(IPI/IFEX) – The following is an IPI letter to US Attorney General John Ashcroft: Mr. John Ashcroft The Attorney General US Department of Justice Washington, DC USA Fax: + 1 202-514-0293 Vienna, 10 September 2001 Dear Mr. Ashcroft, The International Press Institute (IPI), the global network of editors, media executives and leading journalists, wishes to […]
(IPI/IFEX) – The following is an IPI letter to US Attorney General John Ashcroft:
Mr. John Ashcroft
The Attorney General
US Department of Justice
Washington, DC
USA
Fax: + 1 202-514-0293
Vienna, 10 September 2001
Dear Mr. Ashcroft,
The International Press Institute (IPI), the global network of editors, media executives and leading journalists, wishes to protest the decision of the United States (US) Attorney’s office to subpoena the telephone records of a journalist.
According to information provided to IPI, in a letter dated 20 August, the US Attorney Mary Joe White wrote to Associated Press (AP) journalist Jon Solomon informing him that the US Attorney’s office had obtained records of both his incoming and outgoing telephone calls between 2 and 7 May. The decision to subpoena the journalist’s telephone record was related to an article written by Solomon on 4 May in which he quoted unidentified law officials as saying that a government wiretap had recorded the conversation of a US Senator who was under investigation at the time. Under federal law, it is illegal for a law enforcement officer to disclose information obtained under a federal wiretap.
Reacting to the decision of the US attorney’s office, AP President and Chief Executive Louis D. Boccardi said, “Their actions fly in the face of long-standing policy that recognises what a serious step it is to go after a reporter’s phone records. We hope that this secret assault on the press is not an indication of the Bush administration’s attitude towards a press free of government interference.” In addition, First Amendment lawyer Floyd Abrams said, “there’s no doubt that the decision of the government to go as far as to obtain these telephone records raises constitutional questions.”
With regard to the use of the subpoena in Solomon’s case, IPI is dismayed that the US Attorney’s office failed to follow the Code of Federal Regulations which states that all reasonable alternatives should be taken before the authorities consider the use of a subpoena.
In addition, relevant federal case law in this matter sets out a balancing test which should have guided the US Attorney’s office.
The three-part test states that the US Attorney’s office must show that the information sought is, (a) highly material and relevant; (b) necessary or critical to the maintenance of the claim or defence; and (c) not obtainable from other sources.
By failing to apply the above test to the Solomon case, it would appear that the US Attorney’s office chose to follow the path of least resistance. Before making the decision to seek the journalist’s telephone records, IPI would have expected to have seen a thorough investigation within the government to ensure that the information could not be obtained from other sources. Furthermore, the application for the telephone records should have been made inter partes, thus allowing Solomon to argue qualified privilege under the relevant case law. However, it would appear that no such investigation was conducted and the failure to inform Solomon, until nearly four months after the fact, deprived him of any chance to rebut the government’s arguments.
In the opinion of IPI, this not only affects the case of Solomon but has wider ramifications for journalists and the question of their right to confidentiality. The American legal system is based on legal precedent which enables rights to be defined through the examination of case law; by denying Solomon the right to be heard in this matter the judiciary has been deprived of its right to decide. As a result, an opinion that may have shed further light on the question of journalists’ confidentiality has been lost. It is IPI’s belief that this is not only detrimental to the present case but damaging to all parties who may be involved in future cases. The US Attorney’s office should have taken this into consideration when deciding on the most appropriate course of action.
Aside from the legal implications, IPI believes that the decision by the US Attorney’s office will also have an inhibiting effect upon press freedom. Central to any democratic society is the free flow of information. In seeking retribution for information provided to the media, the government is hindering the flow of that information and journalists will find it increasingly difficult to find people willing to speak on matters of import.
The independence of the journalism profession is also at stake. By deciding to obviate the procedures that enable the media to distinguish themselves from government, the US Attorney’s office has damaged the public perception of the profession. IPI is deeply concerned that the decisions in this case serve only to make further in-roads into the independence of journalists and promote a view that journalists are merely an investigative arm of the state.
Bearing the above in mind, IPI would invite the Attorney General to take note of the following statement of Justice White in the case of Branzburg, “[We] do not hold… that state and federal authorities are free to annex the news media as an investigative arm of the government.”
A further worry is the effect that such cases have on press freedom around the world. The US is rightly perceived as a country that upholds press freedom and many countries look to it for guidance on such issues. With the advent of globalisation, IPI believes that the actions of a country on issues such as individual rights cannot be seen in isolation. For this reason, IPI fears that, in this case, the US is setting a standard for the treatment of journalists which may be emulated by other countries.
Concerns for other countries are intensified upon examining a number of recent cases in the US. On 6 April 2001, IPI protested the decision of the Wyandotte County District Attorney to bring charges of criminal defamation against an editor and a publisher. In addition, Vanessa Leggett, a freelance journalist, was found in contempt of court by U.S. District Judge Melinda Harmon and jailed without bail in Houston, Texas, on 20 July 2001. IPI would invite the Attorney General to consider the possibility that these instances of intolerance will act as a justification for repressive regimes around the world to act in a similar vein.
With the above in mind, IPI would invite the Attorney General to carry out a thorough investigation into why the US Attorney’s office failed to follow the Code of Federal Regulations, available case law in the area and to inform Solomon, in a timely manner, that his telephone records were the subject of a subpoena. In addition, IPI believes that, such is the concern expressed by journalists in the US, the Attorney General should be encouraged to make a public statement affirming that press freedom is at the core of the current administration. By doing so you will be supporting press freedom and freedom of expression in the US.
We thank you for your attention.
Yours sincerely,
Johann P. Fritz, Director
Recommended Action
Similar appeals can be sent to:
John Ashcroft
The Attorney General
US Department of Justice
Washington, DC
USA
Fax: + 202 514 0293
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