Forfeited interview tapes screened by FBI

From the Summer 2003 issue of The News Media & The Law, page 47.

By Wendy Tannenbaum

Three Chicago newspaper reporters who interviewed a key witness in an Irish terrorism prosecution reluctantly handed over their interview tapes July 4 to the Irish defendant and to U.S. Federal Bureau of Investigation agents who claimed a national security interest in the case.

The reporters had strongly objected to the disclosure and originally planned to go to jail before giving up their tapes, but agreed to obey a federal trial judge’s order to hand them over after their appeal for a stay of that order was rejected.

The case involved two unusual twists in the subpoenaing of reporters: an almost immediate refusal by a federal appellate court to stay the trial court’s order to disclose interview tapes, and the federal executive branch’s insistence on pre-screening the information before it was turned over to a foreign party.

Abdon Pallasch and Robert C. Herguth, of the Chicago Sun-Times, and Flynn McRoberts, of the Chicago Tribune, interviewed FBI informant David Rupert for a book they planned to write about Rupert’s experiences spying on the Irish Republican Army.

Pallasch and McRoberts originally intended to write the book together, and Herguth joined the project when McRoberts backed out.

Rupert is a witness in a terrorism case against Michael McKevitt, whose trial is underway in Ireland. McKevitt is accused of leading a violent faction of the Irish Republican Army known as the “Real IRA.”

McKevitt’s attorneys wanted to use the reporters’ tapes at trial to try to undermine Rupert’s testimony. The reporters technically were not subpoenaed, but McKevitt’s attorneys requested, through a procedural device similar to a subpoena, that a U.S. district court order disclosure of the tapes.

The reporters objected to the request on the grounds that a reporter’s privilege protected them from forced disclosure of source materials.

Under Illinois state law, a reporter may refuse to disclose source materials unless “all other available sources of information have been exhausted and disclosure of the information is essential to the protection of the public interest involved.”

Federal courts in Illinois also have recognized a qualified, nonstatutory privilege based on the First Amendment.

On July 3, U.S. District Judge Ronald A. Guzman issued an opinion rejecting the reporters’ claim for protection and ordering disclosure.

“[T]he possible onerous effect of disclosure of the taped conversations between Rupert and the [reporters] upon the ability of the news media now and in the future to obtain the cooperation of individuals in gathering news of a sensitive nature is greatly attenuated,” the court wrote. “When weighed against the possible use of this material in a serious criminal trial of an alleged terrorist and the general public interest in fair, thorough, and effective investigations and trials of criminal terrorist activities, the asserted reporter’s privilege here . . . must give way.”

The United States, asserting witness safety and national security concerns, filed a statement of interest in the case and asked for the opportunity to redact sensitive information from the tapes before they are made public.

Guzman’s order required the reporters to turn over their tapes for use in the Irish trial, but allowed the FBI to review and redact the tapes before they were provided to McKevitt’s attorneys.

The judge’s order granting the unusual request called the government’s desire to prevent against the public disclosure of national security information a “highly compelling interest.”

Upon receiving Guzman’s order, Pallasch, McRoberts and Herguth appealed for a stay from the U.S. Court of Appeals in Chicago (7th Cir.). Within 90 minutes of their filing, the court declined the reporters’ appeal, refusing to stay the order.

The appellate court ruling came in a one-page, unsigned order. The court told the parties it would issue a written ruling on its decision at a later, unspecified date.

Without a stay from the appeals court, the three reporters were faced with a difficult decision: Comply with Guzman’s demand to forfeit their tapes, or keep the tapes and go to jail indefinitely for violation of the court’s order.

“We never expected the federal judge would rule against us. Then we really never expected that the Seventh Circuit Court of Appeals would refuse to even stay the order while we argued our appeal,” Pallasch said. “But we always figured if worse came to worse, we would never turn over the tapes, we would go to jail. So we had a very tough day Thursday when the appellate court, in the matter of an hour and a half, refused to issue a stay.”

The decision was especially hard because the one-page ruling from the appeals court gave no indication as to whether that court would ever be sympathetic to the journalists’ arguments.

After consulting with their lawyers, the reporters ultimately decided to obey the order.

“Our attorneys . . . made a very strong case to us that we were doing more harm than good if we went ahead with the plan to refuse to turn over the tapes and to go to jail,” Pallasch said. “Because then the Seventh Circuit would issue a full-blown opinion most likely reflecting the attitude expressed in the stay, and that would become more powerful precedent to be used against other journalists in the future, to order them to turn over their tapes in situations like this.”

Pallasch, Herguth and McRoberts gave the tapes to the FBI on July 4. According to Pallasch, the FBI reviewed and redacted the interviews over the holiday weekend, and the tapes were passed on to McKevitt’s attorneys for use at trial the following week.

Pallasch said he hoped their decision prevented a worse outcome, but he still had “mixed emotions” about finally handing over the tapes. It was not a pleasant way to spend the Fourth of July, he said.

Although the idea of the initial FBI review did not please the reporters, according to Pallasch, they did not make any legal objection to the U.S. government’s pre-screening of the tapes.

Damon E. Dunn, the attorney who represented Herguth, said the main legal concern from the journalists’ standpoint was the idea of the tapes being disclosed at all. They did not oppose review by a third party, the federal government, before the tapes went public.

Kenneth E. Kraus, an attorney at Schopf & Weiss in Chicago who has handled these kind of cases, said the U.S. government’s decision to intercept the reporters’ materials was uncommon.

“It is a product of the new, post-9-11 era in which we live,” Kraus said, noting the government’s increased concern about the release of national security information.

Kraus said he agreed that a reporter’s main concern is whether to disclose source materials at all, and not to whom they were ultimately revealed. But, he said, the FBI’s decision to intervene in the fight over the tapes could be a sign of future problems for the reporters.

Pallasch and Herguth will continue with plans to publish their book about Rupert following the McKevitt trial.

The reporters have had an understanding since the beginning of the project that the FBI would wish to review their manuscript before it is published, Pallasch said. This is common procedure, he said, for stories written about witnesses in the federal witness protection program. Rupert was in the program for two years until the start of McKevitt’s trial and will probably return to hiding once the case is over, Pallasch said.

With the tapes in the hands of the Irish lawyers, the three reporters are finished with their portion of the legal proceedings.

Although they still disagree with the legal decision-making in the case, the reporters will not seek an extended opinion — which, in any case, would be moot — from the appeals court that rejected their stay.

“Ideally, you’d like to think that people out there should feel comfortable if reporters are interviewing them for a news story, and they think the story is so interesting that it might make a good book, and they arrange with some reporters to do a book, that they can sit down, put on a tape recorder and talk freely for hours on end, sometimes saying things and then taking them back . . . and that those tapes will then not be handed over to the government, the FBI and the defense attorneys,” Pallasch said. “The judges did not appreciate that whole process in this.”

Attorney Dunn agreed.

“I think that there’s an insufficient appreciation for what is necessary to ensure that there’s an independent press,” he said of the two courts’ decisions. (In re Request for Order Requiring Pallasch, Herguth and McRoberts To Produce Documents and Things)