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 February.
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.
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 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, told 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.”
Jason Leopold is a former Los Angeles bureau chief for Dow Jones Newswire. He has written over 2,000 stories on the California energy crisis and received the Dow Jones Journalist of the Year Award in 2001 for his coverage on the issue as well as a Project Censored award in 2004. Leopold also reported extensively on Enron’s downfall and was the first journalist to land an interview with former Enron president Jeffrey Skilling following Enron’s bankruptcy filing in December 2001. Leopold has appeared on CNBC and National Public Radio as an expert on energy policy and has also been the keynote speaker at more than two dozen energy industry conferences around the country.