BILL OF WRONGS -- THE EXECUTIVE BRANCH'S ASSAULT ON AMERICA'S FUNDAMENTAL RIGHTS
Chapter 3: THE KIDS ARE ALRlGHT
"Congress shall make no low ... abridging the freedom . .. of the press." Our framers did this for a reason. There are countries today where journalists are punished and imprisoned for reporting on their government. If anyone here wants to imprison journalists, I invite them to spend some time in China, Cuba, or North Korea and see whether they feel safer. -- Representative JANE HARMAN, May 25, 2006
Kill a chicken to scare the monkeys. -- Chinese proverb
On the morning of May 8, 2007, Joshua Wolf was one of six federal inmates in handcuffs and jailhouse jumpsuits walking from the Bureau of Prisons shuttle to the garage entrance of the Phillip Burton Federal Building on Golden Gate Avenue in San Francisco. The bus had made the thirty-five-mile trip in from the Federal Corrections Institute at Dublin, where Wolf was serving his 199th day in custody. He was doing soft time (Dublin is minimum security) on a federal tail-light rap.
It's a complicated story.
Wolf had not spent 199 days in jail for breaking a forty-five-dollar tail-light lens on a San Francisco police squad car. He was, in fact, charged with no crime. He's a blogger and freelance news videographer. On July 8, 2005, he was covering an Anarchist Action protest in San Francisco. Although no one was ever brought to trial, several crimes were committed as bands of masked anarchists marched and ran through the Mission District. Most of what happened was political vandalism. Store and office windows were splashed with paint. Newspaper racks were thrown onto the streets. Cars and buses were covered with graffiti. A taillight on a police car was broken. But San Francisco police officer Peter Shields was hit on the back of the head and suffered a severe skull fracture.
Breaking windows, refusing to disperse, painting graffiti on buses, and blocking city streets are punishable by fines and jail time. Physically assaulting a police officer is deadly serious. But none of these actions constitutes a federal offense, and no one claimed Wolf had committed any crime, state or federal. The charges against the demonstrators who assaulted the police officer were filed in state court.
That's why the broken tail-light is important. Like most American cities, San Francisco receives federal grants to spend on law enforcement. Some of that money is spent on equipment, such as police cruisers. The local police initially claimed a protester had tried to burn a police car. But what was burning was a piece of Styrofoam ignited by a firecracker. An arson charge might not stick, so the tail-light became the hook to bring in the feds.
Wolf was surprised when an FBI agent in a Hawaiian shirt, shorts, and sandals showed up at his door three days after the protest. Two city cops and another agent quickly joined the Hawaiian undercover act and demanded all Wolf's video outtakes and names of subjects at the protest. Wolf told them he had witnessed no assault on a police officer. Short segments of the video he'd sold to NBC and two other local TV news outlets had already aired. He had posted longer segments on his website: joshwolf.net/blog/. His camera had been trained on the officer who jumped from his car and tackled and held a suspect on the curb, not the officer whose skull was fractured after he raced off in pursuit of another group of protesters. Wolf told the agents they were violating his First Amendment rights as a journalist.
Two hundred days for a broken tail-light does seem excessive. But, as you will see, Wolf was prosecuted by a true believer working for a tough-on-crime president whose execution record as governor of Texas won't be surpassed without the aid of performance-enhancing drugs (150 men and 2 women in six years, each getting a brisk fifteen-minute, final-day review over coffee with his staff counsel Al Gonzales).
San Francisco's U.S. attorney, Kevin Ryan, who started the prosecution of Wolf, was the anomaly in the Al Gonzales- Karl Rove purge of U.S. attorneys. He was the guy who earned the right to be fired long before his eight undeserving colleagues were dismissed. A Department of Justice memo describes his failures:
• Significant management problems have manifested during his tenure.
• The district has become one of the most fractured offices in the nation.
• Morale has fallen to the point that it is harming prosecutorial efforts.
• The USA [U.S. attorney] has lost the confidence of many of his career prosecutors.
