FC: DOJ says Ashcroft approved my subpoena, Feds won't back down

[Declan McCullagh <declan@well.com>]

[I am en route to Berkeley, Calif, where I will be speaking at a Federalist 
Society event (fed-soc.org for details) this evening. Below are two 
messages I received from the U.S. government today. --Declan]

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Date: Fri, 9 Mar 2001 12:27:43 -0400
From: "London, Robb" <Robb.London@usdoj.gov>
To: "'declan@well.com'" <declan@well.com>
Cc: "'cypherpunks@cyberpass.net'" <cypherpunks@cyberpass.net>,
         "'cypherpunks@algebra.com'" <cypherpunks@algebra.com>
Message-Id: <"USAWAWML01-010309162743Z-37012*/PRMD=USDOJ/ADMD= /C=US/"@MHS>

Attorney General Ashcroft personally approved your subpoena, and that of 
another reporter who published admissions by James Dalton Bell.

The Government is not seeking any source material, notes, or other 
unpublished material from you by virtue of this subpoena.  The limited 
purpose of the subpoena is to have you review two of your published 
articles, acknowledge your authorship, review several of the statements 
which you attributed to Bell in your articles, and have you verify that he 
in fact told you those things.  That's all.  We're only interested in 
having you testify about statements of his that you published.  If your 
subpoena could have been avoided, it would have been.  Unfortunately, the 
Federal Rules of Evidence do not permit a news article to be admitted into 
evidence for these purposes unless the person who wrote it can attest to 
its authorship and the accuracy of its content.  This must be done in open 
court, at trial, and cannot be accomplished by affidavit, unless the 
defendant is willing to stipulate that your appearance can be avoided and 
that your articles can be admitted into evidence without your appearance as 
a foundation witness.  Mr. Bell is not interested in any such 
stipulations.  I regret any inconvenience that a trip to Tacoma may cause.

I am extremely sensitive to the intrusiveness of any subpoena and the 
potential negative impact that press subpoenas can have on the news 
gathering function.  The subpoena that has been served on you, is, in my 
experience, as minimally intrusive as any such subpoena can be.

Robb London
Assistant United States Attorney
Western District of Washington

*********

DoJ regulations governing subpoena'ing journalists:
http://squid.law.cornell.edu/cgi-bin/get-cfr.cgi?TITLE=28&PART=50&SECTION=10&TYPE=TEXT

They say:
(c) Negotiations with the media shall be pursued in all cases in which a 
subpoena to a member of the news media is contemplated.
and
All reasonable attempts should be made to obtain information from 
alternative sources before considering issuing a subpoena to a member of 
the news media
and
No subpoena may be issued to any member of the news media or for the 
telephone toll records of any member of the news media without the express 
authorization of the Attorney General

*********

From: Gordon Jeff  TIGTA <Jeff.Gordon@tigta.treas.gov>
To: "'declan@well.com'" <declan@well.com>
Subject: Bell Trial Schedule
Date: Fri, 9 Mar 2001 09:54:15 -0500
Return-Receipt-To: Gordon Jeff  TIGTA <Jeff.Gordon@tigta.treas.gov>
MIME-Version: 1.0
X-Mailer: Internet Mail Service (5.5.2448.0)

Declan

You need to be at the Tacoma Courthouse by 2:30 PM on Monday, 4/2/01 to
testify.  We anticipate that you will testify either that afternoon or the
next day, Tuesday 4/3/01.  To be on the safe side, your flight out should be
scheduled for after 5:00PM on 4/3/01.

In order to ensure reimbursement, travel arrangements should be made through
Dru Mercer at the United States Attorney's office, (206) 553-7970.

You can contact me by e-mail or by phone (503) 326-2787 if you have any
questions.

Jeff

*********




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