In Defense of a Free Press

Journalist Sarah Olson talks about her defiance in the face of a subpoena by the Army, the rights of U.S. journalists and what the wider context is of the Army’s court martial of First Lt. Ehren Watada

Lisa Sousa

Independent journalist Sarah Olson speaks at the National Press Club in Washington, D.C., in early February.

Sarah Olson, a jour­nal­ist based in the San Fran­cis­co Bay area, has became a hero for Amer­i­cans con­cerned about the ero­sion of press free­doms in the Bush era. On May 30, 2006, Olson inter­viewed Army First Lieu­tenant Ehren Wata­da, the first com­mis­sioned offi­cer to pub­licly refuse deploy­ment to Iraq, for the Web site truthout​.org and Paci­fi­ca Radio. For that refusal, on Feb. 5, the Army hauled him before a mil­i­tary court in Fort Lewis, Wash­ing­ton, for a court-mar­tial. The Army charged him with one count of miss­ing move­ment,” for refus­ing to deploy to Iraq, and four counts of con­duct unbe­com­ing an offi­cer and a gen­tle­man – two of which stem from state­ments he made to indi­vid­ual jour­nal­ists regard­ing his oppo­si­tion to the Iraq war.

To help make their case, in Decem­ber, the U.S. mil­i­tary sub­poe­naed Olson to tes­ti­fy in Watada’s mil­i­tary tri­al, where if con­vict­ed he could face a year in jail for each of the two charges relat­ed to speak­ing with Olson and, on a sep­a­rate occa­sion, Greg Kake­sako of the Hon­olu­lu Star-Bul­letin.

The sub­poe­na required Olson to appear in court on behalf of the pros­e­cu­tion to ver­i­fy Watada’s state­ments, even though audio files were avail­able on the Inter­net. If she refused to com­ply, she risked a felony charge and six months in jail. 

So, Olson start­ed a cam­paign to chal­lenge the sub­poe­na. On Jan. 29, bow­ing to pub­lic pres­sure, the Army dropped the sub­poe­na against Olson just pri­or to the start of the tri­al. The defense and the pros­e­cu­tion had reached a deal: Wata­da would ver­i­fy the state­ments attrib­uted to him and in response the pros­e­cu­tion would drop the two charges result­ing from state­ments he made to jour­nal­ists. Watada’s court-mar­tial result­ed in a mis­tri­al on Feb. 7, when the mil­i­tary judge nul­li­fied the Stip­u­la­tion of Facts accept­ed by the pros­e­cu­tion and the defense. A new tri­al will begin on March 19

For uphold­ing the First Amend­ment right to free­dom of the press, Olson will receive the James Madi­son Award from the Soci­ety of Pro­fes­sion­al Jour­nal­ists on March 13. The award is named after Madi­son, the fourth Pres­i­dent of the Unit­ed States and the cre­ative force behind the First Amendment. 

In These Times recent­ly spoke with Olson about her case, its sig­nif­i­cance and the chal­lenges cur­rent­ly fac­ing defend­ers of the First Amendment. 

A num­ber of jour­nal­ists have recent­ly been sub­poe­naed to reveal their con­fi­den­tial sources and/​or hand over unpub­lished mate­r­i­al. How was your sit­u­a­tion different?

It was a mil­i­tary court that sub­poe­naed me, rather than a civil­ian court. The mil­i­tary is the only place that I know of where peo­ple in the Unit­ed States can be charged with mak­ing per­son­al polit­i­cal state­ments. For me, that’s the biggest difference.

Why didn’t you just ver­i­fy what Lt. Wata­da said and get it over with?

It’s a journalist’s job to report the news, not to par­tic­i­pate in the government’s pros­e­cu­tion of per­son­al polit­i­cal speech. These kinds of sub­poe­nas erode the bar­ri­er between press and gov­ern­ment. When speech itself is a crime, jour­nal­ists are turned into an inves­tiga­tive tool of the gov­ern­ment. It also scares jour­nal­ists away from cov­er­ing sto­ries that may not be pop­u­lar with the cur­rent administration. 

How would you com­pare your sit­u­a­tion to that of for­mer New York Times cor­re­spon­dent Judith Miller?

Judy Miller’s case is about reveal­ing con­fi­den­tial sources and who leaked clas­si­fied infor­ma­tion about some­thing. Every­thing Lt. Wata­da said is on the record. So it’s not the typ­i­cal frame­work peo­ple think of when they think of jour­nal­ists being sub­poe­naed. This case is about pre­serv­ing the right of ordi­nary Amer­i­cans, par­tic­u­lar­ly men and women in the armed ser­vices, to speak to the press with­out fear of ret­ri­bu­tion or cen­sure. A num­ber of peo­ple have sug­gest­ed that the Army may be using his court-mar­tial to send a mes­sage to the rest of the mil­i­tary that pub­lic oppo­si­tion to the war isn’t going to be tolerated. 

A lot of peo­ple are real­ly down on Judy Miller. I can under­stand that because she may have done more than any oth­er sin­gle per­son in the Unit­ed States to help cre­ate the war in Iraq. Her con­sis­tent­ly bad report­ing and unwill­ing­ness to ver­i­fy the accu­ra­cy of the things she was say­ing is one of the rea­sons that we’re in the war today. America’s thresh­old for bring­ing jour­nal­ists into court has been sig­nif­i­cant­ly low­ered in part because of Judy Miller.

Josh Wolf, anoth­er Bay Area-based media work­er, is in jail for refus­ing to hand over his unpub­lished mate­r­i­al. Do you think your vic­to­ry is rel­e­vant to his case?

