The philosophy of the secret is antithetical to the highest norm of criminal law. The flirtation of law with “truth” is of no help here. Recruiting the well-ordered and logical universe of the law in order to protect secrets leads to the unavoidable violation of fundamental legal principles, and to the creation of a juridical field dominated by an entirely different physics. Israeli law has created such a field.
Translated into Fnglish by Naveh Frumer
Every secret depends on the following three: uncertainty, the irrelevance of truth, and the irreversibility of being exposed to it. Uncertainty: In order to create margins that are far wider than the kernel of the secret; a kind of buffer zone that, while itself might contain no secret, is nonetheless basking in the warmth of the original one. The irrelevance of truth: So that, on the one hand, censoring the publication of the secret won’t amount to confirming its existence, and on the other hand, so that the biggest secret of all will not be revealed—namely its absence. The irreversibility of being exposed to the secret: Since whoever are exposed themselves turn into receptacles for the secret, and hence become part of it, thereby joining the deterrence and the most powerful defense of the secret—self-censorship.
Whoever comes close to the secret risks falling down Alice’s rabbit-hole, to a wonderland in which a poem can be senseless from start to finish, and a secret can be defined as that which is secret. The attempt to locate the borders of the secret is doomed to fail: The makers of the secret long-since figured out that ever-changing, unclear, and elusive contours serve to bury it so well, that often they themselves cannot tell the secret’s straw men from the secret proper (assuming such a distinction even exists). Travelling in the kingdom of the secret one quickly finds that truth and lie are its equal citizens, equally enjoying the protection of the secret’s guardians. The first lesson in censorship school is that false news can pose a national security risk no lesser and sometimes even greater than true news. As a top figure in the Israeli Censorship told me during a visit to their offices, located in a Tel Aviv office building alongside accounting and law firms, “I don’t care whether the story is true or not.” This implies that the secrecy of the secret has nothing to do with its accuracy, but with its guardians’ belief that its exposure might possess a reality-generating power. (One doubts whether they realize this is also the significance of keeping it a secret). Hence we find that, without any academic, philosophical background, Military Censorship officers come up with postmodern views that question the pertinence of the distinction between true and false, that place every secret on wheels that are perpetually in motion, that generate a second-order discourse about the very existence of the secret, and that, most significantly, generate a power-circle of those who have a hold on the secret—which might or might not exist.
Should our scout nonetheless find its way beyond the secret’s lines, he or she will be transformed forever. Like Israel’s water reservoir, the secret too has upper and lower red lines, below which there are always additional black lines, and perhaps even—but this is yet another secret we will never know for sure—silver of gold lines, beyond which only the High Priest is allowed to venture on Yom Kippur. Learning a secret is an irreversible status, like parenthood, like adulthood. The exposure to it is radioactive, it sticks to you. Not only can one not get rid of it, they themselves become dangerous to those around them, who also risk catching it. The exposed person becomes a carrier, and as such is incorporated into the secret’s realm of expansion. The moment of exposure is the moment in which the secret’s defense systems organize themselves around that person, turning them from a subject into an object: from someone from whom the secret must be kept hidden, to a secret that must itself be hidden from others. It is precisely this view of the exposed person as a receptacle of the secret that allowed the Shin-Bet (General Security Service) to argue against the release, after 16 years in prison, of the aging KGB agent Prof. Marcus Klingberg, claiming with the utmost seriousness that he “knows something he doesn’t know that he knows.” Klingberg’s own consciousness is of no importance—just as the consciousness of a bottle containing a message is of no importance.
In the past, the leper colony of secret-bearers resided within Ashkelon’s Shikma prison. There, in solitary confinement, was the man who received the name “the atom spy”, Mordechai Vanunu. In the cell next to him was Klingberg who, a few years earlier, shared the place with spy Shimon Levinson. The Israeli Prison Service, under orders from the Shin Bet, made sure these prisoners won’t be around others, for fear the latter might catch the secret. The fact they were around each other was apparently less of a problem, since they are all eternal secret-carriers in any case.
The encounter between the fluid, evasive, and contour-less secret and the rigidly square and unimaginative world of law is fascinating. Regular legal structures, which seek to regulate people’s behavior, exhibit a set of values opposed to that of the secret. The quality of a legal norm is measured by its exactness, and by the capacity of its addressees to rightly delimit it (certainty). The application of a legal norm is always carried out with an emphasis on finding out all the relevant facts as they really happened (truth). The philosophy of the secret, seeking to set up walls that would delimit a territory that is by nature undefined, is antagonistic to the highest norm of criminal law, according to which “everything which is not forbidden is allowed.” The flirtation of law with “truth,” with its unreserved loyalty to a rigid worldview, makes it hard to apply those ideas that are based on a fluid worldview, whose agents are forces and processes rather than objects and facts. Recruiting the well-ordered and logical universe of the law in order to protect secrets leads to the unavoidable violation of fundamental legal principles, and to the creation of a juridical field dominated by an entirely different physics.
Israeli law has created such a field. British Mandatory censorship legislation, together with Israeli criminal legislation, gave birth to a tautological definition of the secret, one version of which is
“any piece of information national security requires would be kept secret” (1977 Israeli Penal Code, section 113 (b)(1))
Another version is
“any piece of information whose content, form, the manner in which it is held, its source, or the circumstances of receiving it testify to the duty to keep it secret.” (ibid.)
The first version has to do with content, stating that a secret is a secret. The second version is circumstantial, stating that a secret is what looks like a secret. Has the reader made any progress in understanding the concept of the secret? In practice, both this definition and the criminal offenses it ascribes—espionage and the delivery of secret information, punishable by prison sentence of seven to twenty years—end up turning the table: everything which is not allowed is forbidden. Incidentally, in order to legally ground the idea of truth discussed earlier, “information” is defined in the following manner:
“Information: including false information, and any description, plan, password, etc.” (article 91)
In order to complete the vagueness and tighten the seal around the secret, those British Mandatory regulations that define the authority of the Military Censorship forbid mentioning anything that might indicate that a given publication has been modified under the wheels of the censorship (1945 Defense (Emergency) Regulations, article 98). Here we have another kind of second-order secret: not only is it forbidden to reveal it, it is also forbidden to reveal that it is forbidden to reveal.
For a jurist, who is used to precise definitions, measured prohibitions, and a clear distinction between a fact either being or not being the case, such definitions are like an idol in the Holy of Holies. They undo the respectable façade of the law, the product of generations of refining the art of precise formulation and definition, and the construction of linguistic structures that distinguish between generalities and exceptions. In poetic terms, the definition of a secret is like the verse “there’s nothing, nothing like you / I can’t live without you,” in Sarit Hadad’s song “You’re a Cannon”. Why bother coming up with a rhyme when one can simply use the same word again?