Here’s the scoop.

Mr. Gertz writes about national security for the Washington Times, Fox News and other news outlets. Lately he has been covering industrial and political espionage from Communist China. As an American reporter who has studied the Chinese language I echo his concerns. But Mr. Gertz has used the wrong methods to cover the right issue. As news articles reveal, he is alleged to have received stolen intellectual property when he quoted anonymous leakers involved in a federal grand jury investigation. It is crime for anyone connected with a federal grand jury to reveal anything about its proceedings. This to prevent the Grand Jury from being turned into a witch-hunt and to protect those innocently accused from having their names dragged through the mud.

To be perfectly frank there are no innocents in this case. In fact the person who wants Mr. Gertz to name his anonymous Grand Jury source is convicted spy Tai Wang Mak. Mak was recently sentenced to 24 years in prison after being found guilty. Now this, ahem, dirtbag is demanding that the judiciary investigate why a supposedly-secret legal process leaks like a political campaign. Material this rich could be a Hollywood movie!

But here’s an unfunny fact: in the United States even dirtbags have rights and even crime-fighters must follow the rules. Indeed, one of the best precedents regarding the rights of criminals was set by Sheriff Andy Griffith of Mayberry, whose integrity and home-spun wisdom made his 1960s TV series so enormously popular.

Below I cite a few lines from a show that aired on October 30, 1967, in which Andy scolds his son, Opie (played by actor-turned-producer Ron Howard) for secretly recording a suspect talking with his lawyer. We join the action as Andy takes away the tape recorder after telling Opie he can’t listen to this illegally-obtained information.

• Opie: Pa, you’re erasing the tape.
• Andy: That’s what I mean to do. You bugged a conversation between a lawyer and his client. Now that’s violating one of the most sacred rights of privilege.
• Opie: But, Pa!
• Andy: No buts.
• Opie: But if it it helps the law . . .
• Andy: Opie, the law can’t use this kind of help because whether a man is guilty or not we have to find that out by due process of law.
• (Here is a fair use copy of the clip so you can check my transcription: andy_griffith-1)

Now Andy and Opie weren’t dealing with national security. And it may be that people accused of crimes against the nation-state do not or should not have the same rights as the ordinary thugs who might rob, rape or kill Americans.

Mr. Gertz naturally has his own views of this GrandJuryGate. They are laid out in  an affidavit explaining why he should not have to reveal who whispers things in his ear. He calls himself an investigative journalist, which is like the reporter’s equivalent of a SWAT team.

But correct me if I am wrong but there the just five elements to journalism — who, what, when, where and why. If Mr. Gertz leaves out the “who” than he he does just 80 percent of the job, not the 110 percent we’d expect from an investigative reporter. Even giving him credit for 80 percent is generous. Journalists deserve a failing grade when they use anonymous sources because they deprive Americans of the most important tool for evaluating any statement — who said it?

On the other hand, let’s not make too much out of the fact that when Mr. Gertz was hauled into court recently — at the insistence of the dirtbag’s lawyers — he pled the Fifth. The Constitution gives all American, even reporters, the right to avoid self-incrimination. I would no more cast aspersions on Mr. Gertz for invoking that right than I would fault those who were called before the House UnAmerican Activities Committee during the late 1940s and early 1950s for refusing to incriminate themselves when asked whether they were communists or fellow travelers. 

But Mr. Gertz has created an ambiguous situation that reflects badly on professional journalism. For one thing his refusal to back up his work could make people wonder whether he is like  Jayson Blair, the lying liar who wrote fiction, not journalism, for the New York Times.

Furthermore, Mr. Gertz’s posture in this case suggests an “ends justify the means” approach more consistent with communism than with the American values of Andy of Mayberry.

 I do not know whether Mr. Gertz makes stuff up and I rather doubt that he is a communist, but to remove any ambiguity he should march back into court and say: Your Honor, breaking the story of Chinese espionage and my keeping my word are both so important that I insist on being jailed. And than he should fold his arms in stoic silence. Otherwise, people might think him a coward and a liar who expects the Justice Department and the judiciary to bend the law to aid his gossip-mongering.

