Media Subpoenas in U.S. Terror Case Raise Concerns Fri Jun 4, 2004 By Caroline Drees, Security Correspondent WASHINGTON (Reuters) - The U.S. government has subpoenaed four journalists from major media to testify in the trial of a lawyer facing terrorism charges in a case which has raised fears for the freedom of the press. The subpoenas are in the trial of Lynne Stewart, who is charged with helping her client Sheikh Omar Abdel-Rahman, convicted of encouraging bombings in the United States, communicate from prison with what prosecutors say are his terrorist followers. The New York Times, Reuters and Newsday are seeking to quash the unusual subpoenas of their reporters. Their success or failure may set legal precedents in a case pitting the media's concerns about protecting sources and impartiality against government efforts to win the battle against terror. "We seem to be moving to a potential conflict between First Amendment interests and those of national security," said prominent press freedom attorney Floyd Abrams. "This is an area fraught with danger for journalists and their ability to protect confidential information and sources, as well as non-confidential material," he said. The four journalists involved are Joseph Fried of The New York Times, New York Times freelancer George Packer, Esmat Salaheddin of Reuters and Newsday reporter Patricia Hurtado. Government prosecutors want them to confirm in court that comments they attributed to Stewart in articles were in fact made by her. Legal experts say that without the reporters' confirmation under oath, the articles are considered hearsay and are not admissible in court. If confirmed, the information can be used as evidence. While all three media stand by the stories, they oppose the subpoenas on principle and because testifying could open the door to far broader cross-examination by the defense. The government says the subpoenas call for extremely limited but important testimony from the journalists and would not compromise the so-called "reporters' privilege." Reporters say that without their privilege to refuse to disclose even non-confidential information, based on the First Amendment of the U.S. Constitution, they cannot do their job. "Our sources will dry up if sources ... think that anything they tell us will be repeated against them in court. Why would you speak to a reporter if those words are going to be read back against you in court?" said George Freeman, in-house counsel for The New York Times. "We are supposed to be the watchdog of our government, not its lap dog, so we shouldn't be in bed with it testifying," Freeman said. SETTING A PRECEDENT Kevin Goldberg, a lawyer for the American Society of Newspaper Editors, said the subpoenas could set a dangerous precedent. "There are provisions in the USA Patriot Act (post-Sept. 11, 2001 anti-terrorism legislation) that conceivably make it very easy for the government to trample on First Amendment rights," he said. "The really dangerous precedent I'm seeing from this case is the increasing reliance on journalists to be an investigatory arm of the government." Michael Gerhard, a First Amendment expert at the William & Mary School of Law, said: "There is a tension here that we haven't seen much before between the journalists' efforts to do their job and the government's explicit acknowledgments that it has paramount concerns." Presiding Judge John Koeltl has not yet ruled on the New York Times' and Reuters' motions to quash the subpoenas. Newsday's in-house counsel Stephanie Abrutyn says the paper plans to file its motion within two weeks. The trial is due to start June 21.