On Sunday, press freedom in Israel effectively ended, at least for some.
Sunday evening, the police and State Attorney’s Office divulged that they are conducting a criminal investigation against Prime Minister Benjamin Netanyahu’s top media advisors Jonatan Urich and Ofer Golan. The two are suspects and police investigators have seized their cellphones.
Then on Monday, police revealed that two other top media advisors to the prime minister, Topaz Luk and Israel Einhorn are also under criminal probe and that their cellular phones have also been seized.
The four are suspected of sending a jalopy to the home of Shlomo Filber, a former top Netanyahu adviser turned state witness against him in Case 4,000, one of the three criminal investigations being conducted against Netanyahu. The car was sent to Filber’s residence in August, ahead of the September Knesset election.
It was equipped with a loudspeaker. Likud activists at the scene ran a recorded message through the speaker appealing to Filber not to betray Netanyahu and filmed their actions as a campaign stunt.
Filber reportedly alerted the police to the event. But, according to his lawyer, he didn’t file a criminal complaint, because, as his lawyer said, he didn’t feel harassed.
All the same, law enforcement decided to open a criminal investigation. Netanyahu’s top media advisers are being accused of witness tampering, a felony that carries a 3-year prison sentence.
The legal viability of the case is an open question. But the undeniable message of the decision to seize the spokesmen’s phones is that as far as Israel’s law enforcement agencies are concerned, freedom of the press is finished.
Earlier this month, Israel Hayom revealed that just before Attorney General Avichai Mandelblit concluded his 4-day pre-indictment hearing for Netanyahu, two senior American jurists, Nathan Lewin and Prof. Avi Bell were ushered into the hearing room. Mandelblit is expected to decide in the next month whether he will indict Netanyahu in the three cases code-named Case 1000, Case 2000 and Case 4000.
Case 1,000 relates to cigars and champagne that Netanyahu allegedly received as gifts from wealthy friends. It is the least serious of the cases.
Cases 2,000 and 4,000, which are considered more serious, relate to Netanyahu’s dealings with owners of media organizations. They are based on a legal theory advocated by State Attorney Shai Nitzan. Nitzan claims that the provision of positive coverage to politicians by news organizations is a form of bribery.
Lewin and Bell presented the opposite claim. Bell and Lewin warned Mandelblit that if he adopts Nitzan’s view and defines the provision of positive coverage to a public servant by a media company as bribery, he will strike a fatal blow at the freedom of the press and freedom of speech in Israel. Indeed, he will undermine the very foundations of Israeli democracy.
As they explained in their written brief, “Prosecution of the Netanyahu case would signal to journalists and media executives that favorable or damaging publicity about a candidate may be investigated by the police and by prosecutors to determine whether the publicity was a quid exchanged for the quo of official action. If the police and prosecutors are empowered to probe the mixed motives of journalists and politicians, they can exercise arbitrary control over essential institutions of democracy.”
Through their latest assault on Netanyahu’s advisers – and the seizure of their cellphones – the State Attorney’s Office and the police are proving the validity of the warning.
In its response to the investigation of Netanyahu’s top advisers and the seizure of their phones, the prime minister’s office reasonably focused on how it affected Netanyahu’s ability to function.
“The goal is clear: to neutralize the prime minister’s capacity to fight for public opinion against a never-ending flood of leaks against him by harming those close to him,” Netanyahu’s office said in a statement.
Although accurate, the statement ignored the main problem with what police and prosecutors have done. Their seizure of the four advisers’ phones is not merely an assault on the advisors and on Netanyahu. It is an attack against everyone who has been in contact with Netanyahu or his advisers. Case 2,000 against Netanyahu is rooted in information the police found while investigating his former bureau chief Ari Harow on unrelated charges.
Other high-profile investigations of public officials have similarly been initiated following the seizure of cellular phones and the incidental finding of unrelated information during the course of the search of their contents.
The advisers’ cellphones document nearly every contact between Netanyahu and the media going back several years.
