Judge orders CNN free-lancer to testify at Lindh hearing

From the Summer 2002 issue of The News Media & The Law, page 12.

A federal judge ordered a CNN free-lance reporter to testify at a hearing for American Taliban fighter John Walker Lindh, rejecting arguments from the media that the subpoena could endanger all war correspondents.

The July 12 ruling from U.S. District Judge T.S. Ellis III in Alexandria, Va., became moot on July 15, when Lindh pleaded guilty to two charges of aiding the Taliban and carrying explosives.

In June, Lindh subpoenaed reporter Robert Young Pelton to testify about a videotaped interview Pelton conducted with an injured Lindh in an Afghanistan hospital in December 2001. Lindh wanted Pelton to testify at a hearing that would decide whether the videotape could be shown to a jury.

The subpoena outraged national media groups because Lindh argued that Pelton was acting as an agent of the U.S. government during the interview. Lindh argued that the videotape could not be used against him because he was not given his Miranda rights before the interview.

American war correspondents fight subpoenas because they do not want their sources in combat zones to believe that they are agents for any government.

Lindh’s argument that journalists are government agents endangers the lives of all reporters in war zones, CNN and other national media groups, including The Reporters Committee for Freedom of the Press, argued in a friend-of-the-court brief.

In his written order, Ellis called Lindh’s argument that Pelton was acting as a journalist “non-frivolous.” Pelton’s testimony was material to Lindh’s argument, Ellis’ order says.

In court, Ellis did not believe that the subpoena would put Pelton and other foreign correspondents at risk.

“It isn’t the subpoena that puts him in danger. It’s the argument that the defendant makes, and the defendant is entitled to make that argument,” Ellis said in court. “Nor do I think that the subpoena here creates some risk that foreign correspondents will be killed by terrorists and thugs on the ground that they are government agents. They don’t need excuses like that.”

Ellis ruled that reporters are not protected from testifying when they are not protecting confidential sources or are not a victim of government harassment.

“In my view, there is no privilege, and I don’t see the First Amendment as giving newsmen a testimonial privilege that other citizens do not enjoy,” Ellis said.

Ellis agreed to reconsider whether Pelton’s testimony was necessary once Lindh actually called the reporter as a witness. But the argument against requiring Pelton to testify would have to be significant to outweigh Lindh’s right to a fair trial, Ellis said. (United States v. Lindh) — MD