When secrets are leaked
JERUSALEM — If Israeli Prime Minister Ariel Sharon's controversial half-century career as a military and political leader comes to an inglorious end with a corruption indictment, his fall could have much to do with a self-styled whistle-blower named Liora Glatt-Bercovitch.
The actions of Ms. Glatt-Bercovitch, a veteran state attorney, have brought to the fore for Israelis difficult questions about the ethics of leaking by public servants. Her being placed on trial by the state in a reversal of the role she has played in prosecuting cases has generated a lively debate over when it is proper to leak, particularly under what conditions disclosing information does strengthen democracy or alternatively whether it violates public trust in public servants and undermines the democratic system.
In addition to its implications for ethical norms, there are high political stakes here. Mr. Sharon, serving his second term, is currently on the defensive about investigations into two scandals, the Greek Island Affair in which the attorney general is currently weighing an indictment against him for taking bribes to advance a tourism project, and the Cyril Kern Affair, next in line for a possible indictment. It allegedly involves bribe-taking from a South Africa-based businessman, Cyril Kern, to help Sharon repay campaign contributions deemed illegal by Israel's comptroller general.
It was in the Cyril Kern Affair investigation where Glatt-Bercovitch took action that led to her indictment and spurred the debate that cuts to the heart of checks and balances in Israel. The indictment charges she revealed information that came to her during public service and breached public trust.
Frustrated that the public - on the eve of prime ministerial and Knesset elections slated for February 2003 - was unaware that a corruption investigation was under way against Sharon, she acknowledges that she called Baruch Kraa, a reporter at the newspaper Haaretz, and suggested they meet in an inconspicuous place: the emergency room of a Tel Aviv hospital.
There she handed Mr. Kraa a potentially damning document - a copy of the request to South Africa for assistance in probing Mr. Kern's activities so as to push forward the investigation against Sharon. Haaretz published the revelations about the investigation on its front page, and the Cyril Kern Affair erupted into the public domain. It had little effect on the election, however, with Sharon trouncing his Labor Party opponent.
In democracies, leaks are as old as the idea of a free press that checks the power of the government. Daniel Ellsberg leaking the Pentagon Papers and Deep Throat's role during the Watergate scandal helped shape the course of modern American political history. How Israeli history views Glatt-Bercovitch will probably depend on whether Sharon is indicted. Her lawyers say the antileak law, if rigorously applied, is incompatible with democracy and has only rarely been applied in Israel. Her action, they say, actually upheld public trust in law enforcement.
Attorney General Elyakim Rubinstein insisted that her leak was grave because it was, in his view, undertaken for political reasons, a desire to bring down the conservative government of Sharon. Glatt-Bercovitch's lawyers deny any political motive and say she took the action with a "heavy heart" after running up against repeated stonewalling while trying to advance the investigation. If anything, they say, what she did should uphold public trust in the judiciary.
"She saw a situation which she evaluated as contradicting the basic tenet of democracy, the public's right to know," says her lawyer, Jacques Chen. "In the whole judicial history of Israel, this was the first case [where] the public did not know there was a personal investigation of corruption against the prime minister."
Moshe Negbi, a legal commentator who recently wrote a book about deteriorating public norms in Israel, says: "This is a classic case of a leak that strengthens democracy. There is a vital interest that the public know the prime minister is suspected of criminality, especially before elections. It is also important that the public know there is no coverup in the judicial establishment. Equality of everyone, including a prime minister, before the law can only exist if the law enforcement authorities know that the public knows about this case, so the case cannot be closed without the public being aware of it. And without providing explanations."
Ira Sharkansky, a political scientist at the Hebrew University and former adviser to the state comptroller, sees Glatt-Bercovitch as anything but a hero.
"Public servants in Israel sign a Draconian official secrets act which says you leak nothing," he says. "For me, the bottom line of this case is that it was so overtly political, concerning a leading political figure on the eve of an election. This makes it smell very bad.
"My understanding of the Israeli judicial system and the state attorney's office is that it is highly professional and not serving political masters. Anyone who thinks he has to leak something from the state attorney's office to save the system itself is thinking something incredible. People in the judicial system are expected to respect that system more than other bureaucrats. She broke the law from within the judicial system."
When, then, is it proper to leak?
"If I had good evidence my superiors were lying," says Mr. Sharkansky. "If they had a hidden agenda which was dangerous to human life or the democratic process."
Mr. Negbi gives wide leeway to leakers. He is worried that the attorney general's tough reaction to the leak, including not only the prosecution of Glatt-Bercovitch but also a lightning seizure of records of Kraa's telephone calls that led to her being caught, will deter whistle-blowers. "I do not justify transgressing the law, but there will not be democracy without leaks," he says. "You need to bring the press into the picture."