Every journalist, editor, and media owner that has been in contact with Netanyahu through his advisers has likely corresponded with them. Since all of these communications are now in the hands of police investigators, and since police are operating under Nitzan’s criminal theory of relations between politicians and the media, every reporter, editor, and media owner who has been in contact with Netanyahu through his spokespeople has to be concerned that he is in the crosshairs of police investigators and state prosecutors. At any moment those reporters, editors and media owners may receive a summons to report for police questioning and expected to account for their decision to adopt a positive approach to Netanyahu.
The investigators insist they can be trusted. They have sealed the phones away and will only search them if they receive permission from a judge to do so. They say and only look for information related specifically to the charges under investigation. But these protestations are impossible to countenance.
Since the State Attorney’s Office is operating under Nitzan’s authoritarian view that relations between the media and politicians are inherently suspect and criminal – a theory, which as Bell and Lewin warned, has been rejected by every other democracy on earth – it is reasonable to assume that some Israeli judges agree with them.
Judges who agree that a conversation between a reporter and a politician is evidence of bribery will happily sign a search warrant and unlock every communication Netanyahu has had with every journalist covering him for the past four years.
Moreover, the police themselves have already shown that their promises are empty.
On Monday evening it was reported that Urich’s attorney sent a letter of complaint to Mandelblit claiming that during the course of Urich’s investigation, a police investigator asked Urich to unlock his phone and failed to advise him that he had the right to refuse her request.
The investigator then allegedly conducted a wide-ranging search of his phone. She allegedly copied information from his phone to her phone and sent it to a Telegram chat group of police investigators regarding Case 4,000. In other words, in Urich’s presence, the police investigator initiated a fishing expedition geared not towards investigating his alleged harassment of Filber but towards finding evidence for an unrelated investigation of Netanyahu.
The police acknowledged the veracity of Urich’s allegations, and similar ones launched by Golan’s attorney on Tuesday. Their illegal search of the two men’s phones, along with the reasonable assumption that investigators will have no problem finding a compliant judge, makes clear that the seizure of the spokesmens’ cellphones was a direct assault on press freedom in Israel.
From the moment investigators got their hands on the phones, every reporter, editor, and media executive who has supported Netanyahu in any way is liable to be called in for police questioning.
Well, actually, not every journalist who has been in touch with them needs to worry.
One of the more disturbing things that we have learned about press freedom in Israel over the past generation is that most senior journalists and the most powerful media organizations in Israel are willing to sacrifice the freedom of expression of a large segment of the population and support the closure of media outlets identified with the political Right.
This authoritarian tendency stood behind the mass media’s lockstep support for a blatantly political Supreme Court ruling in 2002 to shut down the only right-wing radio station in Israel at the time – Arutz 7.
In 2013, most media outlets and senior journalists enthusiastically supported draft legislation of the so-called Israel Hayom Bill whose sole purpose was to shut down the largest circulation daily newspaper in Israel because it was right of center.
And this year, the same mass media outlets and senior reporters supported a regulatory bid to shut down Channel 20 due to its right-wing outlook.
Today, the same media organizations and reporters that thrilled at Arutz 7’s closure and eagerly supported shutting down Israel Hayom and Channel 20 are happily reporting and justifying the investigation of Netanyahu’s spokesmen and the seizure of their cellphones. They broadcast and write in support of Nitzan’s plan to criminalize media relations with politicians.
Their readiness to support blatant assaults on press freedom in Israel is not surprising. These “enlightened” media bigwigs live comfortably with selective law enforcement and discriminatory legislation enacted by equally “enlightened” prosecutors, police investigators and justices in support of their common world view. That common worldview is based on their shared visceral hatred of the political Right.
For the “enlightened” journalists and prosecutors, Israel will always remain a democracy with press freedom. It is only for their “unenlightened” rivals on the political Right that Israel is becoming an autocracy in which, as in Turkey, journalists can be questioned for the content of their articles.
And that’s just fine with them.