But Ryan was a member of the right-wing Federalist Society and had been praised by his superiors for following administration policies. He was "a loyal Bushie" doing the political hackwork expected of GWB's USAs even as his office unraveled around him.
Six months after FBI agents first showed up at his door, Wolf received a subpoena. Not your garden-variety grand jury subpoena, which would have originated in San Francisco. The San Francisco police were using a broken tail-light to bring to bear on a lefty blogger the high-caliber investigative firepower we're all counting on to prevent, say, another terrorist flying a commercial airliner into a tall building. The subpoena served on Josh Wolf was issued by a Joint Terrorism Task Force in Washington and would have to pertain to a rather serious federal crime and, you would think, terrorism.
Wolf's February 2006 subpoena ordered him to deliver his unedited video and his camera to a federal grand jury in San Francisco and to appear for questioning under oath. When he refused, the assistant U.S. attorney went to a federal magistrate and then to a district judge. Both judges ordered Wolf to hand over his videotapes and answer the grand jury's questions.
Wolf said no.
At a March hearing, he submitted an affidavit explaining his position to the court:
In seeking my testimony and unpublished material, the federal government is turning me into their de facto investigator. My journalistic activities will be blighted, my reporter-subject relationship of trust with alleged anarchist protestors will be eviscerated. Protestors will refuse to speak with me and will deny me access to cover demonstrations. ... The government's subpoena is driving a wedge between my First Amendment activities and protestors exercising their right to lawfully assemble by instilling fear that the government will use my documentation to catalogue and investigate individuals participating in civil dissent.
Wolf ended up in the courtroom of federal judge William Alsup, a Bill Clinton appointee that Martin Garbus, a distinguished First Amendment lawyer and one of Wolf's attorneys, describes as a "long-ball hitter" -- a judge who hands out long sentences. Besides being a long-ball hitter, Judge Alsup is something of a hard-ass. He smacked down Wolf's attorney Mark Vermeulen, ending in midsentence his argument about a reporter's First Amendment rights.
"I was a law clerk on the Supreme Court when this very issue was decided against you on that," said the judge. "The U.S. Supreme Court said there is no journalist newsman's privilege under the First Amendment." When Vermeulen persisted, Alsup threatened to call in the marshals. Then he turned to the defendant -- who wasn't exactly a defendant because he was charged with no crime.
Wolf offered to turn his unedited video over to the judge to view in camera and verify that no incident of arson or assault on a police officer was on the out-takes. Alsup ordered Wolf to turn the videos over to the grand jury and answer the grand jurors' questions.
"Mr. Wolf, if you don't answer the question [asked by the grand jury], you'll be subject to being put in jail until you answer the question. And or fines or lots of other possible penalties."
Assistant U.S. attorney Jeffrey Finigan added a coloratura note: "And that could be, Your Honor, for the life of the grand jury."
Wolf knew the grand jury's term wouldn't end until July 2007, with a possible six-month extension. He had done the math and was looking at as much as eighteen months in federal prison.
"Remember that lady, Miss -- The journalist, Judith Miller?" the judge asked. "She was in jail a long time ..."
When Ben Rosenfeld, another of Wolf's attorneys, tried to explain his client's constitutional protections, the judge cut him off, too. "No. I know the law. And at the contempt meeting you can bring up any other arguments that you want. Meanwhile, your client may be in jail."
At the contempt hearing, Alsup ordered Wolf locked up in the federal facility at Dublin. The Ninth Circuit Court of Appeals upheld the decision, and Wolf would best Judy Miller's 85-day record by 114 days in jail before his first (failed) attempt at mediation, in March 2007.
