By Amy Goodman, Democracy Now!. Posted February 16, 2007.
Imprisoned reporter Josh Wolf and his attorney explain why his jailing for refusal to release video footage is an attack on journalism itself.
Josh Wolf, 24, has spent almost six months in jail, more time than any journalist in U.S. history, for protecting his sources. He was jailed on Aug. 1 of last year when he refused to turn over video that he had shot of an anti-G8 demonstration in San Francisco to a federal grand jury.
Wolf had sold some of the footage to the nightly news as well as posted some on his website. The news broadcast attracted the attention of local and federal law enforcement agents who were investigating clashes between the police and demonstrators at the protest. They later served Wolf a federal subpoena requiring him to turn over his unpublished video footage as well as testify about the protesters seen on the tape. When Wolf refused to comply, he was charged with contempt of court and incarcerated.
Wolf's imprisonment has prompted outcries by advocates for freedom of the press who say it is out of proportion to the scale of the investigation. Lucie Morrillon of Reporters without Borders has stated, ''This is one more example of the increasing attacks on confidentiality of sources in the United States, one more blow to investigative journalism and, eventually, to the right for American people to be informed. This is a bad signal sent to the rest of the world.''
On Friday we spoke with Josh Wolf from his jail cell in Dublin, Calif. I began by asking him why he was in prison.
We asked a spokesman for the U.S Attorney's office to join us on the program today. He declined our invitation, but Luke Macaulay, spokesperson for the U.S Attorney's office for the Northern District of California sent a statement. It reads: "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 Ninth 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."
Martin Garbus is Josh Wolf's attorney. Time magazine calls him "one of the best trial lawyers in the country," while the National Law Journal has named him one of the country's top ten litigators. He joins me in the studio today.
Amy Goodman: On Friday, we spoke with Josh Wolf from his jail cell in Dublin, Calif. I began by asking him why he's in prison.
Josh Wolf: I'm here for refusing to comply with a subpoena demanding that I both testify and turn over a tape of a protest that occurred on July 8, 2005.
AG: Why are you refusing to comply?
JW: 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.
AG: U.S. Attorney Kevin Ryan's office says they're investigating whether protesters tried to torch a police car. Ryan's spokesperson, Luke Macauley, said the grand jury needs the video to "determine what, if any, crimes were committed." Your response?
JW: Well, my response is that we've offered to turn the video over to the judge to review in camera to determine whether or not there is any evidence on the tape. The U.S. Attorney's office has said that that would not be appropriate, because there's certain information that only the grand jury is privy to. I don't understand why the grand jury information can't be then passed on to the judge, who can balance all these factors and determine whether or not there is any evidence on the tape, which I contend to this day there isn't, because all newsworthy material on the video was put out online the night of the incident, because I had no idea this was going to all bubble up when I was shooting the video that night and editing it down later on.
AG: Explain what happened that day in 2005. What was the protest you were covering?
JW: The protest was against the G8 summit, which was going on in Gleneagles, Scotland, at the time. It started in the Mission -- it was actually completely in the Mission District of San Francisco. There was probably about 100 people, mostly anarchists. It was facilitated by a group called Anarchist Action, and they proceeded to walk through the streets. There was some minor property damage, some spray-painting, that sort of thing, dragging newspaper stands into the streets. At some point in time, the police -- kind of the tactical police squad backed off, and the main police didn't seem to be around. At that point, a lone squad car that was just patrolling the neighborhood proceeded to accelerate into the crowd. This is what set off the issues that have since become so explosive, because shortly after the car rammed into the crowd, they took off and tackled two individuals.
I happened to be witnessing and filming one, who was being choked, and you could see it on my videotape. The other individual, the other cop that took off, I don't really know what happened, because I was following the one. The cop that I wasn't filming was apparently struck in the head during some sort of an altercation, and at some point, allegedly by the U.S. Attorney, someone threw some sort of a firework, four days after the Fourth of July, in the vicinity of the cop car, although when I walked past the cop car I certainly didn't see any flames protruding, and the damage report shows that there wasn't really any damage to the cop car beyond a broken taillight.
AG: Why aren't you protected by California Shield Law, which protects journalists?
JW: I am protected by the California Shield Law. This isn't in California state court, though. This is in federal court. And the federal government does not acknowledge any sort of federal protections for journalists.
AG: How did this end up in federal court?
JW: The government contends that there is a statute that says that because the San Francisco Police Department gets money from the government for training against terrorism and other stuff like that, that any property belonging to the San Francisco Police Department is of federal interest, and therefore, this is a federal offense that they're investigating. But clearly this seems like an attempt to sort of circumvent the protections that California feels are due to journalists in order to prevent the situation that I'm currently dealing with at this moment.
