By: allan wolper
The Justice Department’s case against an unpopular journalist
is a lesson for all journalists, says a freedom of the press organization
The U.S. Justice Department’s prosecutorial use of a collection of e-mail messages between an unpopular journalist and his sources represents a long-term threat to all journalists, according to the Reporters Committee for Freedom of the Press.
The committee’s warning came amidst disclosures about the extent of America Online e-mail files obtained by the Justice Department during its investigation of James Sanders, a retired Seal Beach, Calif., police officer turned journalist.
Sanders, author of The Downing of TWA Flight 800: The Shocking Truth Behind the Worst Airline Disaster in U.S. History, was indicted in January on charges that he conspired to steal seat samples from the Long Island, N.Y., hanger where the crashed TWA plane was being reassembled. The indictment resulted from a federal grand jury investigation of press leaks during that FBI
Sanders is also co-author of two books about Vietnam War POWs, and a former producer for the nationally syndicated TV show, Inside Edition.
He became an FBI target after the Riverside, Calif., Press-Enterprise reported on March 10, 1997 that the seat samples Sanders possessed showed residue left by an anti-aircraft missile explosion. Sanders collaborated with Press-Enterprise reporter David Hendrix to produce the story.
Shunned by Mainstream Media
Mainstream news organizations have shown little interest in Sanders’ writings or legal plight because his theory about a missile strike against Flight 800 ? an idea originally publicized by Pierre Salinger ? has been so universally debunked and ridiculed by respected aviation and military authorities.
Sanders was the subject of another records controversy in 1997 when the U.S. Justice Department admitted that it broke its own rules by failing to get Attorney General Janet Reno’s approval before secretly subpoenaing Sanders’ telephone account files. Section 28, CFR, 50.10 of federal regulations requires that U.S. attorneys follow that procedure when seeking records of journalists. The U.S. attorney’s office later apologized to Sanders.
Meanwhile, the Justice Department also went after and obtained ? in a manner whose details are not entirely clear ? significant numbers of the e-mail messages Sanders exchanged with his sources.
Copies of those e-mail messages are part of a lengthy list of pretrial discovery material the Justice Department recently sent to Sanders’ attorneys.
That disclosure has prompted Jane Kirtley, executive director of the Reporters Committee For Freedom of the Press, to warn that the Justice Department often nibbles away at First Amendment rights by going after journalists espousing unpopular causes.
“Justice tests the waters to see how things go down with the legal and media communities,” Kirtley said, “but then the next time, they’re subpoenaing Fox Butterfield of the New York Times. They figure, ‘hey, if it didn’t raise eyebrows before, why not do it there.'” Kirtley also said the case demonstrated why journalists must be concerned about using e-mail to communicate with sources for sensitive stories. “I always assume that someone is reading my e-mail,” she said.
Two Batches of E-Mail
E&P has learned the Justice Department has at least two batches of Sanders’ e-mail ? one involving his attempts to find an organization to test the TWA seat covers and a second set involving his relationship with the laboratory that ultimately conducted the tests.
Federal electronic laws prohibit law enforcement agencies from gaining access to private e-mail transmissions without a warrant.
The Justice Department emphasizes that it violated no federal laws in acquiring Sanders’ e-mail correspondence, noting that some material was turned over to them voluntarily.
AOL’s legal department acknowledges that the online service was served a subpoena by the Justice Department in April of 1997 but says the only information it gave to that agency was confirmation that Sanders had an AOL e-mail account.
“We were asked for basic information,” said John D. Ryan, an attorney who handles law-enforcement inquiries for AOL. “We never turned over any content-related material.” Ryan declined to provide E&P with a copy of the subpoena, noting it was AOL policy to keep those records private.
AOL says that it immediately contacts its members when it receives a civil court subpoena, but does not when it involves a criminal case.
Tricia Primrose, an AOL spokesperson, said it will give its clients an opportunity to fight any civil summons. “We give them 10 days or so to do that,” Primrose said. “But we do not notify anyone about subpoenas from law enforcement.” Primrose also noted that AOL treats journalists and nonjournalists the same way. “We don’t differentiate between reporters and our other customers,” she said.
Benton J. Campbell, an assistant U.S. attorney from the Eastern District of New York, a branch of the Justice Department, told E&P that AOL’s explanation about its subpoena was an accurate one.
He declined to explain why the Justice Department needed to confirm that Sanders had an account with AOL, noting that much of the case would become clear if it went to trial.
The E-Mail Message Content
The first of the two sets of e-mail obtained by the Justice Department are messages exchanged
between Sanders and Tom Cavallero, a California digital computer expert who works extensively with the police forensic experts.
Sanders asked Cavallero in his e-mail messages if he knew any agencies that might be willing to test for solid fuel rocket residue.
The clients for the tests, Sanders wrote to Cavallero, were a “national TV newsmagazine (Inside Edition) and a national newsmagazine (Aviation Week).”
Cavallero told E&P in a telephone interview from his West Coast home that he voluntarily turned over all related e-mail records to the FBI.
“I was working as a volunteer in the Placer County sheriff’s office, which is near Lake Tahoe, when the story about Sanders first came out,” Cavallero explained.
“Then one day I’m watching television (NBC’s Dateline) and I see him. I didn’t know that the seats had been stolen. I didn’t want to be a snitch, but I felt like I was in a bind. I asked my sergeant what to do. He suggested that I call up the FBI and I did.
“I gave it to the FBI because I didn’t want
people to think they couldn’t trust me,” he explained.
Sanders eventually had the samples analyzed at the West Coast Analytical Service, an independent laboratory in Santa Fe Springs, Calif., which he said concluded that the red residue on the seat material came from a missile.
The Justice Department also has all the e-mail between Sanders and the Analytical Service.
The department also has issued subpoenas to assorted people who regularly communicate with Sanders, and he is concerned that some of them might have copies of more of his
e-mail correspondence beyond the two sets the Jus-tice Department has already disclosed.
Sanders is worried that other sources for his investigation might now be known to the government.
“I also sent lots of e-mail to journalists and many of them gave me material when they couldn’t get their own news organizations to publish it,” he said.
?(Journalist James Sanders was the subject of a grand jury investigation into press leaks that occurred during the FBI’s TWA Flight 800 crash probe. The Justice Department has obtained copies of AOL e-mail messages between Sanders and his sources.) [Caption & Photo]
?(Wolper is a professor of journalism at Rutgers University and an E&P reporter.) [Caption]
?(Editor & Publisher Web Site:http://www.mediainfo. com) [Caption]
?(copyright: Editor & Publisher August 22,1998) [Caption]