As Legal Affairs Reporter for the Chicago Sun-Times, I enjoy covering the courts, not being hauled into them as a defendant in an international case about press freedoms.
As I wrestled with the decision of whether to write a book about American David Rupert’s adventure infiltrating the Real IRA to convict its leader Michael McKevitt, my concerns were cultural.
Despite the funny name, I’m Irish, as regular readers of this magazine may have gathered from my stories over the years. I studied in Ireland. I grew up listening to my grandmother tell of British soldiers dragging her and her 15 siblings out into the street in Kerry to watch her uncle killed for speaking Irish. My story last year quoting David Trimble saying Ireland would have no reason to exist were it not for “Catholicism and anti-Britishness” made waves on both sides of the Atlantic.
I know well how the British over the years used informers to thwart Irish rebels. I was reluctant to sign a “collaboration” agreement — I really didn’t like that word — with a mole to write his story. On the other hand I feared another writer might do the book Patriot Games style: Irish nationalists as unprincipled bloodthirsty savages.
I agreed to write the book on the condition that Rupert let me and co-author Bob Herguth tell the whole story “warts and all” including the perspectives of McKevitt and his allies whom Herguth and I had quoted in the Sun-Times.
Rupert agreed. His agent, however, wanted us to be “ghost writers” instead of journalists. We said we were not interested and were pulling out of the deal when Rupert took our side and fired the agent.
We were set to go ahead as planned when the FBI called and asked me to turn over tapes and notes of my interviews with Rupert. McKevitt’s lawyers had asked U.S. Judge Ronald Guzman to order us to turn over the notes and tapes. The FBI said it wanted to screen the tapes first to prevent the release of classified information. (The FBI had collaborated with British MI5 in recruiting Rupert to act as a mole.)
I said “No” to the FBI. In America, reporters didn’t hand over notes or tapes.
Two of Chicago’s top media lawyers, Kathy Roach and Damon Dunn, represented us pro bono.
In Dublin, McKevitt’s able lawyer Hugh Hartnett asked Rupert while he was on the stand whether he objected to us releasing the tapes. Rupert answered, “absolutely not.”
A U.S. criminal court judge likely would sustain an objection to that question because it’s hard to give an honest “yes” when the follow-up question likely would be: “Well, what do you have to hide, Mr. Rupert?”
On July 2, Judge Guzman ruled we were to hand over our tapes the next morning because if Rupert did not object to their release we should not either. Our attorneys had argued in vain that it is the reporter’s privilege to waive, not the subject’s.
We were defending an idea: that a person should be able to speak openly and candidly to a writer without worrying that the tape will be turned over to the FBI or opposing attorneys to be played at a trial.
These are rough times to defend ideas in the courts.
Though neither side raised the issue of 9/11, Judge Guzman brought it up in his ruling: “As recent events have made clear we have a substantial interest in investigating and prosecuting terrorism both here and abroad.”
The federal appellate court refused to stay Guzman’s order, so Herguth and I and our colleague Flynn McRoberts of the Chicago Tribune who had earlier worked with us on the book, prepared to go to jail.
Then Roach and Dunn told us that they thought we should hand over the tapes.
The appellate court would likely rule against us, creating a precedent that would be used against other journalists. (They had taken just 90 minutes to rule that it would not even grant a stay.) Cut off the process now and it’s a non-precedential one-time bad decision, they said.
So on the 4th of July, Herguth and I painfully handed over 11 microcasettes to the FBI. They were screened and flown to Dublin.
McKevitt’s lawyers found embarrassing stories of Rupert’s youthful misadventures on the tapes, but nothing to contradict his testimony. McKevitt was convicted in August of “directing terrorism” and sentenced to 20 years in prison. He plans an appeal.
Ironically, a month after we turned over the tapes so the appellate court would not issue a ruling, an appellate judge issued a surprise catastrophic-to-journalism ruling anyway saying all the other federal circuits in the country are wrong to recognize a reporter’s privilege against handing over notes or tapes.
As I said, these are rough times to defend ideas in the courts.
So now, the New York Times, the Washington Post, Newsweek, CNN, NBC, CBS and all the other major national media have filed a friend-of-the-court brief on our behalf, asking the full appellate court to reverse the ruling.
So THIS is what the courts look like from the other side. ♦