This House believes that the leaking of military documents by Anat Kamm was justified

Anat Kamm was correct when she said “I kept thinking that history tends to forgive people who expose war crimes.”[1]

Maj.-Gen. Yair Naveh was documented as saying “This is an arrest operation… But in case [the soldiers] identify one of the senior leaders of the Islamic Jihad, Walid Obeid, Ziad Malaisha, Adham Yunis, they have permission to open fire in accordance with their appraisal of the situation during the operation.”[2]  As attorney Michael Sfard states "In other words, the use of words referring to arrest when in fact there is no real intention of carrying out an arrest, but the reference is to assassination."[3] This was despite a supreme court ruling in 2006 that militants must be detained.[4] Kamm may be incorrect when considering this action a war crime as Israel was not at war at the time however assassination is clearly illegal under international law.[5]

The press has four roles in a democracy; holding power to account, highlighting issues that need attention, educating citizens, and connecting people to create civil society.[6] In this particular case all of the first three roles were clearly being performed.

[1] Lutvitch, Vered, ‘Kam: History forgives those who expose war crimes’, Ynet News.com, 12 April 2010.

[2] Izenberg, Dan, ‘Stamp of approval from attorney-general’, Jerusalem Post, 13 April 2010.

[3] Blau, Uri, ‘License to kill’, Haaretz, 27 November 2008.

[4] Guarnieri, Mya, ‘The killing of Zuhair al-Qaissi exposes Israel’s attitude to its supreme court’, guardian.co.uk, 14 March 2012.

[5] Wachtel, Howard A., ‘Targeting Osama Bin Ladin: Examining the Legality of Assassination as a tool of U.S. Foreign Policy’, Duke Law Journal, Vol.55, No.677, 2005, p.677.

[6] Hume, Ellen, ‘Freedom of the Press’, Issues of Democracy, December 2005.

While it may be a journalist’s job and duty to call the government to account this is not the duty of a soldier who is supposed to be following orders. The soldier’s duty in such a situation would have been to report up the chain of command. As the Judge in the case concluded: "There is no need to steal thousands of classified documents in order to bring 'aspects of IDF operations to the public's attention,' or investigate 'war crimes.' Any independent body given those documents, even by someone like the defendant, has no (security) clearance to afford it the review of such military secrets… There was also no need to give a reporter thousands of sensitive documents without discretion."[1]

[1] Lutvitch, Vered, ‘Kam: History forgives those who expose war crimes’, Ynet News.com, 12 April 2010.

“There were aspects of IDF operations which I thought should be brought to the attention of the public.”[1] Kamm is correct; in any state, but especially in a democracy like Israel, the military is there to protect the state and its people. It is paid for by the people through their taxes. The military is composed of the people through conscription. And as a result what it does is in the name of the people. The accountability of the instruments of the state, including the military, is at the core of what it means to be a democracy. It is therefore essential that the people know what it is doing in their name. Many democracies have laws giving a “right to know” for example the United State’s Freedom of Information Act and First Amendment right of access.[2]

It is therefore in the public interest to expose activities that may be detrimental to the state. In this case the military was exposed doing something it has been specifically ordered not to do by the courts so exposing a military that was disobeying civilian authority.

[1] Collins, Liat, ‘My Word: Questions and secrets’, Jerusalem Post, 5 November 2011.

[2] Papandrea, Mary-Rose, ‘Under Attack: The Public’s Right to Know and the War on Terror’, Boston College Third World Law Journal, Vol.25, Issue 1, pp.35-80.

What exactly is the public interest? It is difficult to define in law as Britain is finding in its enquiry into phone hacking,[1] and individuals disagree.[2] Journalists in particular are likely to be much happier about the idea than the rest of the public because it defends their interest to have a broad interpretation. It should not have been up to either Kamm or Haaretz to define what the public interest is. There are some things that have to be left to the state.

[1] Sabbagh, Dan, ‘Clarification of the ‘public interest’ defence is badly needed’, guardian.co.uk, 8 April 2012.

