Handling of Subpoenas under DHS Worries Journalists
Tannenbaum, Wendy, News Media and the Law
When the new Department of Homeland Security gets into gear, journalists hope it will adopt guidelines to protect them from unnecessary subpoenas. If it does, it would be wise to follow tested policies already in place at the Justice Department.
Those policies, "Attorney General Guidelines on Subpoenaing the News Media," balance the public's interest in a free flow of information with the interest in effective law enforcement. In place for nearly three decades, the guidelines spell out specific procedures the department must follow when it subpoenas a member of the news media.
Before a federal prosecutor may issue a subpoena to a reporter, Justice Department regulations require that "[a]ll reasonable attempts should be made to obtain information from alternative sources."
The regulations also require that prosecutors negotiate with the media. No subpoena may issue without authorization from the Attorney General, unless the material sought already has been published, and the news organization has consented to disclosure.
In addition, Justice attorneys can subpoena only information that is "essential" to a case.
"The subpoena should not be used to obtain peripheral, nonessential, or speculative information," according to the rules.
The guidelines in place at Justice also limit the use of subpoenas to get at a reporter's telephone records. The provisions concerning phone records are rigorous: The department must have grounds to believe a crime has been committed, the information sought must be essential, and the reporter must be given timely notice of the Attorney General's authorization of the subpoena.
While the Attorney General's guidelines do not have the force of law, experience has shown that they usually are respected and followed by department attorneys.
In May 2002, for example, federal prosecutors in Manhattan withdrew a subpoena to MSNBC after they realized they had not obtained authorization from the Attorney General.
DHS staff did not return phone calls to discuss whether the topic of subpoenas to news media has been discussed by officials there.
Whether DHS will even use subpoenas and search warrants is unclear. Legal experts in the relatively new field of homeland security are not certain whether the department will focus on law enforcement or will serve as simply a clearinghouse for security-related information.
According to Mark Corallo, a Justice Department spokesman interviewed before DHS officially opened, the new department would not have law-enforcement authority, and all such investigatory powers will remain with justice. …