Jailed Since Nov. 3, NCO Accused of Passing Documents to Netanyahu Begging President for Clemency

As his physical condition continues to deteriorate in prison, where he has been since his arrest on November 3, reservist NCO A., accused of leaking to Prime Minister Benjamin Netanyahu a Hamas document the IDF brass had been keeping hidden, on Thursday morning submitted a request for clemency from President Yitzhak Herzog.

The request, which was submitted by his family through his attorneys, stated that “A.’s case presents special personal, legal, and public circumstances that require the intervention of the President with his immediate pardon, even before the legal proceedings in his case have concluded.”

The lawyers noted in the pardon request that A. is being held in difficult and humiliating conditions and that “failure to stop the snowball rolling in A.’s case will lead to distrust and an unprecedented rift between the public and the legal and enforcement system, to the point where the public may fear that extraneous and irrelevant considerations are being used in the matter. All of this is on our minds as a society, and in light of this, we will request his pardon from the President now.”

Supreme Court Justice Alex Stein ruled on December 9 that Eli Feldstein, a spokesman for Netanyahu, would be released to electronically monitored house arrest, but the Intelligence Division’s NCO A., who was accused alongside him in the classified information leak affair, would remain in detention until a different decision is made in his case. This was decided as part of an appeal hearing filed by the prosecution after the Tel Aviv District Court decided to release the two to house arrest.

On September 6, the German newspaper Bild published content from a secret document that described Hamas’s negotiating strategy with Israel. The report stated that a document found on a computer that apparently belonged to Yahya Sinwar––then head of Hamas’ political bureau––contained instructions for reaching a ceasefire that were personally approved by Sinwar. According to the document, Hamas did not seek to quickly end the war but rather sought to improve the terms of the agreement, even if this would lead to a prolongation of the conflict.

The document indicated that Hamas’s strategy was based on psychological pressure on the families of the hostages to increase public pressure on the Israeli government, exhaust Israel’s political and military resources, and increase international pressure on the Israeli side.

On September 8, the IDF reported that it was an old document, discovered about five months earlier and that it was not written by Sinwar or his associates but rather written as a recommendation by the middle levels of Hamas.

However, by attempting to downplay the importance of the document, the IDF gave away the fact that it had been hidden from the prime minister, reiterating an age-old problem in the communication between the IDF brass and Netanyahu that went back to the night of October 6, when the same brass decided not to alert the PM regarding intelligence on an advancing Hamas attack.

Justice Stein’s decision to keep the NCO A in jail for what could be the duration of the war raised protests from across the political map in Israel. Stein accepted the state’s argument that in times of war, it is forbidden to take the risk that the NCO would leak the information stored in his mind due to the great potential for harm. It follows that any defendant accused of passing on secret information who is exposed to additional classified materials with potential for harm should not be released, even if the chance of him leaking is extremely low.

In other words, Stein gave greater weight to the potential for harm in the information known to the defendant than to the level of danger that it would be leaked – which in the case of the NCO was extremely low since his house arrest would have been monitored and he would have no access to communications.

In the pardon application, A’s lawyers detail the fact that he served devotedly in the IDF for about a decade in the Intelligence Branch and volunteered extensively for the community. They mention the District Court’s ruling that “A’s entire request was and remains the transfer of material and information to the Prime Minister with the aim of assisting him in making decisions based on as much information as possible.”

The lawyers also detail the discrimination against A in parallel with other cases in which citizens were accused of serious espionage offenses – passing on secret information with the intention of harming state security – without a draconian decision of detention until the end of the proceedings, while in A’s case the defendant, who is not accused of a serious offense, is sentenced to imprisonment until the end of the proceedings.