The Whistleblower's Story

Now that the Tel Aviv District Court has lifted its gag order on the Anat Kam affair, Israelis don't need foreign news sites to learn about the ex-soldier who allegedly leaked digitalized reams of classified documents to a reporter. That makes life easier for those whose English is weak, but the difference in public awareness probably isn't significant. The gag order had already insured intense curiosity. What the increased access should do is stir a serious debate about balancing freedom of the press and whistleblowing with secrecy and security -- a debate every democracy needs regularly.

What's reliably known is this: Kam is 23. (In news photos, she looks 15 and terribly innocent -- possibly an image designed by her lawyers.) During her required army service, she worked as a clerk in the office of Gen. Yair Naveh, then-head of the Israel Defense Force's Central Command. When she completed her service, she took home CDs to which she had copied many classified documents. Later she passed information to Uri Blau, an investigative reporter for Ha'aretz, the Israeli daily that has been most ready to criticize government policy in the occupied territories. In November 2008, using some of Kam's material, Blau published a long article titled "License to Kill." It alleged that the IDF had deliberately ignored an Israeli Supreme Court ruling that barred targeted killing of suspected terrorists when it was possible to arrest them. A source whom I consider quite reliable tells me that far more people have read Blau's article online in recent days than when it was originally published.

Months later, investigators from the domestic security agency, the Shin Bet, reached an agreement with Blau, in which he consented to return classified documents and the agency agreed not to use them to find his source. Kam was arrested last December and has been under house arrest since. Blau and the Shin Bet each accuse the other of breaking their agreement. At last report, Blau is wanted by the Shin Bet and is waiting in London while lawyers negotiate his return.

One more crucial detail, which to the best of my knowledge has not been previously published: According to that same quite reliable source, Kam's trove included the so-called Spiegel Report, a secret military document detailing illegal construction and theft of Palestinian-owned land in West Bank settlements. In January 2009, Blau published an article on the contents of the report, along with extensive excerpts in Hebrew. As former U.S. ambassador to Israel Dan Kurtzer explains in a recent essay -- with characteristic diplomatic understatement -- the Spiegel material shows that "even with respect to settlements authorized by the Israeli government and supposedly in compliance with Israeli law, there were systematic violations of the law." The Spiegel Report is essential to any reasoned debate in Israel about the settlements' future.

With all due caution about making predictions, it seems likely Kam will do jail time. In a morally complex universe, an army has to deter soldiers from taking home gigabytes of classified material. In the same morally complex universe, Kam also deserves to be decorated by the Parliament or president for serving the public good. With all due caution about predictions, I'm not expecting a press invite to the awards ceremony. One more forecast: Though the case raises suspicions -- of everything from aggravated incompetence to defying the Supreme Court and perhaps murder -- about other people, none of them will pay a price. This will be a variation on what Israelis call the "sentry syndrome," in which the lowest-ranking soldier takes the rap and the brass gets off.

Part of the incompetence involves officers and officials failing to notice that they live in the digital age. Technical ignorance apparently made some of them complicit in her breach of secrecy. It allows others to exaggerate her offense. According to one report (obviously based on leaks by people not named Anat Kam), Gen. Naveh received secret reports by e-mail on the army's internal network and wasn't supposed to print or copy them. But Naveh was reportedly one of those 20th-century bosses who likes reading his e-mail on paper. So the messages were transferred to another computer, and Kam printed them. She also saved them as files. Don't expect the ex-general to pay for breaking the rules.

When Kam was about to be discharged, she copied the files to two CDs. The indictment says she took 2,000 documents, of which 700 were secret. The quantity seems damning, undermining any claim that she intended to reveal specific violations of law -- until one remembers that on a computer, it's much easier to copy a whole directory than start picking through the files.

Something worse than incompetence has been shown by commentators for other Israeli papers who have attacked Blau and Ha'aretz. (Full disclosure: I've written on and off for Ha'aretz over the years.) Military correspondents at every paper depend on leaks, usually from people with much higher ranks than Kam. I know of two essential works of Israeli history based in part on secret papers that Cabinet ministers kept after they left office. In the best case, Ha'aretz's critics are showing intense professional jealousy; in the worst, they are playing to the public's jingoism. Either way, they've forgotten that the press' job is not to help the military keep its dirt hidden.

What really demands scrutiny are the affairs that Blau uncovered. Former Israeli Attorney General Menachem Mazuz released a statement this week saying he'd looked into Blau's story on targeted killings at the time it was published and concluded that the army had not broken the law. Unfortunately, a statement by the government's top lawyer that the government obeyed the law does not inspire total confidence. An outside investigation would be appropriate. Mazuz certainly didn't rush to act on the Spiegel Report by prosecuting settlers who built on privately owned Palestinian land or officials who helped them.

The underlying dilemma is this: A government does have the responsibility of protecting its citizens. It needs an army to do that, and an army needs to maintain secrecy. It can't function if every soldier decides what to declassify. But armies also use secrecy to hide mistakes, failures, and crimes. The press' job is to reveal those failures and crimes. The two institutions exist in irresolvable tension.

An individual soldier may well have a moral obligation to carry out an act of civil disobedience and reveal military lawbreaking. But as Haifa University law professor Naama Carmi wrote this week (in Hebrew): A person who engages in civil disobedience has to be willing to accept the legal consequences -- meaning punishment -- "to show that disobeying the law takes place within the bounds of general loyalty to the law."

Unless there's a plea bargain, a judge may have to balance the illegality and the moral courage of Kam's act. It won't be easy, especially if Kam falls victim to the sentry syndrome and stands alone in judgment. Leniency is in order, but I'm not optimistic.

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