Fighting for Israel’s Secret Settlement Documents

Nearly six years ago I visited the Israel Defense Forces Archives for the first time. I was starting to excavate the early history of Israeli settlement in the occupied territories, and I expected the army’s depository to be a rich source of evidence. Not only have the territories been under IDF rule since 1967, the papers of former Defense Ministers Moshe Dayan and Shimon Peres are in the archive.

I knew that the defense documents were officially classified for 50 years, but other researchers had been allowed to see more recent material, even from wartime. Surely what I was seeking was less sensitive.

My mistake. What I thought would be a pro forma introductory conversation with the archives director was actually the first step in a long legal battle. Even the catalogues of the files I wanted were classified. The archives director suggested I apply to be an “authorized researcher,” which would allow me to see material pre-selected for me. I applied and was turned down—twice.

So I decided to go to the Supreme Court. In Israel, this wasn’t crazy. A unique part of Israeli democracy is that legal challenges to executive actions go directly to the Supreme Court. Much of Israeli civil rights law has been shaped in such cases. So I felt it was a civic duty to petition the Court, a kind of secular pilgrimage that a person should perform once in a lifetime. Asserting the public’s right to know its past seemed like the right circumstances. The Association for Civil Rights in Israel agreed and chose one of its superb attorneys, Avner Pinchuk, to represent me.

The short version of how the case played out is that the state made small concessions over a long time. Its strategy apparently was to reveal the absolute minimum necessary in order to evade a precedent-setting decision that would loosen the rules of official secrecy.

I was allowed to see a catalogue—with names of some files blacked out. I was allowed to see some files I requested, at great delay, with many documents removed. Why was the state so determined to keep 35-year-old memos under wraps?

Just before we filed suit, the archives director explained to me why I should drop my demands. “The settlers didn’t enter a vacuum, and this certainly touches on contacts with the Palestinians,” she said. “These are very sensitive, very problematic matters, and I’m sure you wouldn’t want to be the one to expose them.” I didn’t bother replying that, actually, ma’am, a journalist’s calling is to expose sensitive matters—and that any historical facts that could affect negotiations deserve to be part of the Israeli public’s debate on where those talks should lead.

For instance, one memorandum that I was finally allowed to see dates from September 27, 1967, the day that the first West Bank settlement, Kfar Etzion, was established. The Foreign Ministry legal counsel had already warned that civilian settlement in the territories violated international law. So for public purposes, Kfar Etzion was described as a paramilitary outpost belonging to the IDF. The army memorandum states that this portrayal is a “cover story” and that the settlement will have no connection to the IDF. It’s a written order to lie to the public.

For Palestinians, what matters most is that the settlements were built and keep growing. But Israelis’ views on the settlements’ legitimacy and future could change if they learn about the deceptions that were part of the process. The government’s effort to keep settlement documents secret suggests that it regards them as a political bombshell.

But exaggerated government secrecy isn’t unique to Israel. In any country, both defense and diplomacy require a measure of stealth. Officers and officials develop a culture of treating information as something that belongs to them. The public shouldn’t be allowed to second guess what the pros are doing. Yet in a democracy, the professionals work for the public. Citizens have a duty to second guess.

Earlier this year, nearly five years after we filed suit, the ruling arrived. According to Chief Justice Dorit Beinisch, I’d already received much of what I’d demanded from the archive, so the Court had no reason to grant further redress. In short, I’d already won.

The lawsuit did gain me access to some important documents, though many more remain out of reach. For the first time, the archives published criteria for approving “authorized researchers.” As Beinisch noted, the new standards for declassification don’t include “damage to the state’s image” as a justification for secrecy.

So why don’t I lift my arms and roar? Why don’t I feel victory? Avner, my lawyer and mentor, explains that I’m not exuberant because the Court didn’t make a ringing decision on when the public’s right to know trumps secrecy. And yet, he reassures me patiently, the ruling does provide ammunition for future fights with the bureaucracy of silence.

In other words, this is a long march, not a one-time pilgrimage.

Gershom Gorenberg is the author of The Accidental Empire: Israel and the Birth of the Settlements, 1967-1977 and a senior correspondent for The American Prospect. He blogs at SouthJerusalem.com.