To U.S. attorney Kevin Ryan and agents on the JTTF, Josh Wolf must have looked like low-hanging fruit. Judy Miller had served eighty-five days on the other coast for refusing to deliver her notes and sources in the Scooter Libby investigation. But she had the institutional support and deep pockets of The New York Times, which paid $2 million for her legal defense. And her jailhouse visitors' log read like the Saturday night reservation book at TenPenh, the elegant Washington, D.C., restaurant. Josh Wolf was out there on a shoeshine and smile. As a blogger and freelancer, he wasn't universally accepted as a journalist. His left-wing Indymedia connections eroded his credibility among some mainstream reporters and editors. To defend himself in federal court, he needed the help of friends, the kindness of strangers, and the generosity of civil rights lawyers. He was the perfect target for an administration that wants reporters out of the way so it can create its own reality.
The balls-to-the-wall pursuit of Josh Wolf illustrates the excess of the Bushies' programmatic assault on the press. Republicans still controlled the House when the House Intelligence Committee held a rare open meeting on March 26, 2006. The larger story was lost in headlines about the lockdown of the Capitol after a false alarm that shots had been fired.
California Democrat Jane Harman warned that the framers of the Constitution ensured that "Congress shall make no law abridging the freedom of the press" for a reason. "If anyone here wants to imprison journalists, I invite them to spend some time in China, Cuba, or North Korea, and see whether they feel safer." Her concern was an administration campaign and a determination in Congress to use the threat of jailhouse jumpsuits to housebreak journalists the administration believed were getting in the way of G. W Bush's War on Terror.
At the March 26 meeting, committee chair Peter Hoekstra was flogging Attorney General Alberto Gonzales's plan to use the Espionage Act of 1917 to prosecute reporters. It was a hollow, reckless threat. The World War I Congress that passed the Espionage Act rejected provisions Woodrow Wilson included in the act that would have criminalized publication of material declared off-limits by the president. Opponents of Wilson's draconian measures called them "un-American" and "an instrument of tyranny" and struck them from the bill. Never the sort of lawyer to be discouraged by legislative intent, Gonzales saw in one section of the Espionage Act language that, if loosely construed, might be used to jail reporters under certain circumstances. (That's the kind of syntax you get into when you write about this guy.)
The attorney general who earned his chops in the Vinson & Elkins Real Property Section in Houston wasn't threatening to turn the Espionage Act on just any journalist. He was hot for Eric Lichtblau and James Risen of The New York Times and Dana Priest of The Washington Post. The Times had revealed that the National Security Agency was secretly (and illegally) listening in on domestic phone calls without warrants. At the Post, Priest had reported on clandestine "black site" CIA prisons in Europe (also illegal). The attorney general President Bush playfully calls Fredo--Vito Corleone's feckless second son in The Godfather -- wasn't going to let the letter of the law protect three treasonous reporters. If he couldn't prosecute under the Espionage Act, he could use it to warn reporters "I know where you live." Distinguished for his obsequious devotion to his boss, Fredo Gonzales was taking the fight to reporters and editors of the big, institutional press.
The Boss was out in front of his AG, even if he wasn't parsing passages in the Espionage Act. "My personal opinion is that it was a shameful act for somebody to disclose this very important program in a time of war," Bush said of the Times. "The fact that we're disclosing this program is helping the enemy. I can say that if somebody from al-Qaeda is calling you, we'd like to know why."
With the AG threatening to lock up reporters under a willfully misinterpreted section of a hundred-year-old statute, the president was implying that the Times's reporters were guilty of treason -- -for revealing his clandestine violation of the law "in a time of war."
In such a spot, the man G. W. Bush playfully calls "Vice" couldn't be far behind. Dick Cheney called the Times story "very damaging" and said the NSA's secret surveillance program had saved thousands of American lives. He was deeply offended because the Times had won a Pulitzer for its reporting on the agency's illegal surveillance. "What is doubly disturbing for me," he declared, "is that not only have they gone forward with these stories, but they have been rewarded for it. For example, in the case of the Terrorist Surveillance Program by being awarded the Pulitzer Prize for outstanding journalist. I think that's a disgrace."
Bush's handpicked CIA director, Porter Goss, jumped on Gonzales's threats of criminal prosecution: "I've called the FBI and the Department of Justice. It is my aim, and it is my hope, that we will witness a grand jury investigation with reporters present, being asked to reveal who is leaking [classified] information," Goss told the Senate Intelligence Committee.