Josh Wolf spent 226 days in jail for refusing to turn over unaired video of a protest in San Francisco. I blogged about his case for weeks and met him after his release at a Media Alliance event. Now I notice that he is doing media commentary and social activism for for CNet.

One of Wolf’s recent blog posts takes the Huffington Post to task for getting a big infusion of venture cash while insisting that it will not pay the roughly 1,800 guest bloggers who supplement the efforts of 43-paid staff. He writes:

“The Huffington Post is clearly earning a significant amount of money from advertising and is well on its way toward becoming a profitable company. I understand that the company couldn’t afford to pay its bloggers when the site first launched. I can even understand why it might not be possible today, but I find (CEO Ken) Lerer’s commitment to never pay the bloggers at the Post disconcerting. These talented writers have helped make the Huffington Post into the economic success it is quickly becoming, and to suggest that they should never share in that success seems shameful.”

I agree but now we need software systems to track the contributions that writers make to larger enterprises so they can get paid some share of the revenues that come in. That would create the option at least to reward contributors. Right now it’s not easy and therefore it’s not standard. Anyhow, nice to see Wolf on the media beat.  

Freelance journalist and anarchist Josh Wolf refused to turn over videotapes of a protest being investigated by a federal grand jury and had been held for 226 days. For the past four months I’ve written something about his case every Friday — until last week when he was released was I was traveling and out of touch. Thanks for your patience with this crusade, and thanks to Josh for contesting a federal court order that, had it been copied elsewhere, would have turned any person with a cameraphone into a prosecutor’s eyes and ears. Tom Abate aka MiniMediaGuy.

This article contains statements from Josh, and his lawyer, David Greene, on the day of Josh’s release from a federal prison in Dublin, California. Said Josh:

“Today, I posted the video footage to my web site www.joshwolf.net/ so that the public will have the opportunity to see that there is nothing of value in this unpublished footage. As there is no sensitive material on the tape, there was no reason to remain in prison, given the fact that I got what I wanted from day one – the right to protect journalists from having to testify before a grand jury.”

Greene, executive director of the First Amendment Project, was succint:

“Today, Josh got what he wanted from day one — he will not have to testify before the grand jury about the events at the protest or the identities of participants.”

I’m just getting back into the work flow so I won’t have more to say except to thank the many other bloggers who supported Josh (I got a note from Cody Molica who has blogged about Josh’s case extensively.)

Finally, thanks to new U.S. Attorney Steve Schools. He recently took over the office in San Francisco that had brought the case against Josh. Schools could have dragged out this overreaching investigation but he did the right thing — at last.

(Online Journalism Review has written about his case; you can read more in Wikipedia.)

(Freelance journalist and anarchist Josh Wolf has refused to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; you can read more in Wikipedia. In December I promised to write about his case every Friday until he is freed. Spread the word. — Tom Abate aka MiniMediaGuy).

Josh’s mom. Liz Wolf-Spada, passed on this note:

“There is another attempt at mediation coming up on Monday April 2 . . . I know it meant a lot to Josh that he caught a glimose of some of you out there to support him when the prison bus arrived at the courthouse (before his prior, unsuccessful mediation). If you can be there again, I think he got there between 8 and 9.

“For those of you who pray or have a spiritual practice please hold Josh up in your minds in a good way; let’s do that. Don’t forget to also keep his attorneys, the magistrate Judge Spero and the U.S. attorneys in your prayers, for an outcome that will be satisfactory for all and allow Josh to be released from prison while he continues to protect the rights of others who exercised free speech at the protest.”

Liz also pointed to a podcast, conducted by phone from the federal prison in Dublin, California, in which Josh tells interviewer Alex Stonehill of the Commom Language Project, why he is “in non-compliance” with the subpoena. Josh begins by thanking the (prison) administration for allowing him to talk. Josh’s tone struck me as firm but non-confrontational. He said his non-compliance was intended to avoid setting a precedent in which federal investigators could “turn journalists into surveillance cameras . . . force them to testify . . . (then) you’re no longer a journalist, you’re a cop.”

Here is a link to the podcast.

