Source Or Journalist? p.8

By: Allan Wolper ON APRIL 14, two prosecutors from the U.S. Attorney's office from the eastern district in Brooklyn, and three FBI agents, sat across from a writer who asserted that TWA 800 was shot out of the sky by a United States Navy missile.
"They said if I didn't cooperate by the time I left the room they would do their best to indict me," said James Sanders. "It was real hardball stuff. Then they dragged my wife into it. They made it clear that if they could figure out a way to indict her, they would get her, too."
His wife, Liz Sanders, a flight service manager for Trans World Airlines in its St. Louis office, has taken a leave of absence from her job until the federal pressure subsides.
"She's scared to death of them," Sanders said. "But she is tough. She said she won't talk to them under any circumstances."
James Sanders, 51, is a retired police accident investigator from Southern California who lives in Virginia and co-authored Soldiers of Misfortune and The Men We Left Behind, two books on American prisoners of War.
Sanders investigated the TWA disaster from November to January as a freelance journalist for Inside Edition, a syndicated television program, then continued his research without pay at the Press-Enterprise of Riverside, Calif.
Sanders became the target of an FBI criminal investigation after the Press-Enterprise reported on March 10 that he obtained two pieces of seat fabric from Flight 800 and had them tested by West Coast Analytical Services, an independent laboratory in Santa Fe Springs, Calif.
The tests, for which he said he paid under $500, concluded that the reddish red residue on the seat sample was associated with rocket missile fuel.
That analysis was published as part of a front-page story by David E. Hendrix, and afterward in a book written by Sanders called The Downing of TWA Flight 800 ? The Shocking Truth Behind the Worst Airplane Disaster in U.S. History.
The Press-Enterprise story contained allegations that the seat tests and other documents "provide compelling testimony that a missile brought down the Paris-bound jumbo jet."
In his book, Sanders contended that the missile was fired during a U.S. Navy military training exercise held off the coast of Long Island the night that TWA 800 crashed, killing all 230 people on board.
James Kallstrom, the FBI's assistant director in charge of the TWA investigation, believes the red residue was adhesive and had nothing to do with missile fuel.
The FBI and the National Transportation Safety Board (NTSB) insisted the Press-Enterprise story was littered with "factual and interpretative errors."
FBI director Louis Freeh said May 5 that the crash was probably caused by "a catastrophic mechanical failure."

Who's the source?
The FBI is trying to get Sanders to tell them how the seat fabric was smuggled out of the heavily guarded Calverton, Long Island, hanger where technicians were reassembling the downed Boeing 747 jumbo jet.
The prosecutors say that whoever took the fabric was guilty of obstruction of justice and hinted that reporters who possessed it could be charged with hindering the investigation of the TWA crash.
The FBI also wants Sanders to tell them who gave him the official documents that he used to write his analysis of the missile theory.
Sanders nicknamed his source, "Hangar Man," but refused to say anything else about him except that he had access to the Calverton hanger.
Mel Opotowsky, managing editor of the Press-Enterprise, initially criticized the FBI for the way it treated Sanders and reacted to his newspaper's story.
"They wanted to question David Hendrix about his sources," Opotowsky said in an interview. "They are going too far. . . . They wanted to question the messengers instead of the message," Opotowsky continued. "They subpoenaed the telephone records of Sanders. They wanted to know whether Sanders was on our payroll."
Opotowsky pledged not to cooperate with the investigators. But two weeks later, Stuart Pierson, a Washington First Amendment attorney the paper retained to deal with the federal prosecutors, notified the U.S. Attorney's office that Sanders had not received any compensation from the newspaper.

