Bob Egelko / SF Chronicle – 2006-12-21 00:43:46

http://sfgate.com/cgi-bin/article.cgi?f=/c/a/2006/12/18/BAGI7N1F811.DTL

OAKLAND, Ca. (December 18, 2006) — Army prosecutors have sent subpoenas to journalists in Oakland and Honolulu demanding testimony about quotes they attributed to an officer who faces a court-martial after denouncing the war in Iraq and refusing to deploy with his unit.

The Army’s subpoenas, which the journalists said they received last week, put them in the uncomfortable position of being ordered to help the Army build its case against 1st Lt. Ehren Watada, who faces up to six years in prison if convicted.

“It’s not a reporter’s job to participate in the prosecution of her own sources,” said Sarah Olson, an Oakland freelance journalist and radio producer. “When you force a journalist to participate, you run the risk of turning the journalist into an investigative tool of the state.”

But Olson, who received her subpoena Thursday, acknowledged she has no legal grounds to refuse to testify, since she is being asked only to confirm the accuracy of what she wrote about Watada and not to disclose confidential sources or unpublished material.

Normally, she said, “no one, myself included, has any problem verifying the veracity of their reporting.” The ethical problem in this case, she said, is that she would be aiding the prosecution of one of the dissidents and war critics who regularly trust her to tell their stories to the public.

Watada, 28, faces a court-martial in February at Fort Lewis, Wash., where he is based. He is charged with missing a troop movement — because he refused to deploy — and with conduct unbecoming an officer for his quotes in articles in June on the Web site truthout.org and in the Honolulu Star-Bulletin. In the news reports, Watada criticized President Bush and the Iraq war.

Watada’s lawyer, Eric Seitz, said he understands journalists’ unhappiness at having to appear in court but would not object if they complied.

“It doesn’t bother us or disturb us that reporters testify Lt. Watada made those comments,” he said. The main issue, Seitz said, is “whether he had First Amendment rights to say what he did.”

Both Olson and her lawyer, David Greene, declined to say whether she would comply with the subpoena, which requires her to take part in a hearing in January as well as the court-martial. She could be held in contempt of the military tribunal and jailed if she refuses.

The second journalist, Gregg Kakesako, who covers military affairs for the Honolulu Star-Bulletin, confirmed Friday that he had been subpoenaed to testify at Watada’s court-martial but declined further comment.

Other journalists may be summoned to testify. Joseph Piek, spokesman for the Army base at Fort Lewis, said he didn’t know how many subpoenas had been issued.

“The Army would like to verify with the reporters that the story or stories that they have written are accurate representations of the interview that they had with Lt. Watada or what was said at his public appearances,” Piek said.

The subpoenas come at a time of increasing efforts by the Bush administration to pressure reporters to testify about their sources and newsgathering.

In a case that raises different issues, two Chronicle reporters, Mark Fainaru-Wada and Lance Williams, are appealing prison sentences of up to 18 months for refusing to reveal their sources of closed-door grand jury testimony by Barry Bonds and other athletes about drug use. And Josh Wolf, a San Francisco freelance journalist, has spent nearly four months in prison for refusing to surrender outtakes of videos he took at a violent protest last year.

The Bush administration has also criticized the news media for publishing stories based on high-level leaks and has hinted at the possibility of charging journalists with espionage for printing classified information.

There is nothing secret about the statements that led to Watada’s court-martial and the subpoenas to the journalists.
Watada, raised in Honolulu, joined the Army in 2003 after graduating from college and was first stationed in South Korea. In public appearances and interviews, he has said he was motivated to enlist by the Sept. 11 terrorist attacks but had misgivings about the Iraq war from the start and eventually concluded that it was both immoral and illegal.

“As I read about the level of deception the Bush administration used to initiate and process this war, I was shocked,” Olson quoted him as saying in one of the statements cited by the Army as conduct unbecoming an officer. “I became ashamed of wearing the uniform. How can we wear something with such a time-honored tradition, knowing we waged war based on a misrepresentation and lies?”

The interview, conducted in May, was published on truthout.org on June 7, the same day Watada declined to go to Iraq with his armored vehicle unit in the 2nd Infantry Division. He said he offered to redeploy to Afghanistan or resign his commission but was turned down.

He was the first commissioned officer to refuse publicly to take part in the war and is the first to face a court-martial on that charge.

Before sending subpoenas to the journalists who reported Watada’s comments, the Army asked them to verify their quotes voluntarily, but they refused. Olson said last week that free expression is endangered by both the Army’s case against Watada and its attempt to enlist journalists.

“If conscientious objectors know that they can be prosecuted for speaking to the press and that the press will participate in their prosecution, it stands to reason that they would think twice before being public about their positions,” she said. “What we need in this country now is more dialogue and not less.”

Posted in accordance with Title 17, US Code, for noncommercial, educational purposes.