Don't Ask, Don't Tell

Jacky Rowland was the Belgrade correspondent for the British Broadcasting Corporation (BBC) from 1998 to 2001. She covered NATO’s war against Yugoslavia, ethnic cleansing in Kosovo, and the massive street protests that ousted Yugoslav president Slobodan Milosevic from power.

Rowland never interviewed -- or even met -- the reclusive and autocratic Milosevic during her Belgrade assignment. But her 1999 Kosovo dispatches recently gave Milosevic an opportunity to interrogate her in an international court of law. She was peppered with questions from the former Yugoslav leader, on topics ranging from the BBC’s alleged bias against Yugoslavia to the physical state of corpses Rowland observed in Kosovo.

Milosevic’s chance to flip the journalist/politician dynamic is nothing unusual for this court, the International Criminal Tribunal for the former Yugoslavia (ICTY), based in The Hague, where Milosevic is on trial for war crimes, including genocide and crimes against humanity. To be sure, his ability to question Rowland rests on a basic principle of criminal jurisprudence: the right of defendants to confront witnesses against them. But many US journalists and news executives see tremendous risks in such encounters. They argue that the safety of journalists in war zones, freedom of expression, and the credibility of media outlets are at stake. When journalists take the stand to testify against war criminals, they say, the lines of objectivity and neutrality that allow the press to gain access to conflicts, to obtain vital information for readers, and to stay out of harm’s way are blurred beyond recognition -- and thus rendered meaningless.

But even more than the act of testifying, it is being compelled to do so by government that leaves US media outlets cold. A recent ICTY decision to enforce a subpoena issued to former Washington Post reporter Jonathan Randal in January 2002 has turned up the heat on the matter. An impressive number of US media heavyweights -- including every major American TV news network and newspaper chain -- has joined Randal and the Post’s battle to quash the subpoena. In all, 34 news organizations have signed on to an amicus curiae ("friend of the court") brief on Randal’s behalf. But only a smattering of those who joined the petition to the court are from Europe -- and those are mostly from the Balkans, where heightened sensitivity surrounds war-crimes trials. This geographic lopsidedness reflects the deep transatlantic rift over the role of journalists in international justice.

Feelings about this issue -- particularly the prospect of receiving a subpoena from an international court -- run strong among US journalists. Their opposition to such judicial intrusiveness is informed by a long American legal tradition that prevents governmental interference with the press. "The Constitution matters a lot," says Washington Post managing editor Steve Coll. "There are explicitly spelled-out roles."

A June 20 column by New York Times writer William Safire succinctly sums up prevailing US media sentiment -- so much so that it was filed with the amicus brief as "Exhibit B." "The harassment of Randal," wrote Safire, "comes down to a case of self-righteous European judges, perhaps contemptuous of America’s First Amendment, reacting angrily to any affront to an authority they assert is ‘not bound by the laws and judicial pronouncements of any state.’ Making law by fiat, these judges tell the world’s journalists that a U.N. tribunal has ‘a right to question their report’ -- a power beloved by totalitarians and forbidden to government by the U.S. Constitution."

European journalists see it differently. Rowland, for one, argues that competent and professional journalists have little to fear from the adversarial process of international courts. "A reputable news organization should have nothing to hide and no guilty conscience as to how it gathers information and reaches editorial decisions," she says. "If a news organization has something to hide, or is not being frank and honest in editing its news coverage -- then that is what the bosses should be worrying about and addressing, before they start thinking about the consequences of journalists taking the witness stand."

Rowland's Testimony made worldwide headlines, but it was not a new thing. Other British journalists have testified in ICTY proceedings -- including BBC Bosnia correspondent Martin Bell and Observer writer Ed Vulliamy.

In May, Vulliamy wrote a piece for the Observer in which he argued strongly against the attempt to set Randal’s subpoena aside. Admitting that his experience in the ICTY’s witness box was "lonely" and "intimidating," Vulliamy nonetheless saw it as an obligation. "My belief is that we must do our professional duty to our papers and public, and our moral and legal duty to this new enterprise," he wrote. "Why should journalists of all people -- whose information will be of such value -- perch loftily above the due process of law?"

