In December 2002, the U.N. Tribunal charged with prosecuting war crimes in the former Yugoslavia ruled that Washington Post reporter Jonathan Randal could not be compelled to provide testimony in the case of a Bosnian Serb official accused of carrying out a campaign of ethnic cleansing."If war correspondents were to be perceived as potential witnesses for the Prosecution," the Tribunal noted, they "may shift from being observers of those committing human rights violations to being their targets." As a result of that ruling, war correspondents enjoy some immunity against compelled testimony at the international level. But this is not necessarily the case in the United States.
A case playing out in the U.S. Court of Appeals in Boston highlights the lack of protection for conflict reporters under U.S. domestic law. Ed Moloney, an award-winning Irish journalist who has covered the conflict in Northern Ireland since 1979, and researcher Anthony McIntyre are fighting to keep their confidential sources secret. Moloney, a permanent resident of the United States, directed "The Belfast Project," an oral history project documenting "The Troubles" that was deposited at Boston College in an archive that would be sealed, according to the terms of the project, until the participants granted permission or died. Among the many interviews in the project are ones from the late 1990s with Brendan Hughes, who subsequently died, and Dolours Price, who is very much alive. Both are former members of the Irish Republican Army. Non-confidential parts of these interviews were used in a book by Moloney and a subsequent high-profile documentary.
The British government is now seeking access to the oral history project for an investigation into the 1972 killing of Jean McConville, a mother of 10 in Belfast whom the IRA has admitted to killing because she was suspected of being an informant. McConville's killing has received a lot of attention in Ireland because of allegations that Sinn Féin leader Gerry Adams commanded the IRA unit responsible for ordering her execution and secret burial, allegations that Adams denies. Critics of the UK prosecution have called it a political attack on Adams and say it could undermine the 1998 peace deal that ended decades of fighting in Northern Ireland.
Under the terms of a bilateral agreement, U.S. authorities are cooperating with the UK investigation and have served Boston College with a subpoena to produce the materials. Moloney says these include confidential journalistic material he used for his book and documentary. If the subpoenas are successful Moloney may be legally obliged to verify the material so it can be used as evidence in criminal proceedings, something he says he will not do.
In December, a judge ruled that Boston College had to turn over the interviews with Price. Then, in January, a judge ruled the university had to hand over interviews with seven other subjects who also discussed the killing. Boston College has appealed that ruling, challenging whether the material is necessary to the investigation. That case is expected to be heard in June.
Meanwhile, Moloney and McIntyre have filed a legal challenge of their own asserting that they should be allowed to participate in the case so they can fully defend their interest in keeping the interviews under wraps. Their lawyers have argued that releasing the documents would violate Moloney's rights under the First Amendment and could endanger the life of McIntyre because of his IRA connections. The ACLU filed an amicus brief that lays out the legal arguments. A ruling is expected in the coming weeks on the motion by Moloney and McIntyre.
The implications from the Moloney case are twofold. First, conflict reporters based in the United States need to understand they could be subpoenaed as part of an international investigation and, if they were, their ability to protect their confidential sources is unclear.
To give one of many possible examples, if the Colombian government launched a criminal investigation into crimes committed by the FARC guerillas and asked the U.S. government to enforce a subpoena against a journalist for The New York Times, "I think they'd enforce it once a threshold showing was made that it was an actual government investigation," noted Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "And American authorities do not seem to give a rip whatsoever whether journalists are able to do their jobs anywhere in the world. Sad, but true."
Second, Dalglish notes, if a journalist is willing go to jail to protect a source, the only way to keep that commitment is to retain physical control of the material. Once the material is in the hands of another individual or institution, the challenges grow.
But while the legal issues in the Moloney case may be complicated, the principle is not. Journalists covering conflict, particularly those reporting on human rights violations and crimes of war, must be able to protect their confidential sources in order to be able to do their critically important job with some modicum of safety. While that principle has been upheld at the international level in the Randal case, it has not been established in the United States.