For Republicans who held the First Amendment in low regard (that would be a majority in the Congress), it was open season on reporters.
Kentucky senator Jim Bunning argued that the editors and reporters at the Times should be charged with "treason." (Treason is punishable by death.)
House Homeland Security Committee chair Peter King -- once the Irish Republican Army's go-to guy in New York -- accused the Times of aiding the enemy. "I believe the Attorney General of the United States should begin a criminal investigation and prosecution of The New York Times," King said. "And that it should include the writers who wrote the story, the editors who worked on it, and the publisher." King told Fox News that the criminal investigations Gonzales was planning would put reporters and editors "on the defensive, where they belong." There it was. Behind the bluster, empty threats of prosecution, and accusations of treason was a campaign to intimidate the press.
The New York Times and The Washington Post have institutional footings that allow them to stand up to a president. Smaller papers that would crack under pressure from the White House, or fold before putting up $2 million (or $25,000) to defend a reporter, got the message. The U.S. attorney investigating Scooter Libby had opened the floodgates (or prison gates) by jailing Judith Miller. Now the AG was making jail for journalists national policy. The president, vice president, and Republican majority in Congress joined the fight with the sort of zeal we hadn't seen since George Bush and Bill Frist tried to resurrect Terri Schiavo. Reporters would know there's a price to be paid for revealing state secrets. Publishers and editors would get the message.
Arizona Republican Rick Renzi -- who might yet achieve the distinction of being both the most piss-witted and the most corrupt member of Congress -- was one of the more queerly inarticulate foot soldiers in the war on the press. Prosecuting journalists, Renzi told his colleagues on the committee, would have the "chilling effect of a sword to a glacier." Renzi couldn't quite recall Georgetown professor Jon Turley's warning of "a Sword of Damocles" hanging over reporters' heads. But he knew there was a sword in there somewhere and that it was time to chill. "I believe that the attorney general and that the president should use all the powers of existing law to begin to bring criminal charges," said the congressman.
By the end of the Bush administration's spring campaign against the Times, 60 percent of those surveyed by Fox News said that the newspaper did more to help terrorist groups by publishing the NSA story. Only 27 percent said the story did more to help the public. Forty-three percent said the paper was guilty of treason. It was an odd response, if typical of Fox's skewed polling, considering that the administration had broken the law. Somehow the president and his vice president had convinced the public that reporters were aiding and abetting terrorists.
It was in this climate that Josh Wolf became a First Amendment prisoner of conscience. Unable to intimidate the big boys at the Times and the Post, the Department of Justice turned to Josh Wolf. Reporters have a stark decision to make when told to reveal sources or hand over work product. They can obey a judge's or grand jury's order. Or they can go to jail. That was settled by a five to four vote in a 1972 Supreme Court case styled Branzburg v. Hayes -- one of several "swords to glaciers" hanging over reporters' heads.
Paul Branzburg was a Louisville Courier-Journal reporter who had witnessed a drug crime in the course of writing a story and was ordered to identify the subjects. When he refused to testify and was held in contempt, the Supreme Court upheld the lower court's order. The fifth vote on the divided court was Justice Lewis Powell, who wrote a concurring opinion. Powell agreed with the majority, but he argued that the decision was limited, that "if a newsman has reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement, he will have access to the court and a motion to quash, and an appropriate protective order may be entered."
Powell also warned of a need to strike a balance "between the freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Lawyers have used Powell's opinion to try to protect their journalists' sources and keep their clients out of jail. First Amendment lawyer Floyd Abrams tried to turn Powell's concurrence into a defense of Judith Miller when she was subpoenaed in the Scooter Libby case. The D.C. federal district court and the D.C. court of appeals sent Miller straight to jail -- ending what Georgetown law professor Turley describes as the "intentional ambiguity" that kept prosecutors out of reporters' notebooks despite the 1972 Supreme Court ruling.
