Majd Kayyal was arrested and held incommunicado by Israel’s Shin Bet. Arabs 48

Margaret Sullivan, The New York Times’ public editor, has written a thoughtful and important piece criticizing the way the newspaper complied with an Israeli-imposed gag order on the case of Majd Kayyal.

But it leaves some important questions unanswered about the Times’ apparent eagerness to let Israeli censors set its news agenda.

Kayyal, a 23-year old journalist and activist and a Palestinian citizen of Israel, was detained incommunicado for five days by Israel’s Shin Bet secret police without access to a lawyer, following a return from a professional trip to Lebanon.

While the Times and other major media remained silent, The Electronic Intifada exclusively published the classified court transcript ratifying his detention and silencing the media.

After the gag order was lifted yesterday, following an appeal by the legal advocacy group Adalah, The New York Times finally published an article on Kayyal, which links to The Electronic Intifada’s coverage.

Gagged

Sullivan’s piece makes a number of important points. First, Jodi Rudoren, the Times’ Jerusalem bureau chief, considers herself to be bound by Israeli gag orders:

The Times is “indeed, bound by gag orders,” Ms. Rudoren said. She said that the situation is analogous to abiding by traffic rules or any other laws of the land, and that two of her predecessors in the bureau chief position affirmed to her this week that The Times has been subject to gag orders in the past. (An earlier version of this post said that The Times agrees to abide by gag orders as a prerequisite for press credentials, but Ms. Rudoren told me today that that is not the case, although it was her initial understanding.)

Rudoren’s confusion and her willingness to obey authority without asking questions are disturbing. And Sullivan’s piece also points out other contradictions which undermine Rudoren’s categorical claim that she must comply with government censorship. Sullivan writes:

I asked The Times’s newsroom lawyer, David McCraw, about the situation. He told me that he was consulted by Times journalists this week as they considered publishing an article about Mr. Kayyal’s arrest. Although the situation is somewhat murky, he said, “the general understanding among legal counsel in other countries is that local law would apply to foreign media.” Similar issues arise when America news media organizations cover the British courts, he said. But the restriction in Israel has not been tested, he said. “I’ve never seen us actually challenge it,” Mr. McCraw said, because no situation has arisen that would force the issue. Two ranking editors at The Times – the managing editor, Dean Baquet, and an assistant managing editor, Susan Chira (who was the foreign editor for eight years) – told me that they were unaware of The Times ever agreeing to abide by gag orders in Israel.

Transparency

Sullivan also points to The Electronic Intifada’s coverage of Kayyal’s case and cites criticism from me and Yousef Munayyer:

Ali Abunimah, said in an email that “readers have a right to know when NYT is complying with government-imposed censorship.” And Yousef Munayyer, executive director of the Jerusalem Fund and the Palestine Center, wrote to me that this seems to go against journalistic principles: “It would seem to me that a story that a state specifically wants to prevent from seeing the light of day is something that should make a journalist’s mouth water. That’s what journalism is all about, isn’t it?”

Sullivan largely agrees with our points:

Waiting a day or two until the gag order was lifted may have done no great harm. Still, I find it troubling that The Times is in the position of waiting for government clearance before deciding to publish. If the law makes that situation unavoidable, a little transparency would go a long way. Either in a sentence within an article or a short editor’s note, The Times can, and should, tell its readers what’s going on.

And so does the foreign editor Joseph Kahn, who told Sullivan that “in general he agreed with the idea of keeping Times readers informed in that way. ‘It makes sense to do that,’ he said.”

Unconvincing

Sullivan’s article leaves a number of questions that still need answers:

Why does Rudoren believe she is bound by gag orders when two senior editors said they were unaware of the newspaper ever agreeing to be bound by such gag orders?

Contrary to the claim that Israeli gags have never been challenged, I found at least one instance where the Times does indeed appear to openly defy an Israeli gag order.

A May 2008 article by Alison Leigh Cowan about corruption investigations into then Israeli Prime Minister Ehud Olmert states: “Police have imposed a strict gag order that forbids publication of information about the case in Israel.”

Yet the article goes on to provide Times readers with all the censored information, including the names of witnesses and suspects in the case that the gag order forbid media from naming.

Not all gags are equal

Sullivan’s piece mentions that the Times complies with gag orders imposed by British courts.

But there’s an important difference: while one may debate their merits, the kinds of gag orders typically applied to criminal trials in British (and Canadian) courts are intended to protect the rights of a defendant by ensuring that sensational or partial media coverage does not taint a jury.

One can argue plausibly that the public interest in impartial justice outweighs at least for the period of a trial the public’s right to know certain facts.

Nevertheless, The New York Times itself strongly criticized such gag orders in Canada twenty years ago.

But the Israeli gag order in the case of Majd Kayyal was intended to do the opposite: its purpose and effect was not to protect Kayyal, but rather to protect the Shin Bet’s ability to deprive him of fundamental rights and to do so in near total darkness. Journalists should challenge, not meekly comply with such orders.

Gagged in New York?

Even if it is true – as Rudoren says – that foreign correspondents based in occupied Jerusalem or present-day Israel must agree to abide by gags, there’s no reason why someone in New York could not have written a report on the case.

Ultimately, the Times report on Kayyal contained no information that required a physical presence in Jerusalem (it included a phone interview with Kayyal – and there are telephones in New York).

Indeed, last year, the Times blog The Lede reported on Israel’s so-called “Prisoner X” – the Australian citizen Ben Zygier who died in Israeli custody – despite a strict Israeli gag order that forbade even mentioning that the gag existed.

The Lede’s report appears to have been published before the gag was partially lifted.

(In an update to her post, Sullivan points out another instance where the Times did something similar in order to evade a gag in 2010.)

Unwilling to challenge

One must ask what would happen if The New York Times had challenged the Israeli gag in the Kayyal case. Would Israel be prepared to expel Rudoren? Would it shut down the Times Jerusalem bureau?

It’s hard to imagine an Israeli government – even one as extreme and intolerant as the present one – being prepared to absorb the embarrassment such an attack on the international press would entail.

Still, the Times should be prepared to risk it and find out.

But that would take a very different kind of Times bureau – one prepared to challenge Israeli government actions rather than serve as Israel’s chief explainer and apologist. I’m not holding my breath.