By Elaine Hargrove-Simon, Silha Fellow and Bulletin editor
On July 12, 2002, Federal District Judge T.S. Ellis III refused to quash a subpoena issued to Robert Young Pelton, the CNN reporter who interviewed American Taliban fighter John Walker Lindh. (See U.S. v. Lindh, 2002 U.S. Dist. LEXIS 13233 (D. Va., July 12, 2002)) Four days later, the issue became moot when Lindh pled guilty to two felony charges.
Lindh's attorneys subpoenaed Pelton to testify at a hearing seeking to suppress videotape and testimony he gathered when interviewing Lindh following his capture in November 2001. They contend that Green Berets who were friends of Pelton helped the reporter gain access to Lindh, and that Pelton continued filming Lindh despite Lindh's requests that he stop. Additionally, Lindh's attorneys claim that their client was malnourished, wounded and in a weakened physical condition and therefore unable to make a clear decision about granting the interview. They assert that Pelton, who interviewed Lindh together with a U.S. Special Forces medic, acted as an agent of the government and that Lindh's Miranda rights were not read to him prior to his speaking with Pelton.
On July 5, Pelton moved to quash the subpoena on the ground that, as a journalist, he has a First Amendment right not to disclose information obtained while gathering news, and that he was not acting as a government agent.
Ellis applied a two-part analysis in his ruling: whether the subpoena satisfies the requirements of Rule 17, Federal Rule of Criminal Procedure, and whether the First Amendment journalist's privilege applies in this case. Ellis concluded that the subpoena was "properly issued" to Pelton and that Pelton's testimony would be "both material and favorable to the defense."
Ellis interpreted Branzburg v. Hayes (408 U.S. 665 (1972)) narrowly, finding that the U.S. Supreme Court "considered and expressly rejected the creation of a First Amendment journalist privilege in criminal cases. . . .[A] First Amendment journalist privilege is properly asserted in this circuit where the journalist produces some evidence of confidentiality or government harassment. Only where such evidence exists may district courts then proceed to strike a balance in the circumstances between the competing interests involved, namely 'freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.'"
Pelton admitted that there is no basis to claim confidentiality in this case, nor that he was the subject of government harassment. However, he argued that, if forced to testify at Lindh's trial, particularly under the suspicion of having been a government informant, it could endanger all correspondents. Ellis rejected this argument as a "novel claim," saying that there has never been a case where a journalist claimed First Amendment protection when acting as a war correspondent. The potential danger to Pelton is outweighed by Lindh's Sixth Amendment right to "prepare and present a full defence to the charges against him."
Although Ellis upheld that the subpoena, he granted Pelton leave to renew the motion to quash in the event that he was called as a witness to the suppression hearing.
Lindh agreed to plead guilty to the charges that he had provided services as a soldier to the Taliban, a felony. He also pled guilty to a separate charge of carrying explosives while in service to the Taliban. The government will drop the remaining counts against Lindh, including charges that he conspired to kill Americans and participated in acts of terrorism. Both sides agreed to a 20-year prison term and a fine of $500,000. Sentencing will be on October 4.
A documentary on the war, "House of War: Uprising at Mazar-e-Sharif" was scheduled to air on CNN August 6. The program reportedly would include interviews with Pelton describing his meeting with Lindh as a captured prisoner, according to the Washington Times.