I cer­tain­ly hope to raise aware­ness about his case. Josh was work­ing as an inde­pen­dent video­g­ra­ph­er – he sold his footage of a San Fran­cis­co protest against the G8 Sum­mit in 2005 to the local news – and the local/​federal law enforce­ment agen­cies want­ed his unpub­lished out­takes. That’s total­ly pro­tect­ed under the Cal­i­for­nia state shield law. [The shield law pro­tects a jour­nal­ist from being held in con­tempt of court for refus­ing to dis­close unpub­lished infor­ma­tion that was gath­ered for news pur­pos­es, whether the source is con­fi­den­tial or not.] The pros­e­cu­tor got around that by con­ven­ing a fed­er­al grand jury, say­ing that a cop car alleged­ly set on fire dur­ing the protest was pur­chased in part by fed­er­al dollars. 

On Feb. 6, he broke the record for the longest num­ber of days that a jour­nal­ist in the Unit­ed States has been incar­cer­at­ed for not hand­ing over his unpub­lished mate­r­i­al to a fed­er­al grand jury. It’s pos­si­ble that Josh will con­tin­ue to sit in prison after hav­ing bro­ken no law what­so­ev­er, which is an infu­ri­at­ing and gross injustice.

Did you ever waver in your deci­sion to chal­lenge the subpoena?

No. I was con­tact­ed by the Army in July and I was sub­poe­naed in Decem­ber. I had a lot of time to think about the sit­u­a­tion and work myself into a First Amend­ment fren­zy. By the time I was sub­poe­naed I was very clear about what the issues were. 

Can you fore­see any cir­cum­stance in which you would tes­ti­fy on behalf of a gov­ern­ment prosecution?

I think a per­son could make a rea­son­able case that there are cer­tain sit­u­a­tions when jour­nal­ists should be com­pelled to reveal cer­tain pieces of information. 

For exam­ple, in a hypo­thet­i­cal sit­u­a­tion, what if in the course of your inter­view some­one told you they had a nuclear bomb that was going to go off in 48 hours and they told you where it was, would you reveal that infor­ma­tion? This is just sim­ply not one of those sit­u­a­tions. Obvi­ous­ly I would take each sit­u­a­tion at its face value. 

Did you learn any­thing about the rights of jour­nal­ists or the First Amend­ment that you didn’t know?

Absolute­ly. The first thing is that jour­nal­ists don’t real­ly have any rights. That was real­ly shock­ing to me. I wasn’t aware that the courts didn’t uphold a journalist’s abil­i­ty to object to a sub­poe­na and I wasn’t aware that you could be com­pelled to par­tic­i­pate in the pros­e­cu­tion of some­one who is speak­ing to you.

You say that media work­ers – and not just mem­bers of the press – should be cov­ered under shield laws. Why do you make that distinction?

It’s impor­tant to pro­tect the whole scope of peo­ple who are engag­ing in acts of news­gath­er­ing. That includes blog­gers, Indy­media jour­nal­ists and peo­ple who are work­ing on a con­tract basis, for exam­ple, peo­ple who are work­ing as assis­tants, trans­la­tors and fix­ers in Iraq. A whole host of peo­ple work in news­gath­er­ing who are not tra­di­tion­al­ly defined as jour­nal­ists, and who don’t nec­es­sar­i­ly work for the Hearst Cor­po­ra­tion or a huge paper. 

Do you have any crit­i­cisms about how the media cov­ered your role in the Wata­da cases?

The media did a fine job for the most part. One of the things I’ve learned through this process is how chal­leng­ing it is for jour­nal­ists to fol­low sto­ries that address not just the who, what, where and when, but also the why. My sit­u­a­tion might be very dis­turb­ing to me, my fam­i­ly and my friends, but the rea­son I began speak­ing pub­licly is not because I see this as a sit­u­a­tion about me as a per­son. It’s not even a sto­ry just about Lt. Wata­da. It’s not about the indi­vid­ual play­ers. I think we need to think more about why we don’t have a place in the dai­ly news for sto­ries that tack­le the ques­tion of why.

What are the ram­i­fi­ca­tions of the Army going after Lt. Wata­da for speak­ing out?

The Army’s own num­bers show that more than 50 per­cent of the mil­i­tary is unhap­py with the war and there are a num­ber of high-pro­file objec­tion cas­es or AWOL cas­es. This is the con­text in which Lt. Watada’s court-mar­tial is hap­pen­ing – it’s a very polit­i­cal con­text. I do believe that the Army would like to send a mes­sage in some way. 

I think that Lt. Watada’s court-mar­tial will set legal prece­dent for decades into the future about what’s allow­able speech, and it will set a polit­i­cal tone today for what is tol­er­at­ed in terms of dissent.

We don’t know what is going to hap­pen to Lt. Wata­da. What do you hope peo­ple take away from his court-mar­tial and your role in his case?

I hope there is greater sup­port in the Unit­ed States for jour­nal­ists to be able to gath­er and dis­sem­i­nate news with­out the gov­ern­ment inter­fer­ing in that process. That fun­da­men­tal notion of press free­dom is not as irrel­e­vant to indi­vid­u­als and insti­tu­tions as we some­times think. When jour­nal­ists are able to fight back against these sub­poe­nas, it’s pos­si­ble for them to be dropped. 

With regards to Lt. Watada’s sit­u­a­tion, I want to under­score that there is a grow­ing amount of dis­sent with­in the mil­i­tary. A major­i­ty of the troops in Iraq would like to come home, and active duty mem­bers of the mil­i­tary are increas­ing­ly find­ing ways to express their dis­con­tent and oppo­si­tion to the war. It is very impor­tant that we have a media that can cov­er that perspective.

Lisa Sousa is a media activist with StreetLev­el TV in San Francisco.
More articles by Lisa Sousa
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