Between the lines: Gagging on the PM probe gag order
There are many problematic aspects to this affair; one is the unprecedented court order.
By CALEV BEN-DAVIDmazuz 88(photo credit: )
'We in the police are acting with a sole consideration in mind - the law and the rule of law. The good of the investigation takes precedence over the public's right to know - I know what I'm talking about."
That was Insp.-Gen. David "Dudi" Cohen speaking this week about the gag order imposed on the latest corruption investigation into Prime Minister Ehud Olmert.
The police chief better know what he's talking about, although comments bordering on arrogance like that one suggest otherwise.
Certainly, if when the facts behind this case are made public, they do not appear to justify a hugely embarrassing interrogation of the PM just days before the nation celebrates its 60th anniversary - if there is no fire behind the considerable smoke that is already swirling around this investigation - it will be Cohen and the police who will end up burned.
There are many problematic aspects to this affair, politically and legally; the one that concerns us here is the unprecedented court order barring journalistic outlets from revealing details of the case.
As a more judicious statement released this week by the police and State Attorney's Office noted: "We are well aware of the public's interest and need to receive information regarding the ongoing investigation against the prime minister. Indeed, a situation wherein a presiding prime minister is being investigated under advisement without any information being released to the public, not even a general outline of the nature of the suspicions against those being investigated, raises complexities on a public and judicial-constitutional level; this is very clear."
No kidding. Let's make it even clearer. Such gag orders are by no means exceptional in this country, and generally are used in two circumstances. The first is when freedom of the press collides with the individual's right to privacy. The most common example of this in legal proceedings involves sexual crimes in which the names of victims are withheld, or in any case involving minors.
The second, and the one as noted above relevant in this instance, is when exposure of certain details might hinder the course of a criminal investigation. But when the target of that inquiry is a public figure facing alleged corruption accusations, this consideration must always be weighed against the public's "right to know" - and the more prominent the figure, naturally, the greater that right.
When it involves no less than the prime minister, then the circumstances must be truly exceptional to justify this type of censorship, even temporarily.
We won't be able to fairly judge if that is the case here until the full story emerges. Still, this investigation has already been compromised. If the police are asking the media to exercise maximum discretion in this instance, or asking the courts to impose it on them, then it is incumbent upon law enforcement officials to do the same - and unfortunately, they haven't.
On Thursday night, a leak from an official source ended up tipping Channel 2 about the sudden interrogation sprung on Olmert the following afternoon. Since then, there have been a number of "senior police sources" quoted in the media declaring the seriousness of the accusations against the prime minister, the strength of the evidence against him and suggesting that a police recommendation for a criminal indictment is likely to be in the works.
The result is just about the worst-case scenario for this type of investigation; a deluge of media coverage declaring that this is a matter serious enough to bring down the PM and maybe his government as well, but none of the facts that would allow the public to arrive at an informed opinion about the matter.
Local media outlets were certainly right, then, to petition the High Court of Justice this week to get the gag order lifted. It is regrettable that the court decided to allow the order to stand at least until Sunday.
This is especially so after the New York Post and other foreign media outlets on Tuesday published various details about the investigation, including the name of the foreign national who is reputedly the key witness in the investigation. It is absurd that in a case that does not involve an immediate threat to national security, the Israeli media is barred from publishing information freely available to Israeli citizens on the Internet and foreign news channels.
Especially ridiculous were claims by a police spokesperson that lifting the news ban right before Remembrance Day would be inappropriate, because it would distract the nation from mourning. If that is the case, why didn't the police put off its interrogation of the PM for one week, or at least carry it out with the discretion it required? And even if it had, restricting basic constitutional press freedoms on the basis of this kind of consideration is certainly not a decision the police or Justice Ministry should be making.
It sometimes appears that the police and State Attorney's Office utilize gag orders, which really should be a very exceptional legal tool, largely as a means of making life easier for themselves during the course of difficult investigations. Even if this were not so, they can't have it both ways; if the police want to silence the media, they've got to first keep their own mouths shut and avoid the kind of leaks that frequently bedevil official inquiries of this sort.
A useful comparison can be made here with the United States, where freedom of the press is a more strongly enshrined right. That doesn't mean though that journalists have a free hand when it comes to reporting on criminal investigations. American prosecutors always have the option of convening a grand jury to collect evidence, and leaking testimony from that proceeding is considered a very serious felony indeed.
What's more, the landmark US Supreme Court decision Branzburg v. Hayes held that journalists cannot conceal the identity of sources from a grand jury investigation and face possible imprisonment if they do, which is what happened to New York Times reporter Judith Miller in the Plame-gate affair.
Obviously, while such a system can't be transferred here due to the differences in our legal system, the police have a responsibility to first police themselves before they try to limit the press from doing its job. Very rarely does one hear of police or legal officials being reprimanded for talking out of line to the media, though it happens all the time.
As a journalist, I can't say I'm entirely unhappy about that, since my main concern is that information be made public. But gag orders are certainly a worse solution than plugging official leaks, especially during criminal investigations in which media reports can undermine the presumption of innocence.
If the target here were any political figure other than Olmert - who has already lost much of the public's confidence in regards to corruption issues due to the numerous investigations already under way against him and some of his closest associates - there would probably be a much bigger public outcry over the way this matter has been handled.
Hopefully, though, this incident will finally generate a sufficient enough backlash to rein the abuse of this tool by the police and State Attorney's Office. The cat's already out of this bag, and rather than gagging on a gag order that looks like judicial overreach, let's get the facts here out in the plain light of day.
Calev@jpost.com