* * *

If you have not already done so, write to U.S. Attorney Steve Schools. Keep a level tone. It sounds like everyone is looking for a way out of this. If Josh can discuss his “non-compliance” calmly then surely you can make the case just as calmly for his release. Here are the addresses:

By snail mail: The Honorable Scott Schools, United States Attorney’s Office for the Northern District of California, 450 Golden Gate Avenue, 11th Floor, San Francisco, California 94102-3495
By email, send it to his assistant: natalya.labauve@usdoj.gov and she will refer it.

 

(Freelance journalist and anarchist Josh Wolf has refused to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; you can read more in Wikipedia. In December I promised to write about his case every Friday until he is freed. Spread the word. – Tom Abate aka MiniMediaGuy).

American Journalism Review has published a lovely portrait of Josh Wolf and his mother, Liz Wolf Spada, who is described as “an elementary school teacher with cropped gray hair who speaks in the earnest, optimistic tones of someone who spends a lot of time with young children.”

The AJR article, written by Dana Hull, a San Jose Mercury News reporter, concludes with a phone interview (prison officials would not allow a face to face visit):

“I’ve become more resolved in a few key points,” says Wolf . . .  ”I want to go to graduate school for journalism and get a better understanding of the history of journalism. And the issue of prison communication is very neglected within the entire justice system.” He’s embarked on a new project, PrisonBlogs.Net, which seeks to “provide prisoners with a voice, a public, and the sense of empowerment and the restored dignity this brings” by publishing their writing and art. Says Wolf: “I’ve got an exit plan.”

* * *

Meanwhile, Josh will receive the Newpaper Guild’s Herbert Block Freedom Award. It comes with a $5,000 prize. The Guild press release says:

“Wolf, a San Francisco freelance journalist . . . has been held in federal prison since August 2006 for refusing to turn over video he shot of a July 8, 2005, demonstration in San Francisco. Federal prosecutors looking into possible crimes committed during the protest called Wolf before a federal grand jury in February 2006. He was initially jailed in August, freed for a short period during an appeal and was returned to prison on Sept. 22, 2006, where he remains. His attorney has stated that the video Wolf shot does not depict the crimes being investigated, but does include interviews with some of the protestors who spoke on the condition that their identities would be protected. Wolf continues to appeal the ruling.” 

* * *

Hope continues that new U.S. Attorney Steve Schools will take a fresh look at Wolf’s case. If you have not already done so, write him. Keep a level tone. It’s hard for people to focus on your words when you’re hurling verbal insults. Here are the addresses:

By snail mail: The Honorable Scott Schools, United States Attorney’s Office for the Northern District of California, 450 Golden Gate Avenue, 11th Floor, San Francisco, California 94102-3495
By email, send it to his assistant: natalya.labauve@usdoj.gov and she will refer it.

 

(Freelance journalist and anarchist Josh Wolf has refused to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; you can read more in Wikipedia. In December I promised to write about his case every Friday until he is freed. Spread the word. – Tom Abate aka MiniMediaGuy).

Last week hopes rose and fell after a court-ordered mediation failed to find a face-saving way for Josh to win his freedom. Supporters are now being urged to write to a newly-appointed federal prosecutor to give the case another look. Some folks have promised to hold vigils outside the federal court building in San Francisco where his jailers work.

Please click through for details. It’s time to end the most misguided act of prosecutorial zeal since Javert made Jean Valjean miserable for stealing a loaf of French bread.

Most of this information comes from Liz Wolf Spada who is Josh’s mom. I haven’t met the woman (or her son for that matter) but if I ever land in the pokey for a princpled stand, I think I’ll ask her to adopt me. She writes:

Josh has suggested that it might help if we all wrote letters to the new US Attorney Scott Schools, both email and followed by snail mail. I think it would be most effective for everyone to compose their own letter with these points in mind:

• Urge him to drop the case as an assault upon civil liberties of free speech and free press.
• The police car in question suffered very minor damage (a broken tail light) and Josh’s punishment is disproportionate to any minor crimes he could have filmed from the location he was at during the protest.
• It sends a very harmful message to Americans and to the world about the state of press freedoms in the United States
• He has support from professional journalist groups including the Reporters Committe to Protect the Press, Reporters Without Borders, Committee to Protect Journalist, National Newspaper Guild, and two awards from Northern California Society of Professional Journalists

I’d add one other thing. Keep a level tone. It’s hard for people to focus on your words when you’re hurling verbal insults. Here are the addresses:

By snail mail: The Honorable Scott Schools, United States Attorney’s Office for the Northern District of California, 450 Golden Gate Avenue, 11th Floor, San Francisco, California 94102-3495
By email, send it to his assistant: natalya.labauve@usdoj.gov and she will refer it.