From the US perspective, the answer to that question lies in the particular dangers faced by journalists, who are often called upon to bird-dog government malfeasance and report on ghastly war crimes, such as those now the subject of proceedings in The Hague. It’s a role that often places the press squarely at odds with the powers that be.

In Randal’s case, however, the ICTY has concurred with Vulliamy’s view. Part of the court’s reasoning rests on the fact that the reporter put himself in the ICTY’s sights. In August 2001, Randal gave a statement to the ICTY’s Office of the Prosecutor concerning an article that he wrote for the Washington Post in 1993. The piece quoted Radoslav Brdjanin -- the former Bosnian Serb vice-president now on trial at the ICTY for genocide, crimes against humanity, and violations of the Geneva Convention -- about his views on ethnic cleansing.

In his statement, Randal told prosecutors: "I would prefer that my statement and article stand for themselves. However, if that were not possible, I would be willing to testify that the quotes accredited to Brdjanin are true and accurate [emphasis added]."

Predictably, Brdjanin’s lawyers insisted that Randal appear before the court. At the prosecution’s request, the ICTY issued the subpoena on January 29, 2002. In May, Randal and the Post moved to set it aside. They argued, among other things, that journalists should receive a "qualified" privilege to prevent the court from compelling their testimony in any but the most extreme cases.

The ICTY’s Trial Chamber II rejected Randal’s initial appeal. Considering some of the hairsplitting employed to argue the journalist’s case, its decision may be understandable. For instance, to support the premise that Randal’s testimony is not "essential," the amicus brief cites the fact that he does not speak Serbian, and thus "cannot testify as to the words spoken or the context of the defendant’s responses."

As legal arguments go, this may hold water. But in terms of journalistic practice, it’s simply absurd. It also flies directly in the face of another statement made by Randal to the prosecutor back in August 2001: "I think it is important to note that any quotes in my article that are attributed to Mr. Brdjanin are his own words. I covered wars and other nastiness as a calling for more than 40 years and took particular pride in ensuring that all quotes were absolutely accurate. Quotes are the coin of the calling, especially in war situations."

First Amendment lawyer Floyd Abrams, who is spearheading the amicus effort on Randal’s behalf, says that he has "deliberately refrained" from making the language argument (although he did include it incidentally in the brief as part of a broader point addressing Randal’s need to appear). But in terms of the larger picture, what troubles Abrams and others involved in the amicus campaign is that the court rejected a chance to formulate a qualified privilege for journalists.

In ruling on Randal’s case, the judges went beyond determining that Randal’s case did not meet criteria found in US and European law that exempt journalists from testifying, such as protecting confidentiality of sources (Randal’s source was Brdjanin) and preventing personal risk to the journalist (Randal is retired from journalism and now writes books).

"What is worse," the court said, "is that [Randal] expects this trial chamber to assert the journalistic qualified privilege as he would like to see it, basing the same on a collage of decisions, mainly from the United States, which almost in their entirety dealt with cases and situations completely different to his."

The groups behind the amicus campaign argue that the court has missed a vast forest -- comprising legal precedent, genuine risks to reporters’ safety, and vital (but informal) exchanges of information between journalists and investigators -- in order to hack down one particularly obstinate tree. They worry that the rejection of Randal’s appeal might harden into a new legal precedent, allowing wide-ranging subpoena powers against journalists.

"Amici are vitally interested in and deeply concerned," argues the brief, "about any ruling that could result in compelling journalists -- particularly war correspondents -- to become witnesses against their sources, thus imperiling their access to information, their objectivity and even their safety."

Abrams says that "there’s nothing wrong with a court making a decision based on the facts of the case without writing a grand treatise. The problem here is not that the decision was narrow, but that what the court did say was so unhelpful -- and that it pointed in the wrong direction."

