there is no justification to the continuation of the gag order due to developments described in this decision.  I here by decide to cancel the restraining order in this case, excluding the list of changes in the books and their location in the books, that will be concealed for ever – following Eldar’s approval in page 13 of the hearing protocol 0f 15/12/02.

The ruling will be validated in 60 days from today.

Expenses of 7500 shekels will be paid by the state + 20,000 shekels ruled by High Court.

11/5/03 – Judge Azar Adi – Tel Aviv District Court

More material on this case can be found via Google and at:

www.zahal1.tripod.com

www.zahal 2003.tripod.com

www.court.gov.il

www.tip.co.il

www.omets.migvan.il

This is the article as published by Global-Report in September 2004. A short while ago it became clear that the article had mysteriously disappeared as well as a Hebrew article on the case.

Many things have developed in this case since 2004, which will be covered shortly by a new article.