The Security Argument

An op-ed published in the Jerusalem Post

ACRI Attorney Lila Margalit, 1st July 2010

Each time a new security affair is exposed here, raising disturbing questions about the extent to which the public’s right to know is protected these days, I console myself with the thought that despite all the particular difficulties and challenges we face, there are still some basic things I can be sure of.

I can be sure that there are no secret arrests or trials, since such things so acutely threaten the foundations of the rule of law as well as public confidence in the justice system that they are simply not acceptable in a free and democratic society.

I can be sure that once a person is arrested – and certainly once he stands trial – under no circumstances will his arrest or imprisonment be shrouded in secrecy, entirely hidden from the public. True, there are exceptional cases where limited secrecy may be justified for a short period, but it is clearly unthinkable for a total blackout to last for years, as an individual is tried, convicted and eventually imprisoned.

TRUE, IN the distant past, several strange episodes were cloaked in total secrecy. The convicted spy Marcus Klingberg was incarcerated for years without anyone knowing about it, and even his family cooperated by hiding his arrest and telling the neighbors all kinds of stories about trips abroad and such. But those affairs were the stuff of other times, practically premodern, when the “security” justification was always a winning card, trumping all other considerations. After all, things have changed since then. Of that I am sure.

And true, recently some problematic cases were revealed, involving arrests and proceedings that took place far from the public eye – Anat Kamm, Ameer Makhoul, Omar Said and Shirin Issawi to name a few.

But these troublesome cases aroused a strong public response precisely because in the end, I am sure, a democratic country cannot tolerate gag orders forever.

In our democratic society, security and law enforcement agencies serve the public good. Even when necessary security considerations require confidentiality for a short period, the democratic and free public will always demand accountability.

The courts, which review state decisions with extreme care and are well aware of their vital role as guardians of constitutional democracy, may allow a blackout for a limited time, but only in the face of exceptionally worthy considerations, such as the need to allow the completion of investigations or to protect human life.

If, on the other hand, the state were to try to curtail free speech or conceal information for dubious reasons, like a desire to maintain “national morale,” it would undoubtedly be thrown out of the court. This indeed happened when prosecutors tried to impose restrictions on demonstrators against Operation Cast Lead, arguing that they were needed to protect “the morale of the people.”

In an important decision, Judge Ido Druyan rejected this argument outright, emphasizing that “a claim such as ‘damaging morale’ would be better not heard between the walls of a court in a democratic country.” Indeed, it is hard to think of anything more foreign to a democratic state than an attempt to hide information from the public in order to influence public opinion or “shape” it somehow from above. As the Supreme Court stressed back in 1963, “government that takes upon itself the authority to decide what is good for citizens to know ends up deciding what is good for citizens to think; there is no greater contradiction than this to a true democracy, which is not ‘guided from above.’” Free, incisive and thorough debate is the secret to the success of a free society, and is made possible only when the public knows what’s going on and what is being done in its name. Without these protections, we endanger the very process of democratic decisionmaking which forms the foundation of our society.

An ignorant public is not only odious to democracy but a danger to national security – an internal hazard no less dangerous than any external threat.

Of this I am sure.