[Ppnews] Army Targets Truthout for Subpoenas in Watada Case

Political Prisoner News ppnews at freedomarchives.org
Wed Dec 13 18:02:52 EST 2006

Army Targets Truthout for Subpoenas in Watada Case
     By Jason Leopold
     t r u t h o u t | Report

     Wednesday 13 December 2006

     In a case that cuts right to the heart of the First Amendment, a 
US Army prosecutor has indicated he intends to subpoena Truthout 
Executive Director Marc Ash, a Truthout reporter, and two of the 
nonprofit news organization's regular contributors, to authenticate 
news reports they produced and edited earlier this year that quoted 
an Army officer criticizing President Bush and the White House's 
rationale for the Iraq War.

     Captain Dan Kuecker, the Fort Lewis, Washington-based Army 
prosecutor, has stated his intent to compel Ash, Truthout reporter 
Sari Gelzer, and contributors Dahr Jamail and Sarah Olson to testify 
at the court-martial of First Lieutenant Ehren Watada. Kuecker is 
actively seeking the journalists' testimony so he can prove that 
Watada engaged in conduct unbecoming an officer, directly related to 
disparaging statements the Army claims Watada made about the legality 
of the Iraq War during interviews with Truthout and his hometown 
newspaper, the Honolulu Star-Bulletin, in June.

     At a hearing earlier this year, a military court determined 
there was sufficient evidence to charge Watada with intentionally 
missing his deployment, contemptuous speech toward officials, and 
conduct unbecoming an officer, and proceed with a general 
court-martial. In September, those charges were amended to include an 
additional count of conduct unbecoming an officer. The contempt 
charges were dropped in November. Watada faces a maximum six-year 
prison sentence if he is convicted. The trial is expected to begin in 

     Lucy Dalglish, executive director of the Reporters Committee for 
Freedom of the Press, who for years has been arguing in favor of a 
shield law to protect journalists from testifying against their 
sources, said what's distressing about the Watada case is that the 
government is trying to use a reporter to build its case.

     "The last thing a reporter wants to be identified as is an 
investigative arm of the government." Dalglish said.

     In his aggressive attempt to haul members of Truthout's 
editorial staff into court, Kuecker bypassed corresponding with the 
organization's attorney and sent Ash a series of emails - one of 
which was sent late Sunday evening, December 10 - insisting that Ash 
provide him with information about the reporters so Kuecker can 
prepare his case against Watada.

     "This information is required as a part of an ongoing criminal 
investigation and prosecution," Kuecker wrote in that December 10 
email to Ash. "Please respond as soon as possible."

     Ash said he repeatedly referred Kuecker to Truthout attorney 
Bill Simpich. Ash said in an interview that he is determined to 
resist any attempt by the US Army to compel him to testify against 
Watada or to provide the Army with any physical evidence it may seek.

     "We view this action as retaliatory, both toward Lieutenant 
Watada and toward our organization that reported his courageous 
stand," Ash said. "Since the day the US invaded Iraq, Truthout has 
tried to educate the American people about the true reasons for the 
military action and, more importantly, not only the suffering of the 
Iraqi people, but the painful and often unnecessary sacrifices of 
America's servicemen and women. Opposing the United States Army, even 
in a courtroom, is a daunting prospect. However, we will not shrink 
from the task."

     In general, military courts are not bound by the same procedures 
as federal prosecutors in seeking journalists' materials, and 
therefore do not have to obtain approval from the US attorney general 
before subpoenaing journalists. A US attorney in a US district court 
could prosecute civilian witnesses who fail to respond to a military 
subpoena without a valid reason.

     It is likely that Kuecker wants Gelzer to discuss a short news 
report she filmed over the summer. In that report, Watada, at the 
Veterans for Peace annual conference, said the Iraq War was based on 
lies and remarked that US soldiers could refuse to fight. According 
to Bill Simpich, Truthout's attorney, the military is clearly 
interested in having Gelzer confirm the authenticity of the film and 
the statements Watada made that were caught on tape.

     Watada was a member of the Army's First Stryker Brigade Combat 
Team at Fort Lewis when, on June 22, he became the first commissioned 
officer to refuse assignment with the unit to Iraq. He has since been 
reassigned to an administrative position.

     <http://www.lewis.army.mil/pao1/media.htm>Redacted documents 
outlining the charges against Watada cite reports by Olson and by the 
Star- Bulletin's Gregg Kakesako, in which Watada was quoted as saying 
that President Bush lied about the reasons the US went to war in Iraq.

