How Not To Break ‘Breaking The Silence’
A few days ago, Breaking the Silence sent out a celebratory email to their subscribers, in English and in Hebrew, marking their victory against those who want to silence them. This case shows exactly why we have to be very careful what words we use and what accusations we throw around. We cannot give organizations that seek to destroy Israel any ammunition to use as they delegitimize their critics. Here is the Facebook post they put up in response to their “win”:
Note the accusations:  treason,  espionage, and  (something I found a stretch on the face of it) planting soldiers in specific units so that they could bring information to the NGO. These are very serious charges and the first could get the guilty party executed if committed during wartime.
There are two points I would like to make here. The first deals with the accuracy of the accusations on the part of those who want to challenge the right of an NGO to operate within Israel. The second concerns the ease with which overly zealous accusations hurled carelessly can be twisted and used against the accuser.
Background to the Accusations Against Breaking the Silence
In 2016, the right-wing NGO Ad Kan reporting on having sent to Breaking the Silence former soldiers who pretended to be willing to provide material for the organization’s campaign against IDF activities in Judea & Samaria. The interviewees’ hidden cameras recorded the interviews that included requests on the part of Breaking the Silence interviewers for information on operations in which the former soldier was involved. This is not information that should be shared without permission and was not directly relevant to the purposes of the interview.
The taped interviews became the focus of a Channel 2 (now 12) report that led to requests on the part of Prime Minister Netanyahu, the Defense Minister, the Justice Minister, and others for a full investigation.
After an 8-month investigation, the State Attorney’s Office concluded that there was no evidential basis upon which to request a criminal investigation against Breaking the Silence. Ad Kan appealed the decision and the Attorney General upheld the original decision.
The Accusations Against Breaking the Silence
There is a law that clearly defines what constitutes treason (see this site for the law in Hebrew) and this law lists eight specific acts of treason. Breaking the Silence was accused by Ad Kan of one of these:
ביודעין, מסר לאויב או בשביל האויב כתב סתרים, סיסמה, סימן היכר, או ידיעות על מספרם של כוחות הצבא, עמדותיהם, מקום הימצאם, אספקתם או מתקניהם, או על הכנות או על פקודות בנוגע לפעולותיהם או לתנועותיהם, או כל פרט אחר בעל חשיבות ביחס לצבא
Intentionally passed to the enemy, or for the sake of the enemy, a code, password, signal, or information on the number of IDF forces, their positions, their locations or locations of their supplies or facilities, or their preparations or their commands regarding their activities or movement, or any other important details of importance to the military.
Ad Kan showed without a shadow of a doubt that Breaking the Silence requests operational information from soldiers they interview. According to an article in HaKol HaYehudi (in Hebrew), the State Attorney’s Office acknowledged that Breaking the Silence did ask for such information without permission from the IDF censor to do so, nor did the interviewees have permission to divulge it. However, they accepted the organization’s explanation that these details were requested in order to verify the interviewees’ reliability.
The Fate of the Accusations
There was no evidence found implicating Breaking the Silence in passing on operational information to anyone outside the organization. Therefore, there was no evidence that Breaking the Silence committed treason or espionage. The third accusation was dismissed out of hand as no evidence was found suggesting that the organization has the power to influence the IDF or placement of its soldiers in particular units.
Let us look at how Breaking the Silence presents the results of the investigation to the public on their Facebook page (all emphasis is theirs). First of all, they show the relevant paragraphs in the decision of the State Attorney’s Office:
6. We were not presented with any evidence showing that the organization Breaking the Silence published classified and sensitive information. We also do not know of any instance in which the organization published secret information that it holds without having prior approval by the military censor. Therefore, even assuming that the organization does have such information that it is not permitted to hold — it appears that there is no public interest in opening a criminal case.
8. In addition, we did not find any evidence that the organization Breaking the Silence, or its activists, passed on classified information to bodies outside of Israel.
They use these paragraphs from the legal decision to declare that Ad Kan and all those who incite(d) against Breaking the Silence are liars. On their Facebook page, they wrote:
The bottom line? ‘Ad Kan’ lied.
In the mail they sent to subscribers, they wrote:
“Following an examination of the appeal and upon examining other materials relevant to the decision, among them a review of the materials and stances held by security professionals, the attorney general found no grounds to intervene in the decision taken, and thus decided to reject the appeal,” wrote the attorney general, in turn wiping out the lies that were publicized, once and for all. [emphasis added]
Were these lies? Were they wiped out? The problem for Breaking the Silence is that the State Attorney’s Office claimed that it was not presented with evidence that it could use to open a criminal case against Breaking the Silence. That does not mean that there is no case here. Because:
absence of evidence is not evidence of absence.
Many criminal cases are closed for lack of sufficient evidence. Because the general public does not understand that this does not mean that there was no wrongdoing, the accused use the closing of such cases as confirmation of their supposed innocence. That is not so. It means that the matter is still open and if enough evidence permissible in court can be found, the case might well be re-opened and criminal proceedings initiated.
The only way an accused can claim to have been cleared of the accusation is if the case was closed because no offense was committed. That is not the language used in this decision. The decision talked about lack of evidence, not lack of offense.
On their Facebook page, Ad Kan says it will continue in the fight to prove the truth of their accusations against Breaking the Silence.
May I suggest that next time they come out with accusations that would merit proof in a court of law that they make sure they have solid court-worthy evidence before going public? Otherwise, they are just providing fodder for the entire anti-Israel propaganda machine of which Breaking the Silence is only one of many.