About the planned vigil: Wolf supporter Len Harrison (his website) plans to add the “Free Josh Wolf” banner to an Iraq War protest being organized by MoveOn.org on Monday, March 19. Harrison writes in part:

I will be there from 8 until the end of the MoveOn vigil. Please join me and leave as time and energy permits, although it would be great if some folks could try to make it for the latter part of things so that Josh Wolf is prominent within the MoveOn protest. At present I am uncertain of the schedule beyond Monday. At some point I will make this a five day a week thing, ten hours a day for myself . . . Down the road from that, I’ll go in the direction of 24/7 and eventually will begin a hunger strike. . . Please email me if you . . . are planning on taking part len (at) lharrison.net.

 

(Freelance journalist and anarchist Josh Wolf has refused to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; you can read more in Wikipedia. In December I promised to write about his case every Friday until he is freed. Spread the word. – Tom Abate aka MiniMediaGuy).

Keep your fingers crossed. Josh Wolf was to have started a mediation Thursday. I may be a bit out of the loop on the outcome as I am attending a conference (New Communications Forum) and preoccupied with that. But after 200 days this process stikes me as an encouraging sign that the government is seeking a way to let Josh free without losing face.

A press release about the mediation issued by Reporters Without Borders says in part:

“Joseph Spero, the judge named as mediator, should bear in mind that journalists are not meant to be police auxiliaries or informers . . . Wolf’s detention has been used to put pressure on him and it is time for it to stop.”

Liz Wolf Spada, who is Josh’s mother, sent out a note “asking you to just keep Josh in (your) thoughts and prayers.”

Amen to that, Liz. Because my own time is short and also because I see no point in beating the government over the head when it may finally be starting to listen, let me close with a few thoughts from Josh Wolf himself. They are culled from an interview done a few weeks ago by Pacifica radio host Amy Goodman, who posted a transcript of the interview on her Democracy Now website. Here are two excerpts:

AMY GOODMAN: Why are you refusing to comply?

JOSH WOLF: Well, there’s a number of reasons. It’s been viewed that the tape is central to the issue, but it’s also the testimony. Essentially, what the government wants me to do, as we can tell, is to identify civil dissidents who were attending this march, who were in mask and clearly did not want to be identified, but whose identities I may know some of, as their contact that I’ve been following in documenting civil dissent in the San Francisco Bay Area for some two-and-a-half years now.

(Break here)

AMY GOODMAN: Josh, in a January 29th court filing, federal prosecutors said that it’s in your “imagination” that you’re a journalist. . . Your response?

JOSH WOLF: I think it’s a very scary idea that the US Attorney, the Justice Department, the government prosecution feels that they can determine who is and isn’t a journalist. I think that’s the first step towards state-sanctioned journalism, and I think it also is indicative of a world almost a 1984 Orwellian world that I don’t think we want to live in. As far as whether or not I’m a journalist in my imagination, the New York Times has said I’m a journalist. The Society of Professional Journalists has awarded me an award as a journalist. Countless media outlets have said I’m a journalist. So if it’s my imagination and other journalists’ imagination, then who decides what is and isn’t a journalist? The government?

Late Thursday, this message came out from Josh Wolf’s mom:

“Mediation was not successful. Josh is back in jail. That is all I know. Needless to say I am very discouraged . . . Peace, Liz.”

(Freelance journalist and anarchist Josh Wolf has refused to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; you can read more in Wikipedia. In December I promised to write about his case every Friday until he is freed. Spread the word. – Tom Abate aka MiniMediaGuy).

Two weeks ago I mixed things up a bit by letting my brother, a New Jersey attorney, use this space to argue that Josh Wolf was justly jailed. Last Friday I replied to the effect that he should never have been imprisoned. 

I started thedebate by saying I wouldn’t argue that Josh deserved any special treatment as a journalist. My position is that no citizen should be imprisoned on such flimsy pretext as has he. 