Yet despite Branzburg, there are valid reasons why Josh Wolf should never have been locked up.
Martin Garbus has been defending free speech since he represented comedian and social satirist Lenny Bruce in the sixties. He joined the defense team after Wolf had been in jail for more than four months. Garbus says the FBI had no business knocking on Josh Wolf's door, because there was no federal crime.
Garbus echoed Justice Powell's argument about a "newsman," who would worry that "his testimony implicates confidential source relationships without a legitimate need of law enforcement." Garbus said that while Wolf had no explicit confidentiality agreement with the anarchist protesters he was covering, the subjects who confided in him never thought he would reveal their identities to the police. Garbus also referred to Powell's argument about "striking a balance" between reporters' First Amendment rights and the obligation to testify in criminal trials.
"Here there's nothing to balance," Garbus said. "There's no national security issue. It's not like the judge knows this guy is going to go out and blow up the World Trade Center tomorrow. He represents no threat at all. And he has no information about any threat."
If those arguments hang on the thin thread of one concurring Supreme Court opinion, the unassailable legal argument that explains why Josh Wolf never should have been imprisoned pertains to the broken tail-light. California was one of more than thirty states that passed journalist shield laws after the Supreme Court's Branzburg decision left reporters unprotected. California's shield law, one of the strongest in the nation, provided absolute protection for Wolf, his work product, and his sources.
To get around the state law, federal prosecutors needed a federal crime. When their arson charge looked dicey, they pointed to a broken taillight, claiming the anarchists had damaged federal property. "They were groping for some justification," Garbus said. "It was an attempt to avoid the California shield law." They stretched the facts to distort the law. A state offense was federalized to bring in the al-Qaeda squad.
Garbus said the coercive detention of Wolf only makes sense in the context of the Bush administration's abuse of the criminal justice system. "There were a lot of other tapes out there and a lot of other witnesses," Garbus said. "There were better tapes that showed the cop car. But they haven't subpoenaed those tapes. And they know about them." Garbus said he believes local police, working in concert with the FBI, are bringing people in to question and subpoenaing their videos and notes to build a database.
It's a concern that other lawyers and civil libertarians are frequently raising. The Bush Department of Justice uses coercive prosecution as an extension of what should be criminal investigation. It's conduct that might be justified if the judge knew someone was "going to blow up the World Trade Center tomorrow." But too often, the Bush DOJ treats defendants it doesn't like -- such as Josh Wolf -- as potential bombers.
The claim that Joint Terrorism Task Forces are engaged in clandestine surveillance of American citizens is spelled out in an amicus brief the ACLU filed in support of Wolf. ACLU attorneys found FBI agents in Pittsburgh secretly investigating the Thomas Merton Center, described in bureau files as "a left wing organization advocating among other political causes, pacifism." In Denver, the JTTF had Food Not Bombs under surveillance, quietly monitoring the distribution of food to the homeless. On California campuses, the FBI was watching antiwar protesters on the UC Berkeley and Santa Cruz campuses, feeding information about their activities into a Department of Defense antiterrorism database.
On the trail of lefty do-gooders was the same federal agency that ignored its agent Coleen Rowley's desperate entreaties to investigate Zacharias Moussaoui while he was in custody prior to 9/11, and that disregarded antiterrorism agent Kenneth Williams's urgent entreaties to canvass flight schools he suspected were providing instructions to Osama bin Laden's agents (as Williams specifically wrote in a pre-9/11 memo). Antiterrorist specialists from the FBI were staking out pacifist Catholics, charitable groups feeding the homeless, and students taunting military recruiters on California campuses. And journalist Joshua Wolf.
"The very reason [the U.S. attorney] is after him is because it was an anti-Bush demonstration," Garbus said. "An antiwar demonstration. The only reason he's being selected is because of his politics."
We've been down this road before -- during the administration of Richard Nixon, where Dick Cheney got his first government job. Nixon sent the black-bag squad into the office of the psychiatrist of military analyst Daniel Ellsberg to read through files after Ellsberg leaked the "Pentagon Papers."