AG: Josh, what has been the response of the journalistic community in this country to your incarceration?
JW: It's difficult for me to gauge what the journalistic response is. I obviously don't have Internet access or anything like that in here. I do get the newspaper, and the San Francisco Chronicle's covered this story quite well. I've been told that it's been a sort of lackluster response. I'm not entirely sure why that is. But it seems to me that part of it may be that the existing news media doesn't want to acknowledge that independent journalists who don't rely on television stations or large-scale newspapers or anything like that really are an additional form of journalism that's part of the media today.
AG: You were named, however, the Northern California 2006 journalist of the year by an establishment journalistic organization, the Society of Professional Journalists.
JW: That's correct, and I've also been told that on Tuesday I was awarded the James Madison Award by the same group for online journalism.
AG: The protests that you were covering, what do you think the government is trying to find out about the protesters?
JW: I think that their intent is two-fold, or even more than that. One thing that they're trying to do is they're trying to basically move toward state-sanctioned journalism. They're trying to say that I'm not a journalist, and even if I was, that journalists aren't protected, in order to basically force journalists to act as agents for the state. Beyond that, they're also trying to identify civil dissidents and form databases. The ACLU has uncovered numerous instances of the government trying to capture identities of people who are protesting against the government. Dissent may be patriotic, but this current administration doesn't think so, and they're doing everything to criminalize it, or at least intimidate those that are engaged in it to the point that they feel that it is not safe to continue expressing their beliefs.
AG: You have used the term "anarchist witch hunt" in your blog. What do you mean?
JW: Well, the grand jury itself is a very strange segment of the government, in that there's no attorneys, there's no judges. It's just the U.S. Attorney and the grand jury, and it's my belief that what they want to do is they want to call me, have me identify the people in the video. Then any people that I'm able to identify would in turn be called in. Those people would then be forced to either go to jail for contempt or name the people in the video that they saw. Then those people would follow the same procedure like so forth and like so forth until they had a database of everyone that was there that night. We've seen similar things happen in regards to the ELF, the Environmental Liberation Front, as well as the ALF, the Animal Liberation Front, in several Bay Area grand juries that have resulted in grand jury resisters and other people that have chosen not to resist and told what's going on.
AG: In a January 29th court filing, federal prosecutors said that it's in your "imagination" that you're a journalist.
AG: Your response?
JW: I think it's a very scary idea that the U.S. 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?
AG: You have spent the most amount of time in jail for protecting your sources than any journalist in history, almost six months. What has your time been like in prison?
JW: Yeah, it's getting very close to six months. I've probably read about 60 books. I've written some 300-400 letters in response to things that have come in to me. I've written hundreds of pages in my journal, wrote numerous blog entries, played a lot of dominoes, exercised, ate and slept, and that's basically all that one can do inside of a prison environment. I've socialized with the inmates, gotten a better understanding of the justice system, made some good friends and acquaintances.
AG: Who is imprisoned along with you?
JW: Well, for one thing, Greg Anderson, who's also in contempt for -- regarding the BALCO case. He's there.
AG: Explain who Greg Anderson is.
JW: Greg Anderson is Barry Bonds's trainer, who has refused to testify in the grand jury that's investigating whether or not Barry Bonds lied under oath in the grand jury. So he's there in the unit. There's a number of drug dealers, felons with guns, illegal immigrants -- that's one of the most frightening things is, a lot of the people there have done nothing more than cross an imaginary line, and that's their crime, and they're often given three, four, five years before being deported, which is just unbelievable.
AG: Have you been able to interview them?
JW: I've spoken to them at length. I recently wrote something about my understanding of their situation, which I believe is on my blog right now.
AG: And how is your -- how are the guards, how is the prison treating you?
JW: With a level of professionality that I did not expect, not just in terms of myself, who is clearly here for a different sort of situation than other people, but also in terms of just all of the prisoners that are here. I was kind of quite surprised that there is this, you know, professional courtesy given towards the inmates, but I've been told that that's one of the major differences between the federal and state systems of incarceration.
AG: Why did you go to the protest that day in July of 2005?
JW: To document a demonstration that the news media was almost certainly likely to ignore.
AG: At this point, after being imprisoned for almost six months, are you sorry you went?
JW: I'm not sorry at all I went. Had I known that the FBI was going to subpoena my footage in this way, and given the fact that I knew there was nothing on it, it may have been a smarter practice from henceforth to take all of my material and put it online and say, complete video, edited video, and then there would have been no need to subpoena the footage. That may be a best practice. Perhaps a better practice is, once I finish editing a video, to destroy the master footage.
AG: What kind of effect has your imprisonment had on your family?
