[News] Lynn Stewart case raises new Patriot Act concerns

[News at freedomarchives.org]

Media Subpoenas in U.S. Terror Case Raise Concerns
Fri Jun 4, 2004 11:48 AM ET

By Caroline Drees, Security Correspondent

WASHINGTON (Reuters) - The U.S. government has subpoenaed four journalists 
from major media to testify in the trial of a lawyer facing terrorism 
charges in a case which has raised fears for the freedom of the press.

The subpoenas are in the trial of Lynne Stewart, who is charged with 
helping her client Sheikh Omar Abdel-Rahman, convicted of encouraging 
bombings in the United States, communicate from prison with what 
prosecutors say are his terrorist followers.

The New York Times, Reuters and Newsday are seeking to quash the unusual 
subpoenas of their reporters. Their success or failure may set legal 
precedents in a case pitting the media's concerns about protecting sources 
and impartiality against government efforts to win the battle against terror.

"We seem to be moving to a potential conflict between First Amendment 
interests and those of national security," said prominent press freedom 
attorney Floyd Abrams.

"This is an area fraught with danger for journalists and their ability to 
protect confidential information and sources, as well as non-confidential 
material," he said.

The four journalists involved are Joseph Fried of The New York Times, New 
York Times freelancer George Packer, Esmat Salaheddin of Reuters and 
Newsday reporter Patricia Hurtado.

Government prosecutors want them to confirm in court that comments they 
attributed to Stewart in articles were in fact made by her.

Legal experts say that without the reporters' confirmation under oath, the 
articles are considered hearsay and are not admissible in court. If 
confirmed, the information can be used as evidence.

While all three media stand by the stories, they oppose the subpoenas on 
principle and because testifying could open the door to far broader 
cross-examination by the defense.

The government says the subpoenas call for extremely limited but important 
testimony from the journalists and would not compromise the so-called 
"reporters' privilege."

Reporters say that without their privilege to refuse to disclose even 
non-confidential information, based on the First Amendment of the U.S. 
Constitution, they cannot do their job.

"Our sources will dry up if sources ... think that anything they tell us 
will be repeated against them in court. Why would you speak to a reporter 
if those words are going to be read back against you in court?" said George 
Freeman, in-house counsel for The New York Times.

"We are supposed to be the watchdog of our government, not its lap dog, so 
we shouldn't be in bed with it testifying," Freeman said.

SETTING A PRECEDENT

Kevin Goldberg, a lawyer for the American Society of Newspaper Editors, 
said the subpoenas could set a dangerous precedent.

"There are provisions in the USA Patriot Act (post-Sept. 11, 2001 
anti-terrorism legislation) that conceivably make it very easy for the 
government to trample on First Amendment rights," he said. "The really 
dangerous precedent I'm seeing from this case is the increasing reliance on 
journalists to be an investigatory arm of the government."

Michael Gerhard, a First Amendment expert at the William & Mary School of 
Law, said: "There is a tension here that we haven't seen much before 
between the journalists' efforts to do their job and the government's 
explicit acknowledgments that it has paramount concerns."

Presiding Judge John Koeltl has not yet ruled on the New York Times' and 
Reuters' motions to quash the subpoenas. Newsday's in-house counsel 
Stephanie Abrutyn says the paper plans to file its motion within two weeks.

The trial is due to start June 21.


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