[2] Elliott, Chris, ‘What do you think ‘public interest’ means?’, guardian.co.uk, 15 May 2012.

States have militaries to protect themselves creating a paradox that “The very institution created to protect the polity is given sufficient power to become a threat to the polity.”[1]  The Military is a powerful institution even in a stable democracy like Israel, it needs to be held to account because it is the institution within a state that has most capability to use force if it wishes. An unaccountable military is a military that is much more likely to engage in coups and other anti-democratic actions. Israel is an unusual case in the west in that it has allowed the boundaries separating government, military and society to become blurred leading to worries of military influence on policy.[2] None the less most of the time we can trust the government to hold the military to account however the only sure guarantee is for everyone to have access to all information that have a very low risk of resulting in lives lost; designs of weapon systems, current deployments or planning for current and future missions.

This transparency should of course be from the top down with the military giving out this information freely as the military is in a position to know what information is still current and may result in lives being lost. However if the military refuses to be transparent on crimes committed then there is a need for individuals to provide that transparency themselves. Cases like Anat Kamm’s which punish attempts by soldiers to call their superiors to account are therefore damaging as it shows that the officers will not be brought to justice but the leaker will be punished.[3] This actively encourages the military to believe it is above the law and is not accountable to the people.

[1] Peter Feaver quoted in Norton, Augustus Richard, and Alfoneh, Ali, ‘The Study of Civil-Military Relations and Civil-Society in the Middle East and North Africa’, in Carsten Jensen (ed.), Developments in Civil-Military relations in the Middle East, pp.7-28, p.7 

[2] Weinraub, Alan, ‘The evolution of istaeli civil-military relations: domestic enablers and the quest for security’, Naval Postgraduate College, December 2009.

[3] Reider, Dimi, ‘In Israel, Press Freedom is under attack’, The New York Times, 31 October 2011.

Yes the military has to be accountable but this does not mean that it is directly accountable to the people. Instead the military is accountable to the civilian leadership of the country who is then in turn accountable to the people. The people designate their politicians; their head of state and government as well as minister of defence to control the most senior members of the military.[1] This means that while the military must be transparent it is only necessary for it to be transparent to the civilian government which is at the top of the chain of command not to the people as a whole.

[1] Feaver, Peter D., Armed Servants Agency, Oversight, and Civil-Military Relations, Harvard University Press, 2005, p.5.

Anat Kamm was correct when she said “I kept thinking that history tends to forgive people who expose war crimes.”[1]

Maj.-Gen. Yair Naveh was documented as saying “This is an arrest operation… But in case [the soldiers] identify one of the senior leaders of the Islamic Jihad, Walid Obeid, Ziad Malaisha, Adham Yunis, they have permission to open fire in accordance with their appraisal of the situation during the operation.”[2]  As attorney Michael Sfard states "In other words, the use of words referring to arrest when in fact there is no real intention of carrying out an arrest, but the reference is to assassination."[3] This was despite a supreme court ruling in 2006 that militants must be detained.[4] Kamm may be incorrect when considering this action a war crime as Israel was not at war at the time however assassination is clearly illegal under international law.[5]

The press has four roles in a democracy; holding power to account, highlighting issues that need attention, educating citizens, and connecting people to create civil society.[6] In this particular case all of the first three roles were clearly being performed.

[1] Lutvitch, Vered, ‘Kam: History forgives those who expose war crimes’, Ynet News.com, 12 April 2010.

[2] Izenberg, Dan, ‘Stamp of approval from attorney-general’, Jerusalem Post, 13 April 2010.

[3] Blau, Uri, ‘License to kill’, Haaretz, 27 November 2008.

[4] Guarnieri, Mya, ‘The killing of Zuhair al-Qaissi exposes Israel’s attitude to its supreme court’, guardian.co.uk, 14 March 2012.

[5] Wachtel, Howard A., ‘Targeting Osama Bin Ladin: Examining the Legality of Assassination as a tool of U.S. Foreign Policy’, Duke Law Journal, Vol.55, No.677, 2005, p.677.

[6] Hume, Ellen, ‘Freedom of the Press’, Issues of Democracy, December 2005.