Proponents of journalistic privilege in international courts say that among the most "unhelpful" aspects of the ruling is its potential to increase the risks attendant upon the already perilous task of covering wars.

According to the International Press Institute, 55 journalists were killed last year in the course of their work. Those who favor the establishment of journalistic privilege argue that without such a shield against compelled testimony, war criminals and other combatants will see reporters as the agents of an international law that may determine their fate at some future date -- and deal with those journalists accordingly.

In fact, the ICTY has already recognized the existence of such dangers in conflict zones for peacekeepers, diplomats, and Red Cross workers -- and the court has worked out agreements to protect these groups from being compelled to testify.

Alex Lupis of the Committee to Protect Journalists (CPJ) -- which also joined the amicus brief -- argues that "it’s hard for a judge sitting in Holland to determine how compelling a journalist to testify can affect their safety."

Coll observes that on one of his reporting trips to the brutal climes of Sierra Leone, he met a warlord who "had all kinds of downloaded pages about war crimes. He was educating himself: ‘What are my vulnerabilities in any peace deal?’

"It’s a smaller and smaller world," Coll continues. "You’re kidding yourself if you don’t think the guys on the other end of [international justice] are not aware."

The dividea between the European and American views on this question runs deep. The rift is based in part on differing norms of journalistic accountability. Many European nations have "media tribunals," such as the UK’s Press Complaints Commission (PCC), which entertain complaints about unethical journalistic practices brought by the public. In the case of the PCC, publications are required to print the full adjudication of the complaint if the journalist is found to have violated the organization’s Code of Practice. But in the US, except in the course of work by media critics and discovery and trial in libel cases, journalists rarely encounter such intrusion into and assessment of their practices.

The amicus brief filed in Randal’s appeal argues strongly for a US approach to the problem -- including a recommendation that the ICTY and other courts adopt something close to the stringent guidelines laid out by the US Department of Justice for issuing any subpoenas to journalists. These guidelines mandate not only that a journalist’s testimony be essential and exclusive to a case, but also require prosecutors to make strenuous efforts to find the information elsewhere and to negotiate with the media outlet involved. As a final check, such subpoenas also require the signature of the US attorney general.

But arguing strongly from American precedents may not be a winning strategy when the US government is otherwise trying to smother the new International Criminal Court (ICC) in its crib. After all, both the Bush administration and the US Congress have actively sought to undermine the ICC -- a permanent court established in The Hague this past July, in contrast to ad hoc tribunals such as the ICTY, which was set up specifically to address matters relating to Yugoslavia -- with new laws and policy initiatives aimed at exempting US citizens from its jurisdiction. A law passed by the US Congress and signed by President Bush in August actually authorizes military action against the Netherlands if a US citizen is placed in the ICC dock.

"It’s a problem, no doubt," says Abrams. "I wish I could have submitted the attorney general’s guidelines from Corsica or Tasmania. But this is something that I thought would have some persuasive impact. The American approach is designed to cushion the conflict between the judiciary and the press."

US journalists who must negotiate the new atmosphere of distrust created by the first subpoena ever issued by the court to a US journalist believe that such a cushion is needed -- as much for the ICTY and other international tribunals’ sakes as for their own.

One of the most fascinating documents in the amicus brief is a deposition submitted to the ICTY by Boston Globe foreign correspondent Elizabeth Neuffer, author of The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda (Picador, 2001). In her statement, Neuffer sketched out the cozy and informal relationship between journalists and war-crimes investigators that she witnessed when she covered the war in Bosnia for the Globe in the 1990s.

"On several occasions," said Neuffer in her deposition, "when I had general information that was of no particular use to my stories but related to war-crimes cases, I passed it along to staff from The Hague." One such instance, she notes, involved evidence that helped uncover the massacres that occurred after the UN "safe area" Srebrenica fell to Bosnian Serb forces in 1995.