But Cody Molica, a writer and legal researcher living in Santa Rosa, refused to concede the jailed journalist issue. He wrote in to say:

“So Josh Wolf is not a journalist? That’s interesting because the Society of Professional Journalists which is the longest established union of journalists in this country has awarded Wolf the Journalist of the Year Award  . . . Josh Wolf sold this video tape to three of our local television stations for $500 each, i.e. he was not just a spectator but an independent journalist. (he has been doing this for a while)”

Molica, who recently wrote a lengthy and impassioned chronology of Wolf’s case, also pointed me to a report by ABC TV  newsman Dan Noyes. That ABC news story says:

“the U.S. Attorney took (the case) to the grand jury. The justification? A federal statute against the arson or attempted arson of a vehicle from an organization that receives federal funding. . . .  But there were no flames — no remnants of a Molotov cocktail — just fireworks. Wolf’s video shows one in the street, and officers wrote in their reports that a protestor tried to shoot a bottle rocket at them. The damage report on the squad car in question — number 1139 — mentions no burn damage, only a broken tail light.”

Molica argues that federal prosecutors concocted the tail light issue to get jurisdiction and says California’s shield would have recognized Wolf as a journalist and would have prevented his tapes from being subpoened by state authorities — had they wanted them at all, which he says they did not. Molica concludes that a federal shield law is necessary and ends his blog entry with this pitch:

“What can you do to help? . . . Write a letter or email to your local representatives no matter where you are, urging them to make a federal shield law a priority in this legislative session. There are federal shield bills in both the House and Senate pending but our legislators must know that we want these issues to be taken seriously.”

I have my own thoughts on shield laws and will share them at a later date. For now just let me agree with Molica when he writes of the Wolf case:

“If you put the puzzle together it will become the most preposterous travesty of justice that you have ever seen.”

(Josh Wolf is a freelance journalist and anarchist. He has been jailed for refusing to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; here is a bit more from Wikipedia. On Friday, December 1, 2006, I ran a reminder of his incarceration. I will write about his case every Friday until he is freed. Visit his site and find a way to help. Tom Abate, San Leandro, Ca; aka MiniMediaGuy).

There is a saying that goes: when the law is on your side argue the law; when the facts are on your side argue the facts; when you have neither pound the table.

Last week I published a guest blog from my brother the lawyer who argued the law. Josh Wolf is in the slammer, he wrote, because several judges have upheld a federal prosecutor’s demand that he turn over out takes of a street protest he had videotaped. Those judges hailed from the liberal Ninth Circuit which, he noted with a certain wit, “leans so far to the left it might as well lay down.” He taunted Wolf’s progressive supporters – who may wonder how a street protest in San Francisco has turned into a federal case — by telling them that the precedent for federal intrusion into local affairs stems from some case decided by liberal judges in the past.

“And that’s where we are today,” my brother writes as if conservatives, who’ve spent decades advocating judicial restraint, now feel no obligation to practice what they have preached. 

As for why liberal judges have condoned this federal fishing expedition, let me suggest that, having leaned so far to the left as to lay down, they have fallen asleep on the job — exercising the constitutional oversight needed to prevent zealous prosecutors from turning into bullies.

Let’s look at some facts.

I’ve yammered on in the past about how I think Josh is being jailed because the feds want him to inform on his buddies who are anarchists; about how what has been done to him could be done to any American; and yaddy-yaddy-ya.

But rather than take my word, let’s listen to Luke Macaulay, spokesperson for the U.S Attorney’s office for the Northern District of California. When his office was invited to appear on the Democracy Now radio show to discuss the Wolf case, prosecutors declined and sent the following statement, which host Amy Goodman posted on her site:

“We have an obligation to the community to investigate and gather evidence of serious crimes. The incident is under investigation so that the grand jury can determine what, if any, crimes were committed. As our court filings state, Wolf videotaped a public demonstration where there may have been an attempt to set a police car ablaze, and where a San Francisco Police Officer’s skull was fractured when he was hit from behind by a demonstrator. Six separate judges – one federal Magistrate Judge, two federal District Court Judges, and a panel of three 9th Circuit Judges – have now ruled that this office has issued a lawful subpoena for legitimate investigative purposes, and that the material and testimony in question should be provided to the grand jury.”  

