20. 08. 2002

In the appeals chamber

IN THE INTERNATIONAL CRIMINAL Case: IT-99-36-T TRIBUNAL FOR THE FORMER Date: August 17, 2002 YUGOSLAVIA Original: English IN THE APPEALS CHAMBER PROSECUTOR v. RADOSLAV BRDJANIN and MOMIR TALIC BRIEF AMICI CURIAE ON BEHALF OF VARIOUS MEDIA ENTITIES AND IN SUPPORT OF JONATHAN RANDAL'S APPEAL OF TRIAL CHAMBER'S "DECISION ON MOTION TO SET ASIDE CONFIDENTIAL SUBPOENA TO GIVE EVIDENCE" Office of the Prosecutor: Ms. Joanna Korner QC Mr. Andrew Cayley Counsel for the accused: Radislav Brdjanin: Mr. John Ackerman Mr. Milan Trbojevic Momir Talic: Mr. Slobodan Zecevic Ms. Natacha Fauveau-Ivanovic Counsel for Jonathan Randal: Mr. Geoffrey Robertson QC Mr. Steven Powles Instructed by Messrs Finers Stephens Innocent Counsel for Amici: Mr. Floyd Abrams Mr. Joel Kurtzberg Ms. Karen Kaiser Cahill Gordon & Reindel Introduction 1. This brief, amici curiae, is submitted pursuant to Rule 74 of the Rules of Procedure and Evidence ("Rules") on behalf of what may well be the largest and most diverse group of journalists and journalistic organizations throughout the world ever to join a single brief. Their identities are set forth separately at paragraph 22 of this brief. 2. Rule 74 provides that a "Chamber may, if it considers it desirable for the proper determination of the case, invite or grant leave to a State, organization or person to appear before it and make submissions on any issue specified by the Chamber." Rule 107 makes Rule 74, and other rules of procedure and evidence governing proceedings in the Trial Chamber, applicable to proceedings before this Court on appeal. 3. On July 17, 2002, counsel for amici moved this Tribunal for leave to file a brief amici curiae in support of Jonathan Randal's appeal of the Trial Chamber's June 7, 2002 "Decision on Motion to Set Aside Confidential Subpoena to Give Evidence" (the "Decision"). On August 1, 2002, the Appeals Chamber granted the motion with respect to this issue, and ordered that the submission be filed no later than August 17, 2002. 4. This is a matter of first impression for this Court and, indeed, any other international war crimes tribunal. Never before has such a court been required to consider when journalists may be compelled to testify about their news gathering activities. 5. The Trial Chamber's Decision attempted to side step this question, and, in doing so, articulated a test that is, by its nature, so vague that it will inevitably lead to much unease and confusion in the journalistic community. At the same time, it provides little guidance to the legal community. The Trial Chamber, in denying Mr. Randal's motion to set aside the subpoena and refusing to recognize any qualified journalistic privilege, called for a "delicate balancing exercise" of the right to freedom of expression, on the one hand, with the rights of the accused and the prosecution, on the other. With due respect to the Trial Chamber, however, and without denying for a moment the need for delicacy in the balancing process, the Trial Chamber provided no legal test at all. 6. The Trial Chamber emphasized that the Court "has a duty to limit itself to what is strictly necessary for the purpose of deciding the issue of which it is seised and not to indulge in academic exercises or attempt to decide issues that may well be very interesting and related to the so-called journalistic privilege in the multi-facets in which it is presented, but go beyond, and have no bearing on what is really involved in, and truly relevant to, the subject-matter of the Motion." 7. Amici's position is that the Trial Chamber's Decision denying Mr. Randal's motion to set aside the subpoena should be reversed and that a rule providing clear and predictible standards for the application of a qualified journalistic privilege is needed in light of the practical realities of journalists' jobs covering war-time situations. Amici respectfully submit that this is not an academic question but an intensely real one of the utmost importance to journalists, who put their lives on the line covering war atrocities; the public, which benefits from the free flow of information provided by those journalists; and the Tribunal itself, which has benefited enormously from the work of journalists. Amici respectfully urge the Court to establish a qualified privilege for journalists whose testimony is sought in circumstances such as this so that such journalists such as Mr. Randal will enjoy a presumption against being compelled to testify about their news gathering activities before international war crimes tribunals unless their testimony is absolutely essential to the determination of the case and the information cannot be obtained from any other means. Amici further submit that this standard cannot possibly be met in Mr. Randal's case. Background of the Subpoena and the Motion to Set Aside the Subpoena 8. Mr. Jonathan Randal, a former reporter and war correspondent for The Washington Post, is the subject of a subpoena issued by the International Criminal Tribunal for the former Yugoslavia ("ICTY") on January 29, 2002. The Office of the Prosecutor ("OTP") sought to secure his testimony in relation to an interview he and a colleague conducted with defendant Radoslav Brdjanin in Banja Luka in 1993. Excerpts from the interview were subsequently published by The Washington Post on February 11, 1993 in an article entitled "Preserving the Fruits of Ethnic Cleansing: Bosnian Serbs, Expulsion Victims See Campaign as Beyond Reversal." 9. During the course of defendant's trial, the OTP attempted to introduce the article as evidence, but defendant's counsel insisted that he would only accept the article as evidence if he could cross-examine Mr. Randal about the article and its context. Knowing the dangers implicit in journalists testifying against their sources, Mr. Randal declined to testify. 10. The discussion on the record in the Trial Chamber makes clear that the Court did not conclude that there had been any showing that Mr. Randal's testimony would in fact be essential to the prosecution's case. Rather, the Trial Chamber noted that Mr. Randal's testimony "may be" useful. Judge Agius explicitly acknowledged as much on the record: MR. ACKERMAN: Well, I'm not sure it's helpful for you to say that it's important that he come testify because if you said the opposite - JUDGE AGIUS: No, I said it would be useful, his testimony may be useful. MR. ACKERMAN: Probably would be. JUDGE AGIUS: No. It's whether it is essential or not is another matter . . . . 11. The threshold test applied with regard to requiring the testimony of journalists applied by the Trial Chamber thus appears to have been no different than that applied to any other witness. At another point in the transcript, for example, the Trial Chamber noted that Mr. Randal's testimony should be compelled, not because it was necessary, but because, "[i]t seems to me that we have a witness who at least to an extent can give us some information." 