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Ashcroft approves subpoena for online news reporter

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  1. Protecting Sources and Materials

    NMU         WASHINGTON         Confidentiality/Privilege         Mar 9, 2001    

Ashcroft approves subpoena for online news reporter

  • Federal prosecutor says U.S. Attorney General signed off on subpoena requiring reporter to authenticate articles he wrote about a man charged with stalking, intimidating a federal agent.

Wired News reporter Declan McCullagh was subpoenaed on March 8 by the Department of Justice to testify in a federal criminal case in Tacoma, Wash. The subpoena for McCullagh, who has written about the case for Wired, was approved by U.S. Attorney General John Ashcroft, according to the U.S. Attorney who subpoenaed the journalist.

According to federal regulations, Department of Justice employees must obtain permission from the Attorney General before subpoenaing a member of the news media.

McCullagh was served by two Treasury Department agents in Cambridge, Mass., after he spoke at a panel discussion about Internet privacy and security. The subpoena orders him to appear on April 2 for testimony and bring with him articles he wrote about the defendant, James Bell, of Vancouver, Wash.

In April 2000, McCullagh wrote how Bell, who was then about to be released from prison for tax evasion, planned to exact revenge on federal officers through a plan called “Assassination Politics.” McCullagh called the plan “an unholy mix of encryption, anonymity, and digital cash to bring about the ultimate annihilation of all forms of government.”

In November 2000, McCullagh wrote that Bell’s house was searched by federal agents. Bell was subsequently charged with stalking and intimidating the family of an IRS agent.

The subpoena requires McCullagh to appear to testify, but does not require him to provide notes or other unpublished material.

“(A)s a general rule, I do not believe it is desirable for journalists to disclose information or interviews that were gathered or performed for news purposes,” McCullagh wrote in an e-mail to an Internet mailing list of politics and technology that he moderates.

“We’re only interested in having you testify about statements of his that you published,” U.S. Attorney Robb London wrote in an e-mail to McCullagh on March 9.”The limited purpose of the subpoena is to have you review two of your published articles, acknowledge your authorship, review several of the statements which you attributed to Bell in your articles, and have you verify that he in fact told you those things.”

London claimed the testimony was necessary because federal rules of evidence do not allow the introduction of statements contained in news articles without the author testifying as to their validity.

Attorney General John Ashcroft personally approved the subpoena, London wrote in the e-mail. The Justice Department did not respond to inquiries about whether this was the first subpoena against a journalist that Ashcroft has approved.

The Justice Department’s Office of Enforcement Operations, Policy and Statutory Enforcement Unit reported in 1998 that prosecutors sought permission to issue subpoenas on the news media 77 times between 1993 and June 2, 1998. Of the proposed subpoenas, 57 were approved, four were not approved, and 16 were withdrawn or not forwarded to the Attorney General.

Under the federal regulations governing prosecutors’ subpoenas of members of the news media, prosecutors must exhaust alternative sources for information before doing so.

“If your subpoena could have been avoided, it would have been,” London wrote. “The subpoena that has been served on you, is, in my experience, as minimally intrusive as any such subpoena can be.”


© 2001 The Reporters Committee for Freedom of the Press

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