Deliberation on the petition submitted by ACRI

The Association for Civil Rights in Israel (ACRI)

Tomorrow, the High Court of Justice will deliberate on the petition submitted by ACRI:

To demand that researchers be permitted access to IDF Archive material

The IDF Archive is illegitimately denying access to important information, whose exposure in no way threatens the security of the State, discriminating between researchers; deliberately causing the perversion of historical research and the collective memory; and undermining public debate in Israel

Tomorrow (Wednesday 18.4.07) at 11:30 the High Court of Justice will deliberate, for the first time, on the petition submitted by ACRI two years ago in the name of researcher and journalist, Gershom Gorenberg, against the IDF Archive and the Ministry of Defense. In the petition, ACRI demands that Mr. Gorenberg be granted access to archive material that he requires for his research, and that the information contained in the archive be made available to anybody who requires it, as long as its disclosure does not present a real threat to the security of the State. The Court was also asked to cancel the sweeping limitations that are included in the regulations that govern access to archive material, and to order the authorities to publish the regulations and criteria that determine which archive material is to be withheld from the public. Finally, the Court was asked to prohibit the archive authorities from including, as part of the “security considerations”, issues such as: potential damage to the image of the State or public figures, or the potential for causing political conflict. The petition, which is directed against the Director of the IDF Archive, the committee in charge of certifying researchers to access the archive, and the Prime Minister (who dictates the regulations by which the Archive is managed), was submitted by ACRI Attorney Avner Pinchuk, and will be heard by High Court Justices, Eliezer Rivlin, Ayala Procaccia and Uzi Vogelman. Two of the Justices, Eliezer Rivlin and Ayala Procaccia, are also members of the panel of judges that is currently deliberating on the question of whether or not to publish the protocols of the Winograd Committee (the State committee that was appointed to examine the alleged mismanagement of the Second Lebanon War). This issue, like the aforementioned, pivots around the right of the public to know and the importance of making information public on issues that are central to public debate.

Gershom Gorenberg is a researcher and a journalist who is, among other things, researching Israeli settlement in the Occupied Territories, and recently published a book entitled, The Accidental Empire: Israel and the Birth of the Settlements 1967-1977. Approximately three and a half years ago Gorenberg submitted a formal request to the IDF Archive in which he requested access to archive material relating to the beginning of the settlement movement, such as, documents relating to the meetings between the former Ministers of Defense, Moshe Dayan and Shimon Peres, and settler leaders in Hebron and Sebastia, and material relating to the expulsion of Bedouin residents from northern Sinai during Ariel Sharon’s term as Head of Southern Command.

Gorenberg’s request was rejected and he was not even allowed access to the indexes or the full list of the relevant files in the archive. He was informed that the material he requested is restricted for 50 years, and that no deviation from this restriction is permissible. Even when he limited his request and excluded any topics that were clearly militaristic, archive officials still denied his request. Mr. Gorenberg was told by the archive Director that “all material related to the subject of settlement in the Occupied Territories is part of a very problematic domain of negotiations with Palestinians” and that “...these are very sensitive and problematic subjects and I am sure that you would not want to be the one to disclose them”.

Attorney Pinchuk notes in the petition that this is not an isolated incident and that a review of the State Comptroller’s Reports reveal a dismal record of the archive’s management which includes: unjustified denial of access – for security or other reasons – to archive material; discrimination between researchers who have requested access to material; the imposition of bureaucratic obstacles; and other similar phenomenon.

Attorney Pinchuk makes clear in the petition that the issues in question are freedom of information and the legal right to know, and that the serious limitations placed on access to archive material limits the right to know both in the case of the researcher and the public at large. The resultant effect is the perversion of historical research, the collective memory, and the undermining of democratic public debate on dilemmas that are central to Israeli society. Archive officials, he further emphasizes, arrogate to themselves the power to determine what is good for the citizen to know, and thus – what is good for the citizen to think. He also notes, that even though the Minister of Defense issued an order 20 years ago to shorten the period of classification to 30 years, security related documents are still subject to automatic and arbitrary classification for 50 years, and in fact many documents remain classified for many more. The Sate Comptroller, the petition states, warned in a report that was published in 2000, that the principle by which the archive authorities in charge of restricting information work is “not to disclose documents unless there is no choice” – which contravenes the prescribed method of running a professional archive.

The petition also challenges the “certified researcher” arrangement, according to which the archive authorities decide which researchers are allowed access to the materials in the archive. The petition further claims – following past claims by the State Comptroller – that the archive does not treat all researchers who submit requests equally, and that in practice this arrangement has converted the legal right to know into a privilege that is extended solely to members of the security apparatus and researchers that are favored by them. Moreover, from the moment a researcher is defined as “certified” he/she if forced to agree to archive officials having control over his/her research, including sections whose source is not the archive.

ACRI further emphasizes the fact that the right to know is a basic legal right that should be related to just as seriously, or even more so, as freedom of expression. Restricted permission to access materials results in the creation of “pirated” information channels and to the unchecked leaking of information. The open flow of information is also a guarantee of security: a country that works in the dark looses the faith of its citizens, and the democratic regime is weakened. The restrictions on the right to access the archives, Attorney Pinchuk adds, should be as limited as possible and a classified period of 50 years is unreasonable and disproportionate. Preventing access to information, merely because it is liable to provoke political debate is illegitimate and tainted by a hidden agenda. Furthermore, it is precisely because the information is so vital to the public debate of issues that relate to existential questions, that the IDF Archive should act with the utmost caution before deciding to restrict access to it.

From the response that was submitted by the State Attorney’s office in lieu of tomorrow’s hearing, it is apparent that the State has withdrawn slightly from its sweeping denial of access, and that the archive authorities intend to grant Mr. Gorenberg access to some of the documents he requested. However, he is still being denied access to the majority of the material for no justifiable reason. ACRI further states that a situation in which a researcher is forced to wait years, and even undertake legal proceedings in order to gain access to a small portion of the documentation they require to carry out their research, when there is no substantive security impediment, purveys a rather sad message to the community of researchers and the public as a whole. Furthermore, as a result of the petition’s submission, the IDF Archive published new regulations, which relate to the accessing of materials and the granting of the status of “certified researcher”. However, these regulations, following changes in the wording, do not promise any substantive changes to the level of access to historical material that is to be granted to researchers and the general public.

ENDS

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