Handling of subpoenas under DHS worries journalists

From the Winter 2003 issue of The News Media & The Law, page 7.

By Wendy Tannenbaum

When the new Department of Homeland Security gets into gear, journalists hope it will adopt guidelines to protect them from unnecessary subpoenas. If it does, it would be wise to follow tested policies already in place at the Justice Department.

Those policies, “Attorney General Guidelines on Subpoenaing the News Media,” balance the public’s interest in a free flow of information with the interest in effective law enforcement. In place for nearly three decades, the guidelines spell out specific procedures the department must follow when it subpoenas a member of the news media.

Before a federal prosecutor may issue a subpoena to a reporter, Justice Department regulations require that “[a]ll reasonable attempts should be made to obtain information from alternative sources.”

The regulations also require that prosecutors negotiate with the media. No subpoena may issue without authorization from the Attorney General, unless the material sought already has been published, and the news organization has consented to disclosure.

In addition, Justice attorneys can subpoena only information that is “essential” to a case.

“The subpoena should not be used to obtain peripheral, nonessential, or speculative information,” according to the rules.

The guidelines in place at Justice also limit the use of subpoenas to get at a reporter’s telephone records. The provisions concerning phone records are rigorous: The department must have grounds to believe a crime has been committed, the information sought must be essential, and the reporter must be given timely notice of the Attorney General’s authorization of the subpoena.

While the Attorney General’s guidelines do not have the force of law, experience has shown that they usually are respected and followed by department attorneys.

In May 2002, for example, federal prosecutors in Manhattan withdrew a subpoena to MSNBC after they realized they had not obtained authorization from the Attorney General.

DHS staff did not return phone calls to discuss whether the topic of subpoenas to news media has been discussed by officials there.

Whether DHS will even use subpoenas and search warrants is unclear. Legal experts in the relatively new field of homeland security are not certain whether the department will focus on law enforcement or will serve as simply a clearinghouse for security-related information.

According to Mark Corallo, a Justice Department spokesman interviewed before DHS officially opened, the new department would not have law-enforcement authority, and all such investigatory powers will remain with justice.

The main function of DHS is to “synthesize and analyze” information, not to investigate, Corallo said.

Nevertheless, one of the major agencies that has been subsumed into DHS is the Immigration and Naturalization Service, which has had law enforcement powers rivaling those of Justice.

The Bureau of Border Security, also transferred to DHS, also has the power to perform investigations and inspections, experts say. The BBS will be responsible for enforcing laws relating to visa issuance.

President Bush told Congress in June that the mission of the new department would be “to prevent terrorist attacks within the United States, to reduce America’s vulnerability to terrorism, and to minimize the damage and recover from attacks that may occur.”

Media advocates hope that this broad missive will not conflict with the public’s right to a free and unfettered press.

Charles Tobin, a media attorney in Washington, D.C., said the Bush government — and particularly the Justice Department under Attorney General John Ashcroft — signaled even before September 11, 2001 that it is far less concerned with press freedom than previous administrations have been. He said Ashcroft’s anti-media tendencies may influence whatever policies are undertaken in the fight to preserve the homeland.

Tobin said he always takes the position, when dealing with any federal agency, that the Justice Department guidelines govern any and all news media subpoenas issued from the government.

Subpoenas to journalists could compromise the press’s ability to remain independent. Often, subpoenas seek disclosure of confidential sources, or information that was never published or broadcast. Journalists are concerned about not being seen as investigatory resources for the government, so they resist complying with subpoenas. They often cite the Justice Department guidelines as authority for arguing that subpoenas to newsgatherers are improper.

The Attorney General guidelines have provided a workable balance between the needs of government and the right to a free press. Homeland Security Department guidelines similar to those at Justice would provide predictability for members of the news media.