12. Rather than treating Mr. Randal's testimony about his news gathering activities as evidence to be obtained only as a last resort, the Trial Chamber suggested taking his testimony first, and determining its significance later. As the March 1, 2002 hearing of this matter makes clear, the Trial Chamber's approach to journalistic subpoenas in this case encourages courts to resolve doubts about the relevance of the testimony by having the journalist provide testimony. Only after the testimony is already given will the Court then decide if it is truly relevant: JUDGE AGIUS: . . . what is important for this Chamber is not whether the document itself ought to be admitted into evidence or not. Rather, it is the probative value that it can receive that is important. We may end up in a situation whereby we would have heard Witness 1 [i.e., Mr. Randal] but come to the conclusion that for all intents and purposes, his evidence is not going to be of any importance to us. But I would still think that we ought to go ahead with Witness 1 . . . . * * * * ** MS. KORNER: Your Honour, the argument from Mr. Ackerman was because it was outside the indictment period it was [irrelevant] - JUDGE AGIUS: No, that is, as I'm trying to explain, if in the course of the evidence it transpires that what was stated to Witness 2 and Witness 1 outside the period of the indictment refers exclusively to events outside the period of the indictment, and do not shed a light, throw a light on the events preceding the dates of the interview, or related to the events falling within the time frame of the indictment, then obviously I'm going to stop the witness and say, 'We don't need you any more.' But as it is, even on the face of it, I think - I think that the evidence could throw a light on the possible frame of mind that the accused may have had in 1992, April to December. If that is not the case, obviously I'm going to throw this witness out. 13. Following several short hearings on the matter in the Trial Chamber, Judge Agius ordered Mr. Randal's testimony. 14. Mr. Randal sought to set aside the subpoena and filed "Written Submissions on Behalf of Jonathan Randal to Set Aside Confidential Subpoena to Give Evidence" on May 8, 2002 urging, inter alia, that the Tribunal establish a qualified privilege for journalists as a matter of law. On May 9, 2002, the OTP filed its "Prosecution's Response to Written Submissions on Behalf of Jonathan Randal to Set Aside Confidential Subpoena to Give Evidence," arguing against the articulation of a qualified privilege and the application of such in Mr. Randal's case. Following oral submissions, the Trial Chamber denied Mr. Randal's motion. 15. Consistent with Judge Agius' statements at the hearing that Mr. Randal's testimony "may be useful" but that "whether it is essential or not is another story," the Trial Chamber's Decision did not conclude that the evidence sought from Mr. Randal was essential to either the prosecution or the defense. Rather, the Court concluded merely that, "[t]here can be no doubt that if proven to be true, the alleged declarations of Brdjanin are pertinent to the case of the Prosecution." 16. Nor did the Trial Chamber examine whether or not the substance of Mr. Randal's testimony could be obtained through other sources. 17. Pursuant to a Certification to Appeal granted on June 19, 2002, the appeal of this Decision is presently pending before the Appeals Chamber. Amici submit this brief in support of Mr. Randal's appeal. Statement of Interest of Amici 18. Amici and their members are involved in the gathering and reporting of news throughout the world. The media entities and organizations from around the world that submit this brief include newspaper and magazine publishers, broadcasters, and associations that defend the interests of journalists. All these organizations and the journalists for whom they speak are dedicated to the core principles of freedom of expression and the centrality of news gathering. Amici are vitally interested in and deeply concerned about any ruling that could result in compelling journalists - particularly war correspondents - to become witnesses against their sources, thus imperiling their access to information, their objectivity and even their safety. 19. Amici respectfully submit that compelling reporters to testify as witnesses in war-crimes cases without a threshold showing that their testimony is essential to the conduct of the proceeding and unobtainable elsewhere will threaten the free-flow of information and compromise journalists' ability to report the news. Amici further maintain that compelling journalists' testimony will unquestionably curtail the important benefits that journalists provide to the public and to courts such as this one. This is so not only in cases that seek the disclosure of confidential sources, but in all situations in which journalists are forced against their will to testify about their news gathering activities. 20. Amici thus urge this Court to establish a set of clear, bright-line rules to guide tribunals through the critical balancing of journalists' rights with the needs of a particular case. The type of vague "balancing test" applied by the Trial Chamber here fails to provide journalists and their sources with any reasonable assurance of the outcome of any given situation. The result will undoubtedly be a shared sense that journalists may, at any time, be compelled to serve as witnesses against those they interview - a result that will surely make news sources less likely to come forward, less likely to speak freely, and more likely to fear that journalists are acting as possible agents of their future prosecutors. Because of the need to establish rules with uniformity of application, this Tribunal should seize the opportunity to create a procedure, as it has done for humanitarian organizations such as the International Committee of the Red Cross ("ICRC"), with regards to safeguarding journalists' rights. 