JW: It's been very frustrating for my mother. Clearly she, you know, doesn't want her son to be in jail, especially for six months now. There's been some difficulties with the home situation, in that, you know, here I am not able to pay my rent, having to rely on other people to take care of that. That sort of situation is quite stressful. But everyone's very supportive. Both my mother and father have been behind me 110 percent. And they know that I'm doing the right thing and have my back for it.
AG: Josh, I know we don't have much more time in this conversation, which is limited to 15 minutes, but I was just looking at your blog and the poem you wrote, "The Alarm Clock." Do you remember it off the top of your head?
JW: I don't remember it off the top of my head.
AG: Well, your last lines, "I am an alarm clock/And I am sounding the alarm/Like Paul Revere did years ago/I'm riding down the lane/Screaming/'Wake up!'" Do you think your imprisonment is having that effect?
JW: I'd like to think it's having that effect, but my fear is that instead of having the effect of making people wake up and realize that we need to do something about the impending police state that we're living in that will send a journalist to jail for six months, who was accused of doing nothing wrong, that instead of causing people to stand up, that it's scaring people into not speaking out at all, and that's a very frightening concept that reminds me of what happened during World War II or the lead-up to World War II in Germany, in that all these people saw what was coming their way and could have decided to react, to resist, but were too afraid. And I'm worried that America is too afraid, and even though maybe my situation has helped them realize what's coming down the pike, that instead of jolting them out of bed, it's just lulled them deeper into sleep and helped them pull the covers over their head in the hopes that maybe, just maybe, if they don't see it, it will all go away.
AG: How much longer will you be jailed?
JW: I'll be jailed until the judge, William Alsup, decides to say, "He's not going to give in. We have to let him go."
AG: Could it be indefinitely that you're held?
JW: It's not likely to be indefinitely. Civil contempt lasts the length of the grand jury, with a maximum of eighteen months, and the grand jury expires in July, but then can be extended for six more months. So the longest that I would be likely to be here would be about 18 months total. About a year from now is when I'd be, worse case, likely to be released. But then, of course, there is also the possibility that they'll bring criminal contempt charges against me, and there really are no limitations to the penalties for criminal contempt. And theoretically, God forbid, I could face life imprisonment, but I don't really see that happening. I certainly am optimistic that that won't happen.
AG: Are you afraid?
JW: At this point, the whole thing's become so bizarre that there is some fear that they are going to go that far. But I have hope that basically that a jury wouldn't convict me of criminal contempt after having been through this and that a judge wouldn't decide to take such a ridiculous course of action.
AG: Do you plan to continue to be a journalist once you are freed?
JW: Absolutely. This has just made me more determined to get the stories that are not being covered out than ever before, because someone needs to cover this. There's a lot of people that are, but we need more. Every single person that can stand up and document injustices they see around them is one more person that will help lead towards an understanding and enlightenment of our society about what's really going on.
AG: If people want to reach you, where can they write? Can they email you? Can they write you letters?
JW: If they visit my website at joshwolf.net, there's my blog that they can read about what's going on, there's a resource page that explains the situation a little better. And at the bottom, it says, "Mail me." Right there is my address. And if you don't want to send snail mail, you can just click the email button and send an email to freejosh(at)joshwolf.net, and those will get printed and sent to me. But please do include your snail mail address, because I can't email you back.
AG: And would you recommend to young journalists -- of course, you're one yourself -- you're how old?
JW: I'm 24 years old.
AG: Twenty-four years old. Would you recommend to other young people to go into journalism?
JW: Absolutely. This has demonstrated that there are risks that we don't imagine, in terms of the dangers of journalism. More experienced journalists are aware of those risks, especially covering other countries, but the stories need to be told, and the mainstream media is letting the ball slip, so we need to basically form a sort of compendium of journalists, compendium of activists who will document the world they see, get those stories out, work to get those stories picked up by the mainstream media so that they can't be ignored anymore, so that the people demand to know what's going on. And then, once that happens, maybe we'll start to see some change in the mainstream journalistic front, and then from there, we'll start to see a change in the way that our government is being perpetuated.
AG: When we interviewed you for the brief respite that you got out of jail in September, live in studio at the Link TV studios in San Francisco, we also talked to the San Francisco Chronicle reporter -- two reporters there also face imprisonment for not revealing sources in exposing the steroid Barry Bonds case, what you were talking about, but they have not gone to jail. What's the difference?
JW: The legal difference is not much. It clearly shows how the government's deciding to deal with corporate media versus an independent journalist, is that they've said, well, we're not going to make you go to jail until the Ninth District rules one way or the other, and then the Ninth District's hearings have been pushed back and pushed back and pushed back. Mine, on the other hand -- I was escorted into custody from the courtroom the day I was ruled in contempt. The Ninth Circuit ruled, while I was in custody -- or actually the Ninth Circuit spent a month waiting to determine whether or not to grant me bail -- granted me bail, passed it on to the next panel. That panel ruled, and then immediately they said I needed to go back into custody while we still had another level of Ninth Circuit appeals pending. So it's definitely a divergence between how the government's handled my situation as an independent journalist and how they've dealt with the corporate media, who has also been found in civil contempt.
