Israel Knows a Defamation Case Won’t Fly. That’s Not the Play

By Mark Goldfeder

Friday, May 15, 2026

 

When news broke that Israel was considering legal action against the New York Times over Nicholas Kristof’s column, the one that included an allegation that Israeli personnel used a dog to rape a Palestinian detainee, critics were quick to pounce. Sovereigns can’t sue for defamation, they said. The claim is dead on arrival. Israel doesn’t have standing. Move on.

 

They are right that a standard defamation suit would fail, but they are wrong in thinking that there is nothing here.

 

Israel isn’t stupid. No serious observer believes the Israeli government is going to march into federal court and argue that Nicholas Kristof hurt the country’s feelings. But the critics are knocking down a straw man while missing the actual legal architecture that could work and which, if properly structured, would put the Times in a genuinely uncomfortable position. The play here is not a sovereign defamation claim. It is a narrow Israeli tort theory paired with American discovery.

 

The Kristof column doesn’t make a vague claim about Israeli conduct in Gaza. It publishes a specific, granular, criminal allegation: that certain personnel used a dog to penetrate a bound and blindfolded prisoner, that a handler encouraged the animal in Hebrew, and that others photographed and laughed. It cites reports about specific prisons during specific times, all of which point to specific people. That is not a political opinion, or editorial commentary about Israeli military policy. That is a factual accusation of sexual torture, localized enough to implicate a finite, identifiable group: a unit, a facility, a handler, a dog.

 

Under Israeli civil law, the tort of injurious falsehood, codified in section 58 of Israel’s Civil Wrongs Ordinance, doesn’t require a sovereign plaintiff at all. It requires identifiable professional actors harmed by a false statement concerning their trade, occupation, or professional conduct. The members of a specific canine or detention unit — a handler, a commander — are not Israel in the abstract. They are professionals whose careers, assignments, and livelihoods are directly implicated by the allegation. If even a small, identifiable cohort of personnel can plausibly say “this is necessarily about us,” then the plaintiff problem is solved.

 

Negligent publication runs alongside it. A global newspaper owes some duty of care before printing a claim this specific and this inflammatory. The more serious the allegation, the heavier the verification burden. The Times cannot hide behind the general importance of reporting on detainee abuse. Publishing that Israeli soldiers laughed while a dog raped a prisoner is not reporting on prison conditions. It is a factual claim that either happened or did not. If the Times has the evidence, production will vindicate them. If they do not, that is the story.

 

Which brings us to the real mechanism: 28 U.S.C. § 1782.

 

Once an Israeli proceeding is in reasonable contemplation, an interested person can apply in the Southern District of New York (where the New York Times is headquartered) to compel evidence production from a U.S. entity for use in foreign litigation. A properly framed § 1782 application does not ask the court to adjudicate the case; it simply asks the court to order the Times to produce the factual basis for one published allegation.

 

The subpoena categories write themselves: documents identifying the source and evidentiary basis for the dog allegation; fact-checking notes and editorial review records; communications with cited human rights organizations about this specific claim; internal discussions of reliability or corroboration. The Times will obviously raise reporter’s privilege. That is expected. But the answer here is a measured response: Nobody is asking for every source on every story. The request is for the factual foundation for one allegation the Times has publicly called corroborated and extensively fact-checked and “deeply reported.” Either show the corroboration or explain why you cannot. Both answers are informative.

 

None of this is a technical defamation case, but the critics declaring the claim dead on arrival are focusing on the colloquial use of the word “defamation” expressed in a spokesperson’s tweet and missing the tree for the forest. The real question is whether there exists a narrow, disciplined legal theory that forces the Times to produce the evidentiary basis for one of the most inflammatory factual allegations it has ever published. And there is.

 

The Times printed that Israeli soldiers summoned a dog, encouraged it in Hebrew, and used it to rape a bound prisoner while their colleagues took pictures. They called it corroborated. They called it fact-checked. So show us the facts. Produce the date, the location, the unit, the handler, the photographs, the medical records, the witnesses. All of it. Because if it exists, producing it ends this. And if it does not exist, then the New York Times published one of the vilest accusations ever leveled at a soldier, with nothing behind it, and called that reporting.