21. Amici further submit that in rendering its Decision, the Trial Chamber failed to consider the practical impact of its ruling on the lives and work of war correspondents. Characterizing any attempt to define the standard whereby journalists can be compelled to testify as a mere "academic exercise," the Tribunal declined to set forth any test at all. Such an approach, however, amici respectfully suggest, is itself overly academic, in that it ignores not only the practical burdens placed on journalists who are required to testify, but the dangers faced by journalists on a day-to-day basis in combat zones. It ignores the fact that journalists that report from war zones literally risk their lives - and too often lose them - in the course of seeking to inform the public of the nature of wars. Their safety, as well as the continual flow of vital information to the public, are precisely what is at issue here. The amici are thus deeply appreciative to the Court for considering the views of journalists in the field before deciding this case. 22. Amici are as follows: (1) The New York Times Company, a leading media company, publishes The New York Times, a daily newspaper with a circulation in the United States of 1.1 million daily, and more than 1.7 million on Sunday. The company also owns The Boston Globe, as well as 16 other newspapers throughout the United States and eight network-affiliated television stations. (2) The Dow Jones Company, founded in 1882, publishes vital business and financial news and information around the world, including The Wall Street Journal, Far Eastern Economic Review, and Barron's, and is the owner of a chain of 12 daily and over 17 weekly newspapers in communities across the United States. (3) The Tribune Company, through its publishing, broadcasting, and interactive operations, publishes eleven market-leading newspapers in the United States, including the Los Angeles Times, Newsday, the Chicago Tribune, the Baltimore Sun, the Orlando Sentinel, and 6 other daily newspapers across the United States, owns and operates twenty-two major market television stations in the United States, and operates a network of local and national Internet web sites that ranks among the top twenty-five news and information networks in the United States. (4) Belo Corp. is a media company with a diversified group of television broadcasting, newspaper publishing, cable news and interactive media operations in the United States. Belo owns 19 television stations that reach 13.9% of U.S. television households, and publishes four daily newspapers with a combined daily circulation of approximately 900,000 and a combined Sunday circulation of approximately 1.2 million in the United States. In addition, Belo owns or operates six cable news channels. Belo's Internet subsidiary, Belo Interactive, Inc., includes 34 Internet web sites, several interactive alliances and a broad range of Internet-based products. (5) Time Inc., founded in 1923, is the world's leading magazine company and the largest publisher of general interest consumer magazines in the United States, publishing about 140 regular-frequency titles with 298 million readers, including Time, Fortune, People, and Money. The company also publishes books under imprints including Warner Books, Little Brown and Time-Life Books. Last year, Time Inc. acquired IPC, the foremost magazine publisher in the United Kingdom, with about 80 regular-frequency titles. (6) The Associated Press is a not for profit news cooperative founded in 1848 which is owned by its 1,550 United States' daily newspaper members. In the United States alone, AP serves 1,700 newspapers and 5,000 radio stations. Worldwide, AP serves more than 15,000 news organizations - including newspapers, radio stations and television subscribers - in 121 countries. More than one billion people daily read, hear or see AP news. (7) Cable News Network, a division of Turner Broadcasting System, Inc., an AOL Time Warner Company, is one of the world's most respected and trusted sources for news and information. Its reach extends to 15 cable and satellite television networks; 12 Internet web sites, including CNN.com; three private place-based networks; two radio networks; and CNN Newsource, the world's most extensively syndicated news service. CNN's combined branded networks and services are available to more than 1 billion people in more than 212 countries and territories. (8) USA Today, a division of Gannett Satellite Information Network, Inc., a Gannett Co., Inc. subsidiary, is the United States' largest-selling daily newspaper, with a circulation of approximately 2.3 million. USA Today is available in 60 countries worldwide and USATODAY.com is one of the top newspaper Internet web sites. (9) ABC, Inc. is a broad-based communications company with significant holdings throughout the world. It owns, alone or through its subsidiaries, the ABC Television Network, the ABC Radio Network, ten television stations, and fifty-three radio stations. (10) CBS Broadcasting Inc. produces and broadcasts news, public affairs, and entertainment programming. CBS News produces morning, evening, and weekend news programming, as well as news and public affairs magazine shows, such as 60 Minutes and 48 Hours. CBS owns and operates broadcast television stations and, through a related company, Infinity Broadcasting Corporation, radio stations. (11) National Broadcasting Company, Inc. (NBC) is a diversified media company that produces and distributes news programming via broadcast television, cable television, the Internet and other distribution channels. NBC News, a division of NBC, produces news and public affairs programming for broadcast on more than 200 affiliated television stations across the United States, as well as programming aired worldwide. (12) National Public Radio, Inc., an independent, non-profit corporation, produces and distributes news and informational radio programming that reaches some 20 million people in the United States through public radio stations, persons in more than 140 nations by terrestrial and satellite radio, and people in all other areas of the world where Internet is available. NPR also represents the interests of its radio station members on issues of law and public policy. (13) Fox News Network, LLC (Fox News) owns and produces (1) the "Fox News Channel", a 24 hour/7 day per week cable news service which disseminates domestic and international news throughout the United States and internationally, (2) "Fox News Sunday", a weekly political talk program distributed on the Fox Broadcast Network, and (3) the "Fox News Edge", a broadcast news service which provides news video to various local broadcast stations through the U.S. (14) Fox Television Stations, Inc., one of the United States' largest owned-and-operated network broadcast groups, consists of 34 stations in 26 markets covering nearly 54% of U.S. television homes. The vast majority of these stations broadcast news several hours each day. (15) The Committee to Protect Journalists, a nonpartisan, nonprofit organization founded in 1981 by a group of U.S. foreign correspondents in response to often brutal treatment to their colleagues by authoritarian governments, is dedicated to monitoring abuses against the journalists and news organizations, regardless of their ideology or nationality, and promoting freedom of press throughout the world. CPJ defends the rights of the journalists worldwide to report the news without fear of reprisal. (16) Association of Independent Electronic Media (ANEM) (Belgrade, Yugoslavia) is an association of 29 independent radio and 16 television stations in Serbia and Montenegro, that has encouraged democratic reforms and strives for the highest values and professional standards in the broadcast media. Approximately 1.47 million people listen to ANEM's radio stations; the