Texas court orders reporter to testify in federal trial

Daniel Skallman | Reporter's Privilege | Feature | November 22, 2010

A federal court in El Paso, Texas, ordered a reporter to testify in a pre-trial hearing last week as part of a federal prosecution of a Cuban anti-Castro militant accused of lying to federal immigration authorities and entering the country illegally.

The Department of Justice's National Security Division subpoenaed reporter Ann Louise Bardach Nov. 5 to testify in the U.S. District Court for the Western District of Texas to authenticate tape-recorded interviews she conducted with the defendant, Luis Posada Carriles, on the island of Aruba in 1998. Bardach later published the interviews and a series of stories about Posada in The New York Times in 1998.

According to one of Bardach’s articles, Posada was imprisoned in Venezuela in connection with the 1976 downing of a Cuban commercial airliner that killed all 73 civilians on board. Posada allegedly bribed his way out of a Venezuelan prison in 1985, but was again arrested in 2000 for plotting to assassinate former Cuban President Fidel Castro at an international summit in Panama. After being pardoned for the crime by the Panamanian president in 2004, Posada disappeared until 2005, when he entered the United States with a false passport and filed a claim for political asylum in Miami.

According to an order filed by the court Friday, Posada has been indicted on charges of perjury, obstruction, naturalization fraud and providing false statements to immigration authorities. Two of the perjury counts are based on conflicts between statements Posada made in his 1998 interview with Bardach and those he made during immigration proceedings, according to the order.

In February, Posada filed a motion to exclude the tapes from his interview with Bardach as evidence in the trial, claiming the government could not prove that they were accurate and had not been modified. The court held a hearing Nov. 15 to determine the authenticity of the tapes, at which Bardach was ordered to testify. After the hearing, the court on Friday denied Posada’s motion to exclude the tapes as evidence in the criminal trial, ruling that they are indeed authentic.

Bardach, who has been subpoenaed three times by the federal government regarding her interview with Posada, said her involvement in this case sets a dangerous precedent for the First Amendment-based reporter’s privilege. She said by e-mail that she and the Times have been fighting government subpoenas in this case for five years “in defense of one principle: that reporters should not be compelled to provide evidence against their sources.”

Although the court’s ruling confirms the accuracy of her earlier reporting about Posada's crimes, “it is a troubling ruling for journalism,” Bardach said. “While Posada was not a confidential source, it could well deter subjects and sources from speaking to reporters in the future and will likely encourage journalists and media organizations to destroy notes or materials for fear of being used by prosecutors who are either too lazy or fearful to build their own cases.”

Bardach maintained that the Justice Department had ample information with which to prosecute Posada, “which should have made use of reporter’s tapes unnecessary,” she said. In addition, she said that five boxes of records and evidence on Posada housed in the Miami bureau of the FBI were destroyed in the summer of 2003, and that the event was never fully investigated by the government.