As President Gerald Ford's chief of staff in 1974, Cheney wanted to break into the home of then New York Times reporter Seymour Hersh. Cheney suggested getting a search warrant "to go after Hersh's papers in his apt." "Will we get hit with violating the 1st amendment to the constitution?" he asked in a handwritten note. The future vice president wasn't concerned that the administration would be violating the First Amendment, only that it might get caught doing so.
With Cheney in charge at the White House and Fredo Gonzales running the Justice Department, fears that Wolf's incarceration was part of a coordinated surveillance campaign seem well founded.
The doors of Judge Joseph Spero's courtroom on the fifteenth floor of the Phillip Burton Federal Building were locked for most of the day on May 8, 2006. The hearing was closed to the press, who could only watch through the narrow vertical windows on the courtroom door. It commenced at 10:00 A.M. under light security. "It's just that kid who's locked up because of his videotape," said "Rover 12," one of the building's security guards, on his way out for lunch. At the counsel table sat Josh Wolf, Marty Garbus, and two attorneys from the First Amendment Project. At the head of the table sat Magistrate Judge Spero, for Wolf a welcome change from district judge William Alsup.
With expressive eyes and a thick mustache that accentuated a generous smile, Spero seemed to be joking with Wolf. Spero's brown sport coat and red bow tie (rather than black robes) improved the atmospherics Judge Alsup had created six months earlier, when he ordered Wolf locked up until he talked. Garbus had filed a Grumbles motion, one of those legal mechanisms that, like Miranda rights, memorialize a plaintiff or defendant by affixing his name to a legal procedure. A Grumbles makes the argument that detention to compel testimony has become punitive when it is evident that testimony cannot be compelled. Alsup had rejected the argument without a hearing.
Then the judge must have realized he had boxed himself in. Wolf wasn't going submit to questioning by the grand jury and surrender his videotapes; in fact he seemed prepared to hunker down in his cell until the grand jury's term expired. So Alsup did something that Garbus had never before seen. He asked a magistrate judge to mediate the dispute and perhaps find a middle ground between Wolf and the assistant U.S. attorney working the "terrorism" case. At the mediation hearing, Wolf, with a shock of black hair, Bye Bye Birdie sideburns, and a sweet, sensual face, sat at the judge's left hand. His attorney sat directly in front of him. For six hours they negotiated.
In the hallway, Garbus described his client as a "lovely young man," adding, "I think he's intelligent. I've dealt with people of the right, left, and center, who in jail have become paranoid, irrational, et cetera. None of that has happened to him. He's the same kid who went in six months ago."
Assistant U.S. attorney Jeffrey Finigan was less generous. He filed an affidavit that described Wolf as a "delusional," self-styled "journalistic martyr."
At four o'clock Wolf walked out the secure back door of the courtroom. He would be back in his cell in Dublin in time for dinner. Garbus was flying back to New York to draft another Grumbles motion, to which he would attach a psychologist's report describing Wolf's emotional stability and resolve. On the following morning, Wolf began his two hundredth day in federal custody.
On Day 224, Wolf was back in Judge Spero's courtroom. He had reached an agreement. He would deliver his unedited videotape, which he immediately posted on his website. And he would answer only two questions before the judge:
• Did he know the identity of the individual Officer Peter Shields chased?
• Did he witness any attempt at arson?
He answered no to both questions and was out of jail. Free after six months, Josh Wolf walked a half block south from the federal building and did something that should remind us all that the kids are alright. Standing on the steps of the San Francisco City Hall, the twenty-four-year-old blogger got it pitch perfect as he quoted from William O. Douglas's prescient dissent in the Branzburg case:
As the years pass, the power of the government becomes more and more pervasive. It is a power to suffocate both people and causes. Those in power, whatever their politics, want only to perpetuate it. Now that the fences of the law and the tradition that protected the press are broken down, the people are the victims. The First Amendment, as I read it, was designed precisely to prevent that tragedy....
The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring fulfillment to the public's right to know.