Reporter or source
The U.S. Attorney impaneled a grand jury earlier this year to determine how Sanders, Hendrix and other journalists had managed to breach the FBI information barriers.
A grand jury subpoenaed Sanders' personal telephone toll records from Bell Atlantic on March 18, a little more than one week after the Press-Enterprise story was published, a development that sent a chill through journalistic circles.
"That kind of thing has been rare during the [Janet] Reno administration," said Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press. "I would remind the government there have been court decisions that call that kind of activity into question.
"People find it disturbing. If it can happen to journalists, it can happen to them. Those kind of subpoenas are so sneaky because you don't find out until a source calls and tells you about it."
The grand jury subpoena might have violated the Department of Justice's own guidelines which says prosecutors need written permission from Reno to subpoena material from a journalist.
Valerie Caproni, the assistant U.S. Attorney leading the grand jury investigation, said she subpoenaed Sanders without Reno's permission because she did not believe he was a working journalist.
"We can find no support for the assertion that Mr. Sanders is a member of the media," she said in an April 1 letter to Jeffrey Schlanger, who is Sanders' attorney. "We would note in the article published in the Press-Enterprise that Sanders is identified as a 'Virginia-based writer and retired Southern California policeman.'
"All indications from the articles are that Mr. Sanders was simply a source of information ? not a colleague. . . . The fact that he received no journalistic credit for his allegations persuaded us that his claim to be a member of the media is nothing more than an attempt to shield himself from a legitimate grand jury inquiry."
Sanders was working as a paid freelance journalist for Inside Edition when he acquired the seat samples, but was fired as soon as King World executives, who produce the show, found out about it.
Jan Murray, senior director of publicity for King World, said Inside Edition decided at that point to separate themselves from Sanders' investigation.
"We didn't want to have any part in gathering evidence," Murray said.
Sanders received a $125,000 advance from Zebra Books, a division of the Kensington Publishing Corp., for the book he wrote about the TWA disaster.
The FBI confirmed that relationship on April 7 when it subpoenaed the contract Sanders had signed with his publishers. The subpoena, addressed to Paul Zinas of Zebra, said: "You may comply with the subpoena by providing the requested documents to special agents Jim Kinsley or Anthony Jackson of the Federal Bureau of Investigation."
Zinas, under protest, sent the contract to the FBI.
Kirtley said Sanders met the legal standard for journalistic protection because he had written two previous books and was apparently using the information he acquired for the paperback book he was writing on TWA.
She pointed out that a 1993 federal court case, Shoen vs. Shoen, protected book authors from being subpoenaed.
"He doesn't have to work for a newspaper to be a journalist," Kirtley pointed out.

Sanders and the Enterprise
Sanders said the Press-Enterprise assured him he would be working at the newspaper as a journalist to make certain he would be protected from disclosing his sources under the California shield laws.
"I demanded that the Press-Enterprise get confirmation from an outside expert attorney that I would, in fact, be considered a journalist before I would fly out there," Sanders recalled. "We waited four days for their legal people to approve it."
Sanders also said that he wrote "quite a bit" of material for the newspaper's series on TWA, including one article for which he thought he would get a byline.
"They said my story was too technical and they took my name off and gave it to Loren Fleckenstein, another reporter to rewrite," Sanders explained.
Schlanger pointed out that Sanders worked in the newsroom and wrote much of the material that became part of the newspaper articles written by David Hendrix. Afterward, Sanders used the information he acquired for his book on TWA.
"Andy Roth said the paper had no problem saying Jim [Sanders] collaborated on the TWA story," Schlanger said.
Roth, an attorney who represents the Press-Enterprise, confirmed Schlanger's analysis of Sanders' role at the newspaper.
"It is fair to describe Sanders as a collaborator, and not just a source," Roth said in a telephone interview. "Sanders was gathering news to be published in the Press-Enterprise."
The editorial side of the newspaper had a different interpretation of Sanders' relationship with the reporters and editors there.
Fleckenstein said he interviewed Sanders and quoted him, but did not work with him on anything.
"Sanders was a source," Fleckenstein said. "I interviewed him as a source."
Opotowsky, the managing editor, characterized the relationship in virtually the same language.
"James Sanders was a source for our stories," Opotowsky said. "He was a very good source. A major source for our story, but not the only one."
But Hendrix saw Sanders's role at the newspaper in a different context.
"He pursued the story as a journalist," said Hendrix. "He provided major research for us, but he did not collaborate on it."