Neuffer also carefully laid out the ways in which journalists cannot cooperate with investigators -- particularly when confidentiality of sources is at stake: "If the Tribunal were to establish a legal precedent that journalists could be compelled to testify before a war-crimes court -- about either confidential or non-confidential sources -- I sincerely believe much of the reporting I did and continue to do on war crimes would not have been possible."

Neuffer’s deposition stuck primarily to the impact of the Randal case on her ability to do her job in a conflict zone. But lurking in her words about informal cooperation and help for ICTY investigators from journalists is an implicit warning that such unilateral cooperation may end if clearer guidelines -- which are closer to US standards -- are not adopted by international courts.

Boston Globe foreign editor James Smith says that the milieu described by Neuffer in her deposition "was some years ago, in a different context from the present situation" facing journalists in the wake of the Randal ruling. Smith points to the predicament of journalists covering the allegations (later found to be erroneous) of massacres of Palestinian civilians by Israeli troops in the Jenin refugee camp this past spring as just the sort of situation in which the Randal subpoena would give Globe reporters and editors pause. At the time that UN inspectors were unsuccessfully seeking access to the site, Smith says: "We were out there [in Jenin] testing the implications of a massacre." By the logic of the Randal ruling, this is precisely the sort of situation in which a journalist who gained the access denied to investigators could be subpoenaed.

For his own part, says Smith, "I’m of the view that one should maintain an arm’s-length distance from investigators from one side or another." He adds that the Globe has no formal policy -- pro or con -- as yet on journalists’ cooperating with investigators.

The Post’s Steve Coll says that the Randal case has also started a process of reassessment at his newspaper. "I can’t say that we’ve issued new directives," he says. "The assistant managing editor for foreign news may have started discussions about this. On the other hand, everyone on our staff is aware of the Randal case and is cautioned by it. I know if I was out in the field and ran into investigators, in light of this issue I’d be wary, as are a great number of my colleagues."

Asked if he could imagine a situation in which the Post would place a blanket ban on journalists’ interacting with investigators, Coll is blunt: "Yeah, I can. I don’t know that we’d have an absolute policy, but we would spend more time policing the interaction of our reporters with investigators, just as we do with [reporters who work] with the police. A well-educated reporter is aware of the obvious perils of being in possession of materials of possible interest [to law-enforcement officials]. The situation has analogies that are not wildly off base."

Faced with a future of journalists fighting off international-tribunal subpoenas and news organizations blocking their reporters from talking to investigators, a strong case can be made that ICTY and other tribunals should institute clear rules to govern the interaction of international courts with journalists.

The Appeals Chamber of the ICTY will hear Randal’s case on October 4 in The Hague. But ICTY spokesperson Jim Landale says that no one should expect separate guidelines like those of the US Department of Justice to be issued by the court.

"I don’t think there will be any formal guidelines as such, aside from the ruling," says Landale. "I can’t guess or predict. That’s up to the judges."

On reflection, the transatlantic tussle over the testimony of journalists has all the hallmarks of a useless turf war. War-crimes tribunals need the bravery of journalists who uncover crimes. Journalists need a legal framework within which they can do their jobs and serve the public good.

The ICTY could lower the temperature by stepping back from the particular frustrations posed by the Randal case and reassessing the issue of journalists’ roles at the court.

A consensus supporting such a reexamination exists across the Atlantic as well as in the US. "I don’t see what makes state officials and [United Nations Protection Force] commanders so special," says Rowland. "Hey, let’s exempt DJs and beauticians as well. Given the brouhaha, controversy, and strong feelings provoked by the Randal case, and the general issue of journalists testifying, it does look as if the ICTY is going to have to look again at how it deals with journalists as potential witnesses."

Taking the time to offer protections to all journalists -- who share risks quite similar to those of the Red Cross and peacekeepers -- might also pay dividends for the future of international justice.

Richard Byrne is a freelance writer based in Washington, DC. He can be reached at richardbyrne1@earthlink.net

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