television programs of members of ANEM have a total of 1.54 million viewers. (17) British Broadcasting Corporation (BBC) is the oldest public service broadcaster in the world. It has a long tradition of covering news with depth, impartiality and an international perspective. The BBC World Service has been an important source of objective information to many countries over decades. There is now a highly successful BBC Online service and a rolling 24 hour news program. (18) Canadian Journalists for Free Expression (CJFE) is a nonprofit, non-partisan organization that defends press freedom and freedom of expression around the world. One of the principal activities of CJFE is the management of the world's only freedom of expression clearinghouse, the International Freedom of Expression Exchange (IFEX). With the operation of this network, CJFE has become a major player in the field of international advocacy in the area of free expression. (19) Center for Human Rights and Democratic Studies (CEHURDES), established in 1999 and based in Kathmandu, Nepal, is a non-government and nonprofit organization working for the promotion of human rights, press freedom and freedom of expression in Nepal. CEHURDES, a member of IFEX, consists of a committed group human rights workers, lawyers, social activists and journalists. (20) Croatian Journalists Association (HND), established in 1910, is a non-governmental professional association that seeks to promote freedom of the press and improve professionalism in the media. The Association is a member of the International Federation of Journalists (IFJ) and has 3,433 members. Approximately 1,800 of its members work for daily papers and Croatian radio and television while some 600 are with local papers and local radio and television stations, as well as various magazines. (21) The European Publishers' Council (EPC) is a high level group of Chairmen and CEOs of 27 leading European media corporations actively involved in multimedia markets spanning newspaper, magazine, Internet and on-line database publishing. Many EPC members have significant interests in private television and radio. (22) Express Newspapers, part of Northern & Shell Media, Britain's leading independent media network, publishes the Daily Express, the Sunday Express and the Daily Star with a combined circulation of around 1.7 million daily and 990,000 on Sunday. Express Newspapers also publishes the Irish Star as a joint venture and is about to launch a Sunday edition of the Daily Star. (23) Fairfax is an Australian publisher that publishes The Sydney Morning Herald, The Age, the Australian Financial Review, the Sun Herald, Business Review Weekly, and other newspapers and magazines. (24) Free Media Movement (FMM) of Sri Lanka is a media freedom organization of media professionals in Sri Lanka. It is active in the fields of advocacy, policy, and campaigning in order to safeguard, strengthen and broaden the freedom of media in Sri Lanka. (25) Greek Helsinki Monitor (GHM) is a non-governmental organization advocating human and minority rights and freedom of expression in Greece and the Balkans. It is affiliated with the Consortium of Minority Resources (COMIR), Euro-Mediterranean Human Rights Network (EMHRN), European Roma Rights Center (ERRC), International Freedom of Expression Exchange (IFEX), International Helsinki Federation for Human Rights (IHF), Minority Rights Group International (MRGI), One World Net, South East Europe Media Organization (SEEMO) and the World Organization Against Torture (OMCT). (26) Independent Journalists Association of Serbia (IJAS), established in 1994 as an independent and professional organization, is aimed at promoting free journalism and media pluralism, professional and ethical standards, protection of journalists' rights and interests, and mutual cooperation among journalists and journalist organizations at home and abroad. In cooperation with the International Federal of Journalists ("IFJ"), IJAS provides legal assistance to journalists free of charge, in cases of the regime's repression and in the domains of labor and professional rights. (27) The Media Institute of Southern Africa (MISA), founded in 1992, is a media freedom advocacy non-governmental organization which seeks to promote free, independent and pluralistic media in Southern Africa, including the eradication of criminal libel laws. Over the last ten years, MISA has provided training for journalists in an effort to improve their skills as well as funding for legal costs to those journalists who have been arrested for their work. (28) Radio B92 is an independent radio station in Belgrade, Yugoslavia that has covered war crimes issues extensively and has been at the forefront of transforming cultural influences in post-Milosevic Serbia. Radio B92 seeks to promote professional news reporting. B92 is a multi-faceted media house with a 12-year history, starting with a student-run radio station to an umbrella organization comprising over 250 staff in the fields of television, radio, internet, music, film and publishing. The radio station still forms the backbone of the B92 project. It mixes music, current affairs, entertainment and cultural programming to make it Belgrade's most listened-to station, with 40% of the capital's population tuning in each week. (29) Reporter's Committee for Freedom of the Press is a voluntary, unincorporated, nonprofit organization of news reporters and editors, dedicated to protecting the legal rights of reporters and supporting freedom of the press. The Reporter's Committee has provided representation, legal guidance and research in virtually every major press freedom case that has been litigated in the United States since 1970. (30) Reporters Sans Frontieres (RSF) is a French-based press organization with eight national branches in Belgium, France, Germany, Italy, Spain, Sweden, Switzerland, and the United Kingdom, and representatives in Bangkok, Washington, Abidjan, and Istanbul. Founded in 1984, RSF defends jailed journalists, provides practical help for journalists and news outlets working in difficult conditions, and fights for press freedom throughout the world. (31) Society of Professional Journalists is the United States' largest and most broad-based nonprofit journalism organization of broadcast, print and online journalists, dedicated to encouraging the free practice of journalism, the perpetuation of a free press around the world, and the stimulating of high standards of ethical behavior. Founded in 1909, SPJ promotes the flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects freedom of speech and press. (32) South East Europe Media Organization (SEEMO), created by the International Press Institute ("IPI"), is a non-government, nonprofit network of editors, media executives and journalists from eight countries in Southeast Europe (Albania, Bosnia, Bulgaria, Greece, Croatia, Yugoslavia, Macedonia and Romania) seeking to