Cable News Network asked the Supreme Court yesterday to lift an order barring it from airing tapes of conversations between deposed Panamanian leader Manuel Antonio Noriega and his defense team, saying it had been "gagged for being the messenger" of news about potential government misconduct.
In a bizarre twist later in the day, the FBI said its agents had obtained tapes, apparently from security personnel at an Atlanta hotel owned by Turner Broadcasting System (TBS), CNN's parent company, and were trying to determine whether they are the tapes at issue.
Sources familiar with yesterday's events in Atlanta said FBI agents investigating the tapes case went to the Atlanta Omni Hotel seeking an interview with a CNN reporter but found the reporter was not there. The Omni is part of a hotel-office complex that includes CNN headquarters.
The agents, who told hotel security officials that they were seeking "stolen government property," were advised that a box of material and clothing from a hotel room had been in lost-and-found and asked if the agents were interested, the sources said. The box was about the size of one for copier-machine paper and contained tapes and documents believed to be transcripts of the tapes, sources said.
CNN officials gave this account:
The box and clothing belonged to Marlene Fernandez, a CNN reporter staying at the Omni who broke the tapes story last week. She returned to her room late Wednesday and found clothes missing, then told network officials yesterday that the box of tapes also was missing. Hotel officials said Fernandez had checked out, but CNN said she had not.
A CNN lawyer went to the Omni yesterday to ask about the missing material and arrived as FBI agents were procuring the box.
In Washington, FBI spokesman Scott Nelson confirmed that authorities obtained some CNN tapes without a subpoena. "We were made aware of the tapes and merely picked them up for analysis," he said.
CNN President Tom Johnson said he protested the FBI's action "in the strongest terms" to agency officials in Washington.
Steve Korn, vice president and general counsel for TBS, said he asked the U.S. attorney in Atlanta for return of the tapes, and he would not comment on whether CNN has duplicates of the material.
Last night in its own report of the story, CNN said the FBI had seized a box of documents belonging to the network.
At the Supreme Court, lawyers for CNN asked Justice Anthony M. Kennedy, who is responsible for reviewing emergency requests from the 11th U.S. Circuit Court of Appeals, to allow the broadcast or grant an emergency hearing in the case. The network is seeking to overturn the prior restraint imposed by the judge hearing drug charges against Noriega and upheld by the 11th Circuit.
Kennedy referred the request to the full court and ordered Noriega's lawyers and Justice Department attorneys to respond to the CNN papers by noon Saturday. Noriega's lawyers sought the prior restraint after the network told them that it had seven tapes of Noriega's telephone conversations from his Miami jail, parts of which involve conversations between Noriega and members of his defense team.
The Justice Department, whose views are often influential with the court, initially took no position on the order but told the appeals court that it supported the order to have CNN turn over the tapes to the trial judge "for the purpose of a prompt determination as to whether the tapes contain privileged material and whether the material is such that the publication of the tapes would likely result in significant prejudice to the court's ability to conduct a fair trial before an unbiased jury."
In court papers filed yesterday, lawyers for CNN called the appeals court action "an unprecedented and extraordinary departure from 59 years of prior restraint jurisprudence" dating to Near v. Minnesota in 1931, when the court found unconstitutional a law prohibiting publication of an anti-Semitic newspaper. The court said in that case that prior restraints were allowed only in "exceptional cases" such as keeping secret the sailing dates of troop ships during wartime.
The network said any intrusion on Noriega's right to effective assistance of counsel or interference with the attorney-client privilege resulted from "the government's interception of conversations, not CNN's actions in telecasting information about possible government misconduct."
The government has denied improper eavesdropping and said Noriega was warned that calls would be monitored unless he told prison guards that they involved privileged communications. Even if Noriega could show "a legitimate threat to the secrecy of his trial strategy," CNN said, there are other alternatives to protect his rights.
"If Oliver North, John DeLorean and the Watergate defendants can obtain fair trials in the face of massive nationwide publicity, so too can Noriega," CNN said. "Gagging CNN will neither cure nor avoid any breach by the prosecution. It will serve only to punish a news medium which has faithfully executed its constitutional role by reporting on criminal proceedings and allegations of unlawful governmental action."