NEWS MEDIA UPDATE · FLORIDA · Confidentiality/Privilege · Aug. 11, 2005
Subpoenas for New York Times interview tapes dropped
Aug. 11, 2005 · The Department of Homeland Security announced Monday it will not enforce subpoenas it had issued to The New York Times for tapes of interviews with a Cuban bombing suspect.
Cuban militant Luis Posada Carriles admitted to Times writer Ann Bardach in a 1998 interview that he masterminded a 1997 bombing campaign in Cuba. Posada later denied his involvement.
The Department of Homeland Security subpoenaed Bardach and The Times in May, seeking copies of all tape recordings and documents related to Bardach’s interview. Attorneys for The Times filed a motion to quash in federal court in Miami.
Although the Department of Justice has guidelines that urge investigators not to subpoena reporters unless no alternate source is available, DHS has not adopted similar requirements for its agents. The Reporters Committee urged DHS Secretary Michael Chertoff in a June letter to consider implementing similar guidelines for reporter subpoenas. Chertoff did not respond.
U.S. Attorney R. Alexander Acosta notified The Times and Bardach Monday that DHS will drop its subpoenas. He did not explain why.
Tom Julin, an attorney for The Times, said DHS might have dropped the subpoenas because it was afraid its arguments for obtaining the subpoenaed materials would backfire later in its attempts to prevent Posada from gaining asylum. In order to force The Times to release the tapes, DHS would have to show that the subpoenas were issued to fulfill a “compelling” government interest, a requirement in the federal court system’s 11th Circuit, which includes Miami. At the same time, however, the department had been claiming it already had sufficient evidence to oppose Posada’s requests for asylum.
George Freeman, associate general counsel for New York Times Co., said the information on the tapes was available elsewhere.
“There was so much material about Posada that was in the public sphere,” he said. “We couldn’t imagine that the audio tapes which they were seeking could be critical, since there was so much information about him already out there, including articles that we had written in The Times.”
Regardless of the exact motives behind dropping the subpoenas, reporters privilege advocates see the decision as a movement in the right direction.
“[The decision] is good news, but better news would be if DHS adopted the DOJ guidelines. And even better news than that would be if the Justice Department did a better job of following its own guidelines,” said Paul McMasters, First Amendment ombudsman for the Freedom Forum. “The guidelines are great, but they’re not much help if they’re not followed, as we’ve seen with recent entanglements of reporters with federal investigations.”
(Media Counsel: Tom Julin, Hunton & Williams, Miami) — AG