Handling of Subpoenas under DHS Worries Journalists

By Tannenbaum, Wendy | News Media and the Law, Winter 2003 | Go to article overview
Save to active project

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.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Handling of Subpoenas under DHS Worries Journalists
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?