     "As I read about the level of deception the Bush administration 
used to initiate and process this war, I was shocked. I became 
ashamed of wearing the uniform," Watada said in an interview by Olson 
that was <http://www.truthout.org/docs_2006/060706A.shtml>published 
on Truthout June 7.

     Watada's attorney, Eric Seitz, contends his client's comments 
are protected free speech, and he was shocked that Watada was charged 
with anything other than missing a troop movement.

     It's widely understood that the military can limit the speech of 
its officers. The question is did Lieutenant Watada exceed the realm 
of permissible speech? That's what the court-martial intends to answer.

     Watada's mother, Carolyn Ho, 
Democracy Now! on Monday that she has been actively lobbying members 
of Congress to support her effort to get the Army to drop the charges 
against her son and allow him to resign.

     "I have gone through the halls of Congress; I was told in some 
places that I should be confident that the military will mete out 
justice and that the Congress should not be interfering with a 
military court - that there are laws that govern the separation of 
powers," Ho told Democracy Now! host Amy Goodman. "And we were 
attempting to explore ways that the Congress could support. It's 
obvious that our executive branch has not abided by the Constitution, 
which my son has sworn to uphold, and that oversight needs to occur. 
And I have asked that the Congress at least consider a sign-on letter 
that would call for dismissal of the charges and for the military to 
accept his resignation. But I was told that that was not really 
something that [Congress] can actually do."

     Ho said she recently met with Congresswoman Maxine Waters 
(D-Calif.), chair of the Out of Iraq Caucus, who promised Ho she 
would try to assist her "on the kinds of strategies we can pursue" to 
get the Army to drop the charges against Watada.

     Waters was unavailable for comment.

     The charges filed against Watada marked the first time in 41 
years that the military has used the charge of conduct unbecoming an 
officer to prosecute an officer's public statements. Usually, a 
conduct-unbecoming case involves more serious crimes, such as rape or 
sexual harassment, or manslaughter. The last time a military officer 
was charged with public dissent was in 1965, when Lieutenant Henry 
Howe criticized US foreign policy during the Vietnam War.

     Moreover, the Watada case is significant - and to some degree 
historic - because it is the first time the Army is actively seeking 
the testimony of professional journalists to prove one of its own 
officers violated military law by publicly questioning the rationale 
for war. Other cases involving the military and the media have, for 
the most part, involved the military's desire to subpoena unpublished 
material from reporters.

     The lack of legal precedent, however, in this case could make 
Truthout attorney Bill Simpich's job more difficult, according to 
several experts in military law.

     "There is little (if any) binding precedent for a media lawyer 
to cite to a military judge in responding to a subpoena in a court- 
martial," wrote Steven D. Zansberg, Matthew S. Freedus, and Eugene R. 
Fidell in a fall 2005 article for Communications Lawyer. "Unreported 
decisions from prior courts-martial exist, however, and provide 
strong, persuasive authority for recognizing and applying a qualified 
privilege for the press. At least two military judges at the trial 
level have recognized and applied a First Amendment-based privilege 
to shield a journalist's non-confidential but unreported information 
(video interview outtakes) from compelled production. In both cases, 
the judges quashed subpoenas issued to television news organizations 
to produce non-broadcast video footage, on the grounds that the party 
on whose behalf the subpoenas had been issued had failed to make the 
showing required to overcome the privilege."

     In 2004, Miles Moffeit, a reporter for the Denver Post, was 
subpoenaed by the defense attorney representing an Air Force officer 
for notes Moffeit took about an alleged gang rape of an 18-year-old 
woman at an Air Force base. In January 1999, Rolling Stone magazine 
and CBS's "60 Minutes" were subpoenaed by military prosecutors, who 
demanded unpublished and unbroadcast information the news 
organizations had obtained during interviews with US Marines about an 
incident in the Italian Alps when a military jet severed a ski- 
gondola cable, killing 20 people. Both cases involved courts-martial.

     At the time, Rolling Stone and "60 Minutes" attacked the 
constitutionality of the military prosecutor's demand. The news 
agencies argued that the subpoenas infringed upon the First 
Amendment's protection of a free press and urged a military court to 
strike down the subpoenas, because it had demanded materials 
protected by a qualified privilege under the First Amendment and 
because disclosure would be "unreasonably oppressive" under court- 
martial rules. The judge in the case granted "60 Minutes" and Rolling 
Stone's motion to quash subpoenas. In the Air Force proceeding, the 
sexual-harassment case was eventually dropped when the victim decided 
not to proceed with the case. On February 2, 2005, the Air Force's 
acting judge advocate general, Major General Jack Rives, sent a 
memorandum to the Air Force JAG Corps, requesting that they first 
consult with senior attorneys at the headquarters level and enter 
into negotiations with media organizations before serving reporters 
with subpoenas.