promote press freedom, improve ethical standards in the media, promote the free flow of information throughout the region, and promote cooperation and understanding through professional exchanges. SEEMO also supports the development of editorially independent public service broadcasting aimed at replacing state-controlled structures. (33) World Association of Community Radio Broadcasters (AMARC) is an international non-governmental organization for the promotion and defense of community radio broadcasters worldwide. Its goal is to support and advocate the development of community and participatory radio on the principles of solidarity and international cooperation. Created in 1983, AMARC now has nearly 3,000 members in more than 100 countries. (34) World Press Freedom Committee (WPFC) is a coordination group of 44 national and international news media organizations on six continents. WPFC is especially concerned with press freedom issues arising in deliberations at inter-governmental organizations such as the UN, UNESCO, Council of Europe, OSCE, African Union and the OAS. WPFC monitors these to detect threats to press freedom, then alerts its affiliates and coordinates united responses to such threats. Discussion 23. Contrary to what is suggested in the Decision of the Trial Chamber, the issue of whether a journalist should be afforded a qualified privilege against compelled testimony is one that is presented squarely by this case. Whatever standard the Court applies to Mr. Randal's case - and the Court must apply some standard, however it articulates it - will likely be the standard that guides future requests to compel journalists' testimony. This is not, as the Trial Chamber suggested, an abstract question or a mere academic pursuit. To the contrary, it is directly relevant to the particular facts of Mr. Randal's case and to all similarly situated journalists reporting on war conflicts worldwide. Whatever the standard applied by this Court is, it will set a precedent, not only in the courts, but also on the battlefield. It will affect the scope and extent of future conflict-zone reporting and dissemination of critical information to the public, and will undoubtedly impact the investigative efforts of countries and prosecutors in uncovering future war crimes and human rights violations. 24. The standard applied by the Trial Chamber in this case - a vague "balancing test" in which "pertinent" evidence can be compelled as a method of first resort - should be rejected as contrary to core principles of freedom of expression. Amici submit that a clear, bright-line test is needed to provide predictability for journalists and their sources, a test that provides for a presumption that journalists should not be compelled to testify unless an affirmative showing is made that the evidence in question is "essential" and that it is not available elsewhere. 25. As both the Trial Chamber and the prosecutor acknowledged, journalists have played an important role in uncovering the truth about potential war crimes, both by exposing them to the public and, in many instances, to the Tribunal itself. The media's coverage serves to provide the public with crucial information about wars, information which may, in fact, lead them to support or oppose their nation's participation. The coverage brings "to the attention of the international community the horrors and reality of conflict." Moreover, war reporting exposes violations and provides essential material for prosecutorial investigation that often leads to the arrest of war criminals. The Trial Chamber, in its Decision, rightly acknowledged that this very Tribunal owed its existence in large part to the work of journalists, particularly war correspondents. 26. Journalists' work frequently aids the investigation of war crimes by uncovering evidence that war-crimes investigators themselves have yet to uncover. To cite only a few of countless examples, war correspondent Elizabeth Neuffer of The Boston Globe led investigators in Bosnia on the Srebrenica case to a trail of skeletons she and a colleague discovered, the bodies of which were those men who marched out of Srebrenica. Similarly, in 1997, journalists who reported from Rwanda and Zaire found themselves in possession of vital information (including plans of imminent attacks) that Tribunal investigators could not have uncovered because they had not received permission to cross into Zaire. It was the reporters who retrieved this information and made it available to Tribunal investigators. In Northern Ireland, evidence collected by journalists significantly aided the judicial inquiry into the killings on Bloody Sunday in 1972. This critical reporting both serves as an early warning system against the commission of crimes, and the critical step in gathering crucial evidence in investigating crimes and apprehending its perpetrators. 27. The Trial Chamber also did not question that these benefits can only occur if journalists are provided continual access to war zones to conduct interviews and observe crimes. What it failed to appreciate, however, is that forced disclosure of the fruits of journalists' news gathering activities or the production of investigative materials or the compelled testimony of journalists against those very sources they used, would seriously frustrate the news gathering and reporting functions of war correspondents. Quite simply, compelling reporters to testify will inevitably reduce their access to potential sources for news. 28. The connection is straightforward: forcing reporters to testify against their sources (confidential or otherwise) will make future sources more hesitant to talk to the press, particularly in war zones. Much of the war reporting that has been done and the benefits that have been achieved could not have been possible had the sources of the news (i.e., alleged war criminals, witnesses and others) known that one day in the future the reporter would turn around and testify against them in a war crimes tribunal. As one reporter has put it, "Had that been the case, I would not have been able to break several stories which, ironically, aided the Tribunal in several of its cases." 29. The hazards of forcing reporters to testify at war crimes tribunals exist at many levels. First, compelling journalists to testify about their news gathering would fundamentally curtail their ability to access information. To take just one example, Ms. Neuffer broke a story in 1996 about the chain of command in the Srebrenica massacre, identifying for the first time the links between the men on the ground and their commander, Radislav Krstic. A second story, which appeared a few days later, described a subsequent campaign to conceal the evidence of the mass graves. Ms. Neuffer states unequivocally in her affidavit that she "never would have been able to systematically piece together either story" if she had not been able to assure her sources that they would be protected and that she would not find herself forced to give evidence about them to the Tribunal. 