Let’s review a couple of points in the prosecutor’s statement. They want Wolf’s outtakes “so that the grand jury can determine what, if any, crimes were committed.” (emphasis added) That tells me federal officials aren’t sure that any crimes have occurred. But somehow it’s OK to incarcerate an American citizen, indefinitely, to find out if they can bear witness to any potential misdeeds that might have occurred.

Being federal cops, they can only investigate federal crimes. So the next assertion by prosecutors is even more revealing: “Wolf videotaped a public demonstration where there may have been an attempt to set a police car ablaze.” (emphasis added)

That is important because federal involvement in this case turns on that police car. It belongs to San Francisco — drat, no federal standing there — but it was purchased using federal funds. So anything that may have happened to that city-owned car becomes a federal case.

FYI, Wolf has asked the trial judge to view his tapes and insists that he took no video of whatever may have happened to that car. The judge has declined to do so.

So here are the facts as revealed by the federal statement: prosecutors aren’t sure the police car was damaged. But on the chance that a federally-funded asset may have been damaged, and that a videotope taken by an American citizen might have a bearing on this matter, “six separate judges” have thus far held that Josh Wolf can be held in contempt of court, and jailed as a recalcitrant witness, until and unless he turns over material that might help establish whether or not a federal crime has even occurred.

On this slender reed of prosecutorial necessity an American citizen has been jailed for 186 days.

And now I must bang the table a bit because the only way I can explain the incarceration of Josh Wolf is to believe that America has forgotten the meaning of liberty. Ever since 9/11 we have become a nation of bleating sheep, so frightened by potential dangers so as to willingly surrender time-honored principles, like habeas corpus, upon which our nation was built.

One could argue that extraordinary means must be employed to combat international terrorism. But Josh Wolf is not alleged to have videotaped Osama bin Laden flipping the bird in San Francisco. Yet until he either proves himself useful or useless to federal prosecutors, he can be held.

It is said that Justice is blind. In the case of Josh Wolf she must be blinded by tears. 

(Josh Wolf is a freelance journalist and anarchist. He has been jailed for refusing to turn over videotapes of a protest being investigated by a federal grand jury. Online Journalism Review has written about his case; here is a bit more from Wikipedia. On Friday, December 1, 2006, I ran a reminder of his incarceration. I will write about his case every Friday until he is freed. Visit his site and find a way to help. Tom Abate, San Leandro, Ca; aka MiniMediaGuy).

One of my brothers, New Jersey attorney James Abate, reads this blog on occasion and has opposed this campaign, arguing in part that Josh Wolf is not a journalist. So last week I offered to concede that point if the feds would just let him go. Alas, the U.S. Attorney in San Francisco did not take the deal. But my ploy did elicit the following guest blog from my brother the attorney. Please read James Abate’s argument below; I will respond next Friday.

* * *

Sorry, my MiniMedia Brother, but no deal! I’m going to explain why Wolf is being treated fairly and as a special bonus, at the end I will explain why he has his progressive friends to thank for being targeted in the first place. I promise, its not what you think.

I am very much a supporter of journalists and First Amendment rights and as an attorney believe whole-heartedly that there is a place for challenging an application of governmental authority and seeking judicial redress. While I think Josh has a very weak legal argument, I respected his challenge to the subpoena and seeking judicial review. But that’s where this became low hanging fruit to me. 

Josh Wolf has had his due process and not only been heard by U.S. District Judge William Alsup, a Clinton appointee with a civil rights pedigree, but by the Ninth Circuit Court of Appeals, which leans so far to the left it might as well lay down. The bottom line is no matter what the Courts say, Josh Wolf has made it clear he is going to unjustifiably defy them.

There’s a long history in this country of citizens challenging the law, from Marbury v. Madison to Bush v. Gore. But they all understood that while you have the right to be heard and in many cases a right to an appeal, at the end of the day, when the courts issue their ruling you swallow your medicine if it goes against you.  If citizens simply decided that they are going to ignore the courts, then we would have anarchy.  But then, that’s Josh Wolf’s stated goal, isn’t it?