COURTSIDE: US Journalist Fights Subpoena

Jonathan Randall, a Washington Post journalist who has refused to testify against an indicted war criminal he interviewed nine years ago, has appealed over the tribunal's decision to summon him.

Randall maintains that he should not have to testify. However, after he objected to the court subpoena in January, the tribunal confirmed its original decision in June (see Tribunal Update No. 270).

The reporter's defence team has now appealed to the court to reconsider its assessment of the case and decide whether, as a journalist, he qualifies for privileged status.

They say the court's power to subpoena must be tailored to public interest, and that the tribunal failed to properly address the issue in Randall's case. "The reporters' privilege derives from the principle of freedom of expression because they have a vital public watchdog role," Randall said in his appeal.

The appeal explains that reporters should not be exempted from testimony at any cost but should only testify voluntarily, and after the value of their evidence has been weighed against possible repercussions for the journalist.

It should be noted whether another source could provide similar evidence, and whether revealing his sources would endanger the correspondent.

Randall claims that his evidence has little value for the court. He points out that as his interview with Brdjanin was conducted through an interpreter, the February 1993 article may contain inaccuracies. He points out that the feature concerns a time that was not relevant to the indictment.

The appeal says there is "simply no evidence" that Randall's testimony is essential to the case, or that statements of Brdjanin's intent are unavailable from other sources.

Randall is currently working on a book about terrorism and says many interviewees would not cooperate if they thought he might testify against them in court one day.

The appeal says the court neither discussed nor showed awareness of the possible public policy implications of its conclusion. So, the decision - that Randall's testimony may shed light on the accused's state of mind at the time of the conflict - is insufficient to justify the subpoena.

Although Randall identified Brdjanin in his piece and would not be disclosing him as the source during testimony, the reporter's lawyers say the accused's defence may prompt the witness to disclose other sources not mentioned in the article.

The appeal says that through giving evidence, journalists may be perceived as the "prosecutor's tool", undermining their objectivity and neutrality and inflicting great damage on the profession.

It quotes the tribunal's first chief prosecutor, Judge Richard Goldstone, who in the foreword to his 1999 book Crimes of War, wrote, "If reporters become identified as would-be witnesses, their safety and future ability to be present at a field of battle will be compromised. In my opinion the law takes too little account of that reality".

Randall is now seeking an oral hearing of his appeal.

Mirna Jancic is an IWPR assistant editor