30. Such instances are too numerous to recount in a single brief. Suffice it to say that the collective experience of each and every amici strongly suggests that compelling journalists to testify about their news gathering activities would seriously limit their ability to access newsworthy information. 31. Similarly, journalists will have less access to information if they lose their independence, or if others conclude that journalists are not independent. At their very best, journalists are objective reporters of the news. They are not tools of the prosecution or investigative arms of governments or courts - and it is important to honor this distinction. By compelling reporters to testify whenever the Tribunal determines that they might have pertinent testimony, the Tribunal will rob war correspondents of their status as observers and transform them, into participants, thus undermining their credibility and independence. 32. If war correspondents are perceived as betraying confidences or as later aiding in criminal prosecutions, they will be viewed with a higher level of suspicion and will not be given opportunities to interview, observe or report from war-torn regions. As one observer queried: "Might [the Tribunal seek] . . . the effective conscription of war reporters as the court's agents, observers and therefore its unarmed foot soldiers? Such a policy would be counter-productive, since a dead witness is of no use to any tribunal." 33. War correspondents already face grave and increasing dangers in the field. As the statistics of the International Press Institute indicated, in 2001, 55 journalists were killed in the field because of their work. Former war correspondent Tony Geraghty (of the Sunday Times (London), the Guardian (London) and The Boston Globe (Boston, Massachusetts, USA)) is familiar with the dangers of war reporting: "I have been shot at during gun battles in Belfast, arrested at gunpoint, beaten up by various security forces, imprisoned in Nigeria and made the object of an assassination contract by British mercenaries in Angola." His submission to this Court is worthy of its scrutiny. 34. The statements submitted in conjunction with this amici brief demonstrate why experienced reporters believe that the Trial Chamber's decision in Mr. Randal's case significantly puts their safety at issue. As one reporter stated, "Covering stories about war-time situations is dangerous business. Potential war criminals might see journalists as potential enemies if they knew that journalists could be compelled at some later time to testify against them at the Tribunal." 35. Another journalist has described the risk this way: "if dictators see reporters as potential witnesses in prosecutions, tyrants in trouble will be likely to kill those witnesses." Jonathan Randal himself has made the point, arguing that, if the Trial Chamber's decision were to stand, "journalists would as a collective profession be put at risk of greater harm and danger." Amici collectively agree with this assessment. 36. The result is certain: the clear benefits journalists provide - and which both the OTP and Tribunal acknowledge - will be severely undermined by routinely or too easily compelling reporters' testimony. Even when findings are published and sources are known, the link between the forced disclosure and the loss of journalists' independence is compelling, as it significantly changes the tone of journalists' work and the willingness of sources to comply with reporters' requests for interviews. Particularly in this region, journalists have stressed the threat to their safety posed by the Trial Chamber's Decision. 37. We do not urge that the journalists' privilege with regard to non-confidential materials should be absolute. Nobody before this Court has argued for an absolute privilege. While the protection of journalistic interests - and the interests of the public that are served by journalists - is of the greatest import, the need for justice in the prosecution of war criminals is also one of the highest order. A qualified privilege strikes the right balance between protecting journalists in most cases, without fatally compromising in any case the important work of the Tribunal. The Need for this Tribunal to Establish Predictable Guidelines 38. The vague "balancing test" proposed by the Trial Chamber (and endorsed by the OTP) provides practically no guidance to journalists or their potential news sources in an area where predictability is of the utmost importance. In fact, the test as actually applied by the Trial Chamber seems to permit courts to compel journalists to testify even when the relevance of their testimony is uncertain - irrelevant testimony is simply stricken after the fact - and requires no inquiry at all into whether or not the information is readily obtainable through other sources. This test places far too little emphasis on the speech rights implicated by compelling journalists to testify. Worse yet, the unpredictability that would result from such a test would exacerbate the problems inherent in compelling journalists to testify by making journalists and potential news sources unsure of how difficult it will be in any given case to compel journalists to testify before the Tribunal. 39. In its Decision, the Trial Chamber recognized "the importance that journalists should not be subpoenaed unnecessarily, and that the summoning and examination of journalists before this and similar courts or tribunals be conducted and regulated in a way which will not unduly hamper, obstruct or otherwise frustrate the vital role of news gathering of the journalists and/or the media." But the test applied by the Trial Chamber will have the opposite effect by practically ensuring that journalists will be subpoenaed unnecessarily. It does not require a showing that the evidence in question cannot be obtained through other sources before a journalist can be subpoenaed. Likewise, as the journalist statements submitted with this brief demonstrate, the test will undoubtedly "unduly hamper, obstruct, or otherwise frustrate" the news gathering role of journalists. 40. The Trial Chamber concluded that Mr. Randal would not be put in personal danger by his having to testify. But this is not only of dubious accuracy (see Reply Brief of Randal at pars. 9, 13) but offers no guidance to further courts in determining what general principles should be applied in determining when journalists may be required to appear. 41. The Trial Chamber's approach also undervalues free speech rights because it essentially allows journalists to be compelled to provide any testimony that is "pertinent" in any way to the case - even if it is not (as the Trial Chamber suggested here) essential to the case. This is not nearly a strong enough standard to guide tribunals in the rights of journalists and the interests of the public. Practically every statement a journalist makes can be "pertinent to" a case. Moreover, the Trial Chamber's "ask questions first, determine relevancy later" approach fails to recognize the chilling effect such testimony has on future news gathering efforts. 