While it may be a journalist’s job and duty to call the government to account this is not the duty of a soldier who is supposed to be following orders. The soldier’s duty in such a situation would have been to report up the chain of command. As the Judge in the case concluded: "There is no need to steal thousands of classified documents in order to bring 'aspects of IDF operations to the public's attention,' or investigate 'war crimes.' Any independent body given those documents, even by someone like the defendant, has no (security) clearance to afford it the review of such military secrets… There was also no need to give a reporter thousands of sensitive documents without discretion."[1]

[1] Lutvitch, Vered, ‘Kam: History forgives those who expose war crimes’, Ynet News.com, 12 April 2010.

“There were aspects of IDF operations which I thought should be brought to the attention of the public.”[1] Kamm is correct; in any state, but especially in a democracy like Israel, the military is there to protect the state and its people. It is paid for by the people through their taxes. The military is composed of the people through conscription. And as a result what it does is in the name of the people. The accountability of the instruments of the state, including the military, is at the core of what it means to be a democracy. It is therefore essential that the people know what it is doing in their name. Many democracies have laws giving a “right to know” for example the United State’s Freedom of Information Act and First Amendment right of access.[2]

It is therefore in the public interest to expose activities that may be detrimental to the state. In this case the military was exposed doing something it has been specifically ordered not to do by the courts so exposing a military that was disobeying civilian authority.

[1] Collins, Liat, ‘My Word: Questions and secrets’, Jerusalem Post, 5 November 2011.

[2] Papandrea, Mary-Rose, ‘Under Attack: The Public’s Right to Know and the War on Terror’, Boston College Third World Law Journal, Vol.25, Issue 1, pp.35-80.

What exactly is the public interest? It is difficult to define in law as Britain is finding in its enquiry into phone hacking,[1] and individuals disagree.[2] Journalists in particular are likely to be much happier about the idea than the rest of the public because it defends their interest to have a broad interpretation. It should not have been up to either Kamm or Haaretz to define what the public interest is. There are some things that have to be left to the state.

[1] Sabbagh, Dan, ‘Clarification of the ‘public interest’ defence is badly needed’, guardian.co.uk, 8 April 2012.

[2] Elliott, Chris, ‘What do you think ‘public interest’ means?’, guardian.co.uk, 15 May 2012.

States have militaries to protect themselves creating a paradox that “The very institution created to protect the polity is given sufficient power to become a threat to the polity.”[1]  The Military is a powerful institution even in a stable democracy like Israel, it needs to be held to account because it is the institution within a state that has most capability to use force if it wishes. An unaccountable military is a military that is much more likely to engage in coups and other anti-democratic actions. Israel is an unusual case in the west in that it has allowed the boundaries separating government, military and society to become blurred leading to worries of military influence on policy.[2] None the less most of the time we can trust the government to hold the military to account however the only sure guarantee is for everyone to have access to all information that have a very low risk of resulting in lives lost; designs of weapon systems, current deployments or planning for current and future missions.

This transparency should of course be from the top down with the military giving out this information freely as the military is in a position to know what information is still current and may result in lives being lost. However if the military refuses to be transparent on crimes committed then there is a need for individuals to provide that transparency themselves. Cases like Anat Kamm’s which punish attempts by soldiers to call their superiors to account are therefore damaging as it shows that the officers will not be brought to justice but the leaker will be punished.[3] This actively encourages the military to believe it is above the law and is not accountable to the people.

[1] Peter Feaver quoted in Norton, Augustus Richard, and Alfoneh, Ali, ‘The Study of Civil-Military Relations and Civil-Society in the Middle East and North Africa’, in Carsten Jensen (ed.), Developments in Civil-Military relations in the Middle East, pp.7-28, p.7 

[2] Weinraub, Alan, ‘The evolution of istaeli civil-military relations: domestic enablers and the quest for security’, Naval Postgraduate College, December 2009.

[3] Reider, Dimi, ‘In Israel, Press Freedom is under attack’, The New York Times, 31 October 2011.