AG: U.S. Attorney spokesperson Macauley said six separate judges or panels have now ruled unequivocally that "we've lawfully issued a subpoena for legitimate investigative purposes and that the material in question should be furnished to the grand jury." What kind of faith does this give you in the system?
JW: Unfortunately, Amy, I don't really understand that question. I've been told I need to wrap the conversation up, so I probably am going to have to let that question go unanswered.
AG: Well, thanks very much, Josh, for joining us. Last words to the listening and viewing audience in this country, the United States and around the world.
JW: Look around you. If they're sending me to jail for essentially no charges, what's next? We need to wake up. We need to come to terms with the government we have right now and demand a change, demand a free media that's not encumbered by interference, that doesn't force journalists to act as agents of the state, that truly is free, both in terms of corporate control and government control, and hopefully if we demand it, we'll have it.
AG: Imprisoned journalist Josh Wolf speaking from his jail cell at the federal correctional institution, Dublin, Calif. He spoke to us on Friday afternoon.
We asked a spokesperson for the U.S. Attorney's office to join us on the program today. He declined our invitation, but Luke Macauley, the spokesperson for the U.S. Attorney's office for the Northern District of California, did send a statement. It reads, "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 Ninth 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." That was the statement from the prosecutor's office.
Martin Garbus is Josh Wolf's attorney. Time magazine calls him one of the best trial lawyers in the country. The National Law Journal and Newsweek cite Martin Garbus as America's most prominent First Amendment attorney, joining us now in the firehouse studio. Welcome to Democracy Now!, Martin Garbus.
Martin Garbus: Thank you.
AG: Your response to that statement?
MG: I think that what he said, namely, that they're investigating what may have been an attempt -- may have been an attempt to set fire to a police car, you don't set up grand juries in order to see whether or not there was a crime or not. You have a grand jury to investigate something that is a crime. I think the significant thing here is that the grand jury subpoena has been issued by the Joint Terrorism Task Force, so I think that you should put the Josh Wolf stuff aside, in a way, namely whatever happened at that particular demonstration, I think it's an attempt to get at people who were critical of the Bush administration. There is no crime -- there is no grand jury sitting right now in the state court. There is no crime being considered in the state court. The whole question of whatever happened to a policeman is a state court problem. You could not issue a subpoena out of the federal court to investigate what is a state court problem. There is no investigation of any kind going on, so far as we know, in the federal court. So there's no reason to hold him, and we have made this argument, and the argument has been rejected.
AG: What do you think is going on?
MG: I think basically it's an attempt by the government -- the Joint Terrorism Task Force is controlled out of Washington. I think it's an attempt, as Josh said, to learn the identity of people who are hostile to this administration. And the people who were at the demonstration, in addition to demonstrating about the subject of the demonstration, also had anti-Bush signs, also had anti-Iraq signs. Now, this subpoena was issued, as we know, early last year. I think that what you see is an attempt by the Bush administration to crack down on its critics.
AG: Now, there is a grand jury impaneled now.
MG: There is no grand jury impaneled in the state court, which relates to the crime about the ...
AG: But in the federal court?
MG: In the federal court, a grand jury is impaneled. So far as I know, it has not taken any evidence for the last four or five months. Now, what we did last time before Judge Alsup is we asked the government to tell us whether or not there was a grand jury taking evidence. The grand jury refused to tell us that. We then made an attempt to get discovery to find out for ourselves if a grand jury was sitting -- a federal grand jury was actually sitting and taking evidence. Judge Alsup denied that. If you represent somebody who's before the grand jury, you have very, very limited rights. The normal things that go on in a lawsuit, discovery or getting information from the government itself, you can't get.
AG: So, right now, is it possible -- or how long do you foresee Josh Wolf being held? Now, it's almost been six months.
MG: I think the high probability is that he'll be held certainly until July, which is supposedly the ending of this grand jury panel. Of course, the judge can extend the grand jury panel for another period of time. We'll be making a motion next month to try and get him out. The law is that once the detention time becomes punishment, then he should be released. In other words, as long as he's being held and there's some possibility that he'll give information, then the judge is right to hold him. But at the point that a judge becomes convinced that holding him any longer will not get any information, the judge is obligated to let him out. Now, this is a subjective approach, and this is a judge who's not terribly sympathetic.
AG: Martin Garbus is a famed First Amendment attorney. We'll come back from our break and talk with him, as well as the producer of a Frontline documentary premiering tomorrow night that deals with journalists and the state.