First Amendment concerns
When Sanders walked into the U.S. Attorney's office last month, the prosecutors agreed to treat him as a "news gatherer," a legal distinction that provides journalistic protection to writers.
But that classification did little to defuse the tension in the room, which quickly became a battleground on the constitutional rights of journalists.
Caproni, the assistant U.S. Attorney who runs the criminal division, warned Sanders that he would have to name his sources to avoid prosecution.
Benton Campbell, another assistant U.S. Attorney and FBI agents Jackson and Kinsley, who were involved in the book contract subpoena, and George Gabriel, also participated in the questioning.
Sanders said he sat silent under the advice of Schlanger, a former senior counsel with the Manhattan District Attorney's office, who represented him at the meeting.
"Jeff told me not to say anything," Sanders said. "But they just kept coming at me. When they saw nothing was going to happen, it was like they said, 'OK, you think you are a tough guy,' and they dragged Liz's name out.
"They tape-recorded the session. So if they want to, they can dispute anything I am saying. I'll sign anything so the entire tape can be released to the world."
"Jeff Schlanger used to be a state prosecutor. He said afterward that he had never seen the hatred for one person as they exhibited toward me. He prosecuted John Gotti so he has seen a lot of hatred."
After the prosecutors staked out their legal position, Schlanger gave them a lecture on First Amendment safeguards for reporters.
"Our Constitution says it is equally important that we have just as much a right to investigate the government as much as they have to investigate us," Schlanger recalled. "That is what freedom of the press is all about.
"And freedom of the press was just as important to the framers as the prosecution's mandate to get to the bottom of a leak. Our mandate is to protect our sources and the independence of the press."
The prosecutors indicated that they would not subpoena Sanders to testify before a grand jury because they don't want to be perceived as persecuting journalists.
But they apparently have not decided whether to seek an indictment against him for obstruction of justice for refusing to identify "Hangar Man."

Journalists and spouses
The prosecutors tried to drive a legal wedge between James Sanders and his wife, Liz, by suggesting she retain another lawyer to represent her.
"They accused Jeff of having a conflict of interest by representing both of us," James Sanders said. "The whole idea is to force us to spend more of our money defending ourselves. It won't work. Liz
hasn't done anything wrong."
Sanders said the FBI had been pressuring TWA to force his wife, one of their administrators, to talk to the prosecutors.
"They want her to go face to face with the feds in New York," Sanders said.
Schlanger said he advised the Sanders there were no problems involved in representing both of them at the moment, but warned that there might be in the future.
"There is no conflict of interest in the current posture of the case and they have advised me to act as an attorney for both of them," he said. "I will not represent both of them if either one of them was indicted."
The prosecutors told Liz Sanders that she will probably be subpoenaed to appear before a grand jury so she can be questioned about her husband's investigation of the TWA crash, according to Schlanger.
He said she would willingly go before a grand jury if she were granted immunity but will invoke the spousal privilege that views conversations between husband and wife as private.
"A spouse can't be forced to testify against her husband," Schlanger said. "And she doesn't know anything about his sources anyway."
The FBI, which is starting to receive some unwanted attention for its media inquisition, has told news executives that it is looking for thieves, not sources.
"We are not going after leaks, we are trying to find people who take forensic evidence out of the Calverton, L.I., hangar and learn how they got it out," one agent reportedly told a newsperson.
William Muller, executive assistant in the U.S. Attorney's office, declined to publicly acknowledge the existence of a grand jury investigation.
"I am not allowed by federal law to discuss any matter that might be before a grand jury or even whether a particular grand jury exists," Muller explained.

?(Author James Sanders was questioned by the government and his records subpoenaed following publication of an
article in the Riverside, Calif., Press-Enterprise, in which Sanders was quoted as a source. Sanders also claims to have written an article for the newspaper which was rewritten and published without his byline. Is he a journalist or a source? That is the question currently under debate and the answer will determine if Department of Justice
guidelines were violated.) [Photo & Caption]

?(Wolper, professor of journalism at the Newark campus of Rutgers University, covers campus journalism and other topics for E&P.) [Caption]

?( U.S. Attorney General Janet Reno (above, left) apparently did not give permission to an assistant U.S. Attorney to subpoena the records of journalist James Sanders, who had obtained two pieces of seat fabric from TWA Flight 800 which crashed last July. If this is the case, it would be a violation of Department of Justice guidelines. The recovered wreckage plane is being pieced together in a hangar in Calverton, Long Island (above, right).) [Photo & Caption]

?("Our constitution says it is equally important that we have just as much a right to investigate the government as much as they have to investigate us. That is what freedom of the press is all about.") [Caption]
?(-Jeffrey Schlanger, formerly of the Manhatten District Attorny's office, who is now the lawyer for James Sanders) [Photo & Caption]

? E&P Web Site:
?copyright: Editor & Publisher May 17, 1997


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