     Rives's memo emphasized the importance of striving for "the 
proper balance between the public's interest in the free 
dissemination of ideas and information and the public's interest in 
effective law enforcement."

     The Committee to Protect Journalists reported last week that the 
number of journalists jailed worldwide has increased for the second 
year in a row. The committee said the United States had imprisoned 
two journalists without charge or trial - Associated Press 
photographer Bilal Hussein, who now has been incarcerated for eight 
months in Iraq, and Al Jazeera cameraman Sami al-Haj, imprisoned for 
five years at Guantanamo Bay, Cuba. Joshua Wolf, a freelance blogger, 
was jailed for refusing to turn over a video of a 2005 protest to a 
US federal grand jury.

     In the case of Gelzer, the Truthout reporter, Simpich said, it 
is "wrongheaded and wholly mistaken" for the military to seek her 
testimony, because it would force Gelzer "to collaborate with the US 
military and help the government submit into evidence the very 
videotape that could expose Watada to additional years in prison."

     Simpich said if the military wants Gelzer to testify, "they're 
in for a big fight."

     "What they're essentially doing is asking the Fourth Estate to 
collaborate with the military as a co-partner in terms of 
prosecutions," Simpich said in an interview. "That turns the Fourth 
Estate upside down."

     Simpich added that it was premature to discuss legal strategy, 
but if Gelzer is subpoenaed, then "we will file a motion to quash."

     Jamail hired his own attorney to represent him in the case. He 
was unavailable for comment.

     David Greene, the attorney defending Olson, the Truthout 
contributor who wrote several of the Watada stories in question, 
confirmed that the military has already "indicated an intent to 
subpoena the reporters and they have put that process in motion."

     In an interview, Olson said she is concerned that the Watada 
case could drastically impact her career as a journalist.

     "Being asked to testify on the Army's behalf could limit my job 
as a journalist," Olson said. "What conscientious objector would be 
willing to speak to me if they knew I was on the Army's radar? "

     Olson said she objects to being used by the Army in such a way 
that it would help the military to send her source to jail. That 
could have an enormous impact on the media's ability to report the news.

     "I am being forced into a position where I would potentially 
function as the investigative arm of the military," Olson said. "That 
is a position that is absolutely antithetical to a free and 
functioning press. When the press becomes the eyes and ears of the 
government, then it creates a profound chilling effect for people who 
may be willing to speak to journalists. The Army's attempt to 
subpoena journalists in the case of Lieutenant Watada could help to 
eliminate the voices of dissent, and it sends a message to all 
members of the military that if you decide to speak about your 
opposition to the Iraq War we're going to throw the book at you and 
we're going to do that by using journalists to testify against you."

     Lieutenant Joe Piek, a military spokesman who is stationed at 
Fort Lewis, Washington, where Watada is based, would not comment on 
any aspect of the Watada case, nor would he discuss the reasons the 
military is trying to secure testimony from the media.

     "Our overarching concern is due process," Piek said. "We want to 
ensure Watada has a fair court martial. That is the primary reason 
the Army prosecutor will not discuss the case."

     Seitz, Watada's attorney, said he is "somewhat perplexed that 
the Army wants to get involved in this," adding that he is disturbed 
that the Army is attempting to drag reporters into court to help the 
military prosecute Watada.

   Norman Solomon, a longtime media expert and frequent contributor 
to Truthout, said the Watada case could set a "chilling" precedent if 
the Truthout journalists are forced to testify.

     "Journalists need to have assurance that they can promise and 
follow through on confidentiality with sources," Solomon told Free 
Speech Radio News in July. "If you don't publicly use material, you 
can't be subpoenaed or dragged into court and forced to testify or 
have your own notes or tapes utilized as testimony against those 
you've interviewed. The implication should be clear that if the 
courts, the military, [and] the government authorities are able to 
force journalists to turn over their notes or tapes or videos or 
whatever, then that has not just a chilling effect, but a really 
freezing effect potentially, on those who have things to say who 
trust journalists who may provide information not for full disclosure 
but on background or any other number of reasons that are useful for 
the public's right to know."

     Simpich agreed. He said the Watada case is extraordinary because 
the military, as a branch of the federal government, is pouncing on 
the Constitution and using the free press to try to send someone to 
jail. Moreover, the military is threatening to send the reporters to 
jail if they are subpoenaed and fail to testify on behalf of the government.

     "What I consider beyond idiotic is that the military is now 
turning to these reporters and saying we want you to help lock this 
man up and throw away the key," Simpich said. "It's precisely why you 
should not be calling reporters in civil or criminal proceedings."

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