42. Just as the Tribunal has established a privilege for ICRC workers on the theory that their independence needs to be preserved if they are going to do the work they do, the Tribunal should extend a similar privilege to war-zone journalists, because they too need to remain independent and impartial in order to effectively perform their functions. A Standard for the Qualified Privilege 43. The guidelines for a qualified privilege must be grounded in a solid test, one that is fair to the accused, the prosecution and the public, and one which reflects the paramount importance of maintaining an independent press and the public interest of receiving information Accordingly, amici propose that this Court allow journalists a qualified privilege not to be compelled to testify, and apply a presumption when a subpoena is sought that this privilege should be upheld. No journalist should be subpoenaed to testify in front of a war crimes tribunal unless their testimony: (1) is absolutely essential to the case; and (2) the information cannot be obtained by any other means. 44. For testimony to be "absolutely essential" it should clearly be more than just "pertinent to" or "relevant to" a case. As explained above, if that is the standard, nearly every statement made during war time could be relevant to a subsequent case about the war crimes. For testimony to be "essential," its contribution to the case must be critical to determining the guilt or innocent of a defendant. It should not be peripheral to the issues or the parties of the case. 45. Second, requiring that the information cannot be obtained by any other means requires the party seeking the subpoena to establish that it cannot obtain the evidence any other way - from other witnesses, articles, sources or otherwise. The burden therefore falls upon the party seeking the subpoena, not upon the reporter, to show that it exhausted all other available avenues of obtaining information. 46. Contrary to what the OTP claims, a qualified privilege for reporters is not a novel concept. It has seen support, as Applicant has demonstrated, in courts around the world. While domestic law is not binding upon this Tribunal, the reasons and policies underlying domestic decisions and guidelines are certainly relevant to the Tribunal's decision in the instant case, particularly as this is a matter of first impression. Persuasive Authority in Support of A Qualified Privilege for Journalists 47. The 1996 case of Goodwin v. United Kingdom, in the European Court of Human Rights, provides support for the notion of a qualified journalistic privilege. Though this case ostensibly deals with the protection of journalistic sources as being a basic condition for freedom of the media, the importance of the decision goes far beyond that one point. A deeper reading of the case and the purpose of its submission underscores the need to protect journalists at large, and the importance of the role of journalists to the public - i.e., the "public-watchdog role." 22 EHRR 123, par. 39 (1996). That role is no different, and their obligations no lesser, when sources are disclosed and information is published. 48. In another example, the United States Department of Justice (US DOJ) has internal guidelines ("Policy With Regard to the Issuance of Subpoenas to Members of the News Media") with respect to issuing subpoenas to journalists. 28 C.F.R. § 50.10. The OTP argues that the US DOJ Guidelines demonstrate that prosecutors should have discretion to determine when journalists should be subpoenaed. But this misses the point. The success of the US DOJ Guidelines - which are touted by both American prosecutors and journalists alike - in striking a delicate balance between the free speech rights of the public and press and the rights of the government to effectively enforce the law, provide persuasive authority for this Court to adopt similar guidelines in cases before the Tribunal. 49. Notably, the US DOJ Guidelines are not limited to subpoenas regarding confidential sources, but rather apply to any subpoena issued to a member of the press. They are intended to strike the proper balance between the public's interest in the free dissemination of information and the government's interest in effective law enforcement, and to essentially "provide protection for the news media from forms of compulsory process, whether civil or criminal, which might impair the news gathering function." Id. In setting forth the reason for its internal guidelines, the Department of Justice explained that "[b]ecause freedom of the press can be no broader than the freedom of reporters to investigate and report the news, the prosecutorial power of the government should not be used in such a way that it impairs a reporter's responsibility to cover as broadly as possible controversial public issues." Id. 50. The US DOJ Guidelines do not extend an absolute privilege to the media. Rather, as amici have proposed, they outline a process for the government and the press to cushion potential conflicts by ensuring that the press is the last resort, not the first, of government investigations. The most significant relevant elements of the US DOJ Guidelines require that the information sought in a reporters' subpoena be essential, be unavailable from other sources, and be non-peripheral. Specifically, relevant portions of the US DOJ Guidelines provide for the following: (1) all reasonable attempts to be made to obtain the information from non-media sources before issuing a subpoena to a member of the press; (2) negotiations between the press and the government to attempt to accommodate all parties' interests; (3) the express authorization of the Attorney General before issuing a subpoena to a member of the press; and (4) in a criminal case, reasonable grounds, based on non-media sources, to believe that a crime has occurred, and that the information sought is essential to a successful investigation, particularly with regard to establishing guilt or innocence; and that the subpoena not be used to obtain peripheral, non-essential, or speculative information. 