Yes the military has to be accountable but this does not mean that it is directly accountable to the people. Instead the military is accountable to the civilian leadership of the country who is then in turn accountable to the people. The people designate their politicians; their head of state and government as well as minister of defence to control the most senior members of the military.[1] This means that while the military must be transparent it is only necessary for it to be transparent to the civilian government which is at the top of the chain of command not to the people as a whole.

[1] Feaver, Peter D., Armed Servants Agency, Oversight, and Civil-Military Relations, Harvard University Press, 2005, p.5.

The right to life is the most fundamental right of all. No one should have the right to leak information that might result in someone losing their life. As the documents that Kamm collected included details of IDF deployments and plans for military operations[1] the leaking of this information could clearly have provided terrorists such as Hezbollah or Hamas the opportunity to kill Israeli soldiers. Moreover while the information she gave to Haaretz reporter Uri Blau may not have all been published Kamm herself admitted that she had lost one of the CD’s she copied.[2]

[1] Edelman, Ofra, ‘Tel Aviv court accepts plea bargain in Anat Kamm espionage case’, Haaretz, 6 February 2011.

[2] Lutvitch, Vered, ‘Kam: History forgives those who expose war crimes’, Ynet News.com, 12 April 2010.

This might be a valid argument if the leaked military secrets really were putting lives in danger, but this is not the case in this particular instance. In Israel there is a military censor which newspapers submit articles that might affect national security to and that censor takes out anything it believes to be harmful to state security.[1] All the materials that were published by Haaretz went first through Haaretz’s editors and then this military censor[2] so if there really were any military secrets published that could have put lives in danger the censors were negligent in their job.

[1] Sobelman, Batsheva, ‘Q&A Censorship in Israel: ‘A unique model’’, Los Angeles Times, 3 May 2010.

[2] Reider, Dimi, ‘In Israel, Press Freedom is under attack’, The New York Times, 31 October 2011.

The Security of the Nation comes before other considerations such as the freedom of information. This is especially true in a nation such as Israel which is surrounded by enemies who will take advantage of any information that they can use to damage Israel. Israel’s security situation is aptly described by Yitzhak Rabin as one of “dormant war” that every few years becomes an active conflict.[1] When the state’s survival is potentially at stake as is the case in Israel then individual rights such as freedom of expression and freedom of information have to be subordinated to the greater collective rights of the nation.

[1] Dahan, Michael, ‘National Security and Democracy on the Internet in Israel’, C. Ess and F. Sudweeks (eds). Proceedings Cultural Attitudes Towards Communication and Technology ’98. University of Sydney Australia, 189-192.

Anat Kamm did not leak information that could ever result in the destruction of the Israeli state. Her lawyer argued "It was never her intention to harm the security of the state” and this was accepted by the Israeli state as shown by the plea bargain in which it dropped the charge having the intention to harm the security of the state.[1] If the state’s survival was not at stake then the right to freedom of information clearly applies.

[1] Edelman, Ofra, ‘Tel Aviv court accepts plea bargain in Anat Kamm espionage case’, Haaretz, 6 February 2011.

No individual is empowered to decide for themselves what information should be publicly available and certainly not a 23 year old student. A conscript like Kamm will have little idea of the context, whether operations have taken place, or even often what the information they are leaking means. Without all the facts of each case they are in no position to judge if a particular document is in the public interest. They therefore won’t know the consequences of the information they are leaking which in a military situation could mean lives being lost. This is why militaries have systems for declassifying information; so that when it is done it does not cause any harm.

As Sarah Honig writing in the Jerusalem Post argues “We could kiss our entire national defense good-bye if each and every soldier would do likewise with no guideline but his/her own youthful hubris.”[1]

[1] Honig, Sarah, ‘Another Tack: Loose lips sink ships’, JPost.com, 23 April 2010.

If individuals are never allowed to take action themselves then we are leaving everything up to the state and the military; two institutions that in cases like this have every reason to attempt to suppress the truth. When the state will not take responsibility for its actions then it is right that others should force it to account for its actions and the only way this can be done is through revealing the wrongs the state has done.