The Bush administration, in a rare government call for prior restraint, joined lawyers for deposed Panamanian leader Manuel Antonio Noriega yesterday to urge the Supreme Court not to lift an order blocking Cable News Network from airing taped conversations between Noriega and members of his defense team.
In papers filed with the court, Solicitor General Kenneth W. Starr argued that the trial judge hearing criminal charges against Noriega was justified in temporarily blocking CNN from broadcasting the conversations and ordering the network to turn over the tapes to enable him to determine whether they would interfere with Noriega's ability to obtain a fair trial.
The administration acknowledged that a "lasting prior restraint on publication may be justified only in the most extraordinary circumstances." But it said that under the "peculiar circumstances" of the Noriega case -- in which the judge does not know what the tapes contain -- a temporary restraint is allowed "so that the court can make the factual findings necessary to determine whether an injunction is justified."
Yesterday's filings were a response to CNN's petition Thursday seeking to overturn an order from the 11th U.S. Circuit Court of Appeals that prohibits it from broadcasting the tapes of privileged conversations from Noriega's Miami prison.
The government, which took no stand on the case initially, entered on the side of Noriega at the appeals court level. The government lost a celebrated prior restraint case on a national security issue in 1971, when the Supreme Court voted 6 to 3 to allow the New York Times and The Washington Post to publish the Pentagon papers.
This battle over prior restraint started Nov. 7, when CNN revealed it had obtained seven tapes of telephone conversations recorded by federal prison officials. Noriega's lawyers went to court to block the network from airing conversations between Noriega and members of his defense team.
The trial judge ordered the network not to broadcast such privileged communications; CNN then broadcast a small portion of one of the tapes in which Noriega discussed potential witnesses against him with a translator in his lawyer's office. Last Saturday, the appeals court upheld the trial judge's order. CNN appealed to the Supreme Court, where Justice Anthony M. Kennedy ordered the emergency responses filed yesterday and referred the matter to the full court.
How soon the court will act is unclear.
CNN has resisted turning over the tapes and has argued that any harm to Noriega's ability to obtain a fair trial that might be caused by the broadcast could be remedied by such measures as careful questioning of potential jurors.
The network cited the Supreme Court's 1976 decision in Nebraska Press Association v. Stuart, in which the court overturned a prohibition on pretrial publication of a murder defendant's confessions and described prior restraint as "the most serious and the least tolerable infringement" on freedom of the press.
Noriega's lawyers, Frank A. Rubino and Jon May, argued yesterday that the court in Nebraska Press made it clear that it had "consistently rejected the proposition that a prior restraint can never be employed."
They said the network's refusal to allow the trial judge to hear the tapes frustrated the court from making the required determination of whether Noriega's ability to obtain a fair trial would be irreparably harmed by the broadcast.
"The fundamental question presented this court is whether any defendant can receive effective assistance of counsel and a fair trial if each day he and his lawyers face the possibility of their most trusted confidences being revealed to 400 million viewers of Cable News Network," they said. "The answer to that question must be no."
In a friend-of-the-court brief filed on Noriega's behalf, the National Association of Criminal Defense Lawyers contended that allowing the broadcast at this stage would deprive the trial judge "of any meaningful opportunity to weigh the competing interests between the accused, the press, and the public."
In an odd twist Thursday, CNN officials said the FBI improperly impounded confidential CNN material that a CNN reporter working on the tapes case left in her Atlanta hotel room. But Friday those officials said the FBI held little of importance. The FBI has acknowledged receiving items from the Turner Security Agency -- owned by the same organization that owns CNN and the hotel -- but will not describe what it was given.