51. Federal courts in the United States have recognized a qualified privilege for journalists from being compelled to testify about their news gathering, stemming from the same considerations of the strong public interest in full disclosure of information and objectivity of the press. The privilege has its roots in Justice Powell's critical concurring opinion in Branzburg v. Hayes, 408 U.S. 665, 710 (1972) (Powell, J., concurring). In that case, the Supreme Court of the United States was presented with journalists who had been held in contempt for failure either to appear or to testify before grand juries that were investigating criminal conduct that the reporters had learned about in the course of preparing stories for publication. As the OTP correctly observed in its submission, the Supreme Court upheld the contempt conviction in a 5-4 decision. However, Justice Powell, who joined the majority, wrote separately to illustrate the narrowness of its scope. In so doing, Justice Powell clarified, in an oft-quoted passage, that: "[I]f the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without legitimate need of law enforcement, he will have access to the court on a motion to quash...." Id. at 710. 52. Nearly every court to consider the question since Branzburg has interpreted Justice Powell's concurrence not only as concluding that journalists may not be subpoenaed when their information bears only on a "remote and tenuous relationship" with the case, but that they have a qualified privilege against disclosing information learned during their news gathering activities or producing their resource materials in response to a subpoena. See, e.g., Schoen v. Schoen, 5 F.3d 1289, 1292 and n.5 (9th Cir. 1993) (surveying cases and noting that the almost all federal courts have recognized a qualified privilege for journalists to resist compelled discovery). That these cases are based on different factual scenarios does not diminish the force of their message - the importance of the continual dissemination of information and the need to carefully balance the interests involved. 53. This privilege has also been applied to protect non-confidential material from disclosure as well. See, e.g., Church of Scientology International v. Daniels, 992 F.2d 1329, 1335 (4th Cir.) (affirming district court's quashing of subpoena where the source and materials sought were non-confidential), cert. denied, 510 U.S. 869 (1993); Schoen, 5 F.3d at 1295 ("the journalists' privilege applies to a journalists' resource materials even in the absence of the element of confidentiality"); United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988) ("[W]e discern a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if non-confidential, becomes routine and casually . . . compelled."); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp. 1211, 1213-14 (M.D.N.C. 1996) (surveying law and concluding "[i]t is clear . . . that many Circuits have recognized a privilege which protects non-confidential information and other editorial or resource material" but concluding that privilege overcome on facts before it); Loadholz v. Fields, 389 F. Supp. 1299, 1303 (M.D. Fla. 1975) ("The compelled production of a reporter's resource materials is equally as invidious as the compelled disclosure of his confidential information."). 54. The force of these decisions is clear. Compelled testimony - even of non-confidential material - chills the free flow of information to the press and to the public. The Qualified Privilege Should be Applied to Mr. Randal 55. The application of the standard set forth above to Mr. Randal's case reveals that Mr. Randal should not be compelled to testify about his article. First, as the Trial Chamber acknowledged, his testimony is not at all essential to the case. As an initial matter, all parties admitted that it is highly likely that the article falls outside the time period covered in defendant's trial (the conspiracy period). Moreover, Mr. Randal can only provide hearsay testimony - that is, he can only attest to the credibility of X as an interpreter and to defendant's demeanor. Because he does not speak Serb-Croat, he cannot even testify as to the words spoken or the context of defendant's responses. Such testimony about X or defendant's demeanor is by no stretch essential to the determination of defendant's guilt or innocence. Furthermore, notwithstanding the language barrier, there is no basis for assuming that Mr. Randal's testimony will yield evidence that is essential to the case. The OTP's case does not rest on the elucidation of Mr. Randal's article. During the hearing on the Motion to Set Aside, Judge Agius even admitted that "we may end up in a situation whereby we . . . come to the conclusion that for all intents and purposes his evidence is not going to be of any importance to us." No journalist should be compelled to testify under such circumstances. 56. Second, even assuming arguendo that Mr. Randal's article were deemed absolutely essential to the determination of the case, there has been no demonstration that his testimony is the only means of obtaining the same information. Whether the defendant made similar statements to others, for example, has not even been explored by the Tribunal. 57. Without satisfying either prong of the standard, this Tribunal should not compel Mr. Randal to testify. Rather, the presumption should be upheld and Mr. Randal's position as an independent journalist should not be unnecessarily compromised. Conclusion 58. For reasons set forth above, amici respectfully urge this Tribunal to recognize a qualified privilege for journalists not to be compelled to testify about their news gathering before this Court unless certain conditions are met - namely, that the information is absolutely essential to the case, and that it cannot be obtained by any other means. Applying this standard to Mr. Randal's situation, it is evident that he should not be compelled to testify. We respectfully submit that the Decision below should thus be reversed and Mr. Randal's appearance not be required. 59. Amici respectfully reiterates its earlier request for one hour of oral argument if the Court entertains argument on this appeal. Dated: August 17, 2002 New York, New York _________________________________ Floyd Abrams Joel Kurtzberg Karen Kaiser Cahill Gordon & Reindel 80 Pine Street New York, NY 10005 UNITED STATES OF AMERICA 1-212-701-3120 (phone) 1-212-269-5420 (facsimile) Counsel for Amici Curiae, the New York Times Company, the Dow Jones Company, the Tribune Company, Belo Corp., Time Inc., the Associated Press, Cable News Network, USA Today, ABC, Inc., CBS Broadcasting Inc., National Broadcasting Company, Inc., National Public Radio, Inc., Fox News Network, LLC, Fox Television Stations, Inc., the Committee to Protect Journalists, Association of Independent Electronic Media, British Broadcasting Corporation, Canadian Journalists for Free Expression, Center for Human Rights and Democratic Studies, Croatian Journalists Association, European Publishers' Council, Express Newspapers, Fairfax, Free Media Movement of Sri Lanka, Greek Helsinki Monitor, Independent Journalists Association of Serbia, the Media Institute of Southern Africa, Radio B92 Belgrade, Reporters Committee for Freedom of the Press, Reporters Sans Frontieres, Society of Professional Journalists, South East Europe Media Organization, World Association of Community Radio Broadcasters, World Press Freedom Committee.