The National Council of Provinces could learn a few things from events in Israel as it finalises changes to the Protection of State Information Bill.
As the National Council of Provinces works on a final round of changes to the Protection of State Information Bill, they would do well to pay heed to events in Israel this week, which demonstrate just how inimical to democracy such legislation can be.
Uri Blau, an investigative journalist at the respected newspaper Haaretz, in 2008 published a story detailing how the Israeli Defense Force targeted for assassination Ziad Subahi Mahmad Malaisha and Ibrahim Ahmed Abd al-Latif Abed, members of Islamic Jihad who were believed to be actively planning terror attacks. The assassinations took place in apparent defiance of a high court order which restricted the circumstances under which the IDF could carry out its policy of “targeted killing”.
The story set out how the hit was planned, including how senior IDF officers discussed the acceptability of civilian deaths, and the need to delay in order to avoid causing diplomatic embarrassment during the visit of a senior American official.
It also suggested that because the men were in the West Bank, rather than Gaza, they could have been captured instead of being killed.
In other words it was a classic case of investigative journalism in the public interest, revealing that the IDF had been dishonest when told the public about the circumstances surrounding the killings, and that it was flouting a court ruling.
Blau was able to tell the story because he had been handed classified documents by a former IDF conscript, Anat Kamm, who herself has already been sentenced to four-and-a-half years in jail.
According Haaretz, Blau is not charged with an espionage offence per se. That seems to be because of what the justice department described as “the need to restrain in the enforcement policy in order to preserve the Israeli press as a free press that does its job”.
Instead he is charged with the possession of classified documents, an offence mirrored in our homegrown Protection of State Information Bill.
Haaretz quotes a statement from the justice department saying, “the attorney general believes – based on the positions ... of the state prosecutor’s office, the Shin Bet security service and Israel Police – that this case is an extreme one in terms of the severity of Blau’s actions”.
[Blau] “betrayed his duty – and later his commitment before the state – to cease possession of them”, adding he “could have easily prevented harm to Israel’s security without hurting his sources ... the potential damage of possessing the documents … was immense.”
Like South Africa’s Protection of State Information Bill, Israeli law contemplates lengthy jail terms for the possession of classified information. Just how using these charges against a journalist demonstrates commitment to a free press, Israel’s government will have to explain.
And if the ANC pushes through the Protection of State Information Bill without an effective public interest defence and other important improvements, the party will have to explain why they are imposing on democratic South Africa the kind of legislation that is being used to buttress the Israeli security state that they so often criticise.