Israeli High Court Rules Against Censor : Landmark Decision Could Lead to More Freedom for Journalists

Israel’s highest court has overturned censorship of a news story critical of the country’s top intelligence chief, a decision that is widely viewed as an important opening for the publication of security subjects here.

The decision marked the first time the Supreme Court has overruled the military censor. It followed a six-month battle by publishers of the Tel Aviv weekly Ha-ir to publish an article about the director of the Mossad, the leading Israeli intelligence agency.

The Mossad director, whose name is kept secret by law, has served during six of the most tumultuous years in the agency’s history and is scheduled to retire soon, a spokesman for Prime Minister Yitzhak Shamir said Wednesday. The spokesman denied that criticisms in the article have anything to do with the official’s imminent exit. The article is scheduled to be published Friday.

In the decision issued Tuesday, a three-judge panel of the court wrote: “The way to achieve a balance between security and freedom of speech is to . . . apply restrictions only when there is absolute certainty of a real threat to the country’s security and when no alternative is available.

“Every effort should be made to minimize the possibility that security considerations will harm freedom of speech.”

The court affirmed the basic principle of censorship by banning publication of the name or description of the Mossad chief, in order to protect him.

Israeli observers pointed out two significant aspects to the decision: that it opened the Mossad, a holy of holies among Israel’s four intelligence agencies, to criticism; and that the Supreme Court was creating a new avenue of appeal for Israeli journalists trying to get around censorship and expand the area of subjects about which they can write.

A Role for Civilians

Until the ruling, the military itself was the sole arbiter of appeals. Sometimes the army ruled in favor of journalists, sometimes against, but in every case the matter was kept within the military system; now, civilians have the final say.

“It is obvious that if someone publishes troop strengths in the Golan Heights, the censor will come down on him,” noted Zeev Chafetz, a former government spokesman. “But now, just calling the Mossad director a jerk is no longer censorable.”

“Norms have changed,” Shalom Rosenfeld, the head of the journalism department of Tel Aviv University, told Israel Radio. “We no longer accept every decision of the Mossad with closed eyes as if it had a monopoly on wisdom, knowledge and responsibility.”

Rosenfeld noted that the press has become skeptical of the wisdom of intelligence agencies. “We saw too many times how our institutions were surprised by events, and too many times we saw mistakes and blunders,” he said. “That is why we no longer jump automatically when the word security is mentioned.”

Added Moseh Negbi, a legal affairs expert: “I expect that following this ruling, newspapers will petition the court more often.”

The case originated when a reporter for Ha-ir brought his article on the Mossad director to the military censor, as required by law. The censor, Brig. Gen. Yitzhak Shani, rejected the article for publication.

The author rewrote the piece several times and finally, on Aug. 23, a revised version was approved--but only after the censor made 32 more deletions. Ha-ir Editor Meir Shnitzer decided to appeal to the Supreme Court.

In court, Shani, the censor, argued that the attack on the Mossad chief weakened the agency as a whole and, with it, Israel’s security.

The article held the Mossad director responsible for recent debacles, including the Jonathan Jay Pollard spy case in the United States, in which an American naval analyst passed secrets from the United States to Israel, as well as the discovery of Israeli-made false passports by West German authorities and actions that led to the expulsion of Mossad agents from Britain.

In the British case, London newspapers reported that Mossad agents were trying to stir up rivalries among Muslim groups based in Britain and linked the Mossad to the killing of a Palestinian cartoonist.

The Mossad chief is also criticized in the article for guarding his position more carefully than the smooth functioning of his agency.

Israel Radio reported that he will be replaced by either someone from inside the Mossad or a “senior” outsider. The new spymaster must be approved by both Prime Minister Yitzhak Shamir and Finance Minister Shimon Peres, who head Likud and Labor, the two main parties in Israel’s coalition.

All reporters working in Israel, foreign and domestic, are supposed to submit articles dealing with security and military matters to the censor, even if the stories are based on public sources such as parliamentary reports or defense briefings.

When editors and reporters here fail to follow the rules, the censor can go so far as to close down the newspaper. Many newspapers censor themselves in an effort to please the censor, Israeli journalists say.

In practice, some foreign reporters show only their most sensitive security and military articles to the censors. But if, after publication, their work is deemed to have breached censorship, they are vulnerable to having their credentials lifted and may even be subject to criminal prosecution. Last year, two reporters from the Reuters news service lost their credentials for a time after identifying Israeli units that they described as “death squads” utilized against Arab rebels in the occupied West Bank and Gaza Strip.

Israeli observers point out that foreigners can simply pass on the forbidden information to their offices abroad, where it can be printed under another name, and the censor has no way to stop it.

“Censorship was killed by the direct-dial telephone,” said Chafetz, the former government spokesman.

Nonetheless, censorship will live on, predicted Ariel Levite, a military intelligence expert at Tel Aviv University.

“It’s not over. Journalists are still going to be restrained. Censorship will still be around to restrain them from publishing sensitive information,” he said.

Late Wednesday night, when a wire service reporter went to Brig. Gen. Shani’s office to ask for a comment, the censor refused to say anything other than to remind the reporter that he must bring in his story before sending it out.