Air Force May Revise Subpoena Policy

After several recent cases in which reporters' notes have been subpoenaed for court-martial proceedings, the Air Force is considering revisions to its legal regulations that would discourage uniformed lawyers from serving subpoenas on journalists.

The possible changes are outlined in a memo from the Air Force's acting judge advocate general, Maj. Gen. Jack Rives. The memo, The Denver Post reported yesterday, "asked uniformed lawyers to consult with 'experienced counsel at their higher headquarters' and to talk to managers at media outlets before serving a subpoena." It also suggested that Air Force attorneys "strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement."

According the Post, "Such memos lay out guidelines in legal matters and often are the first step in a policy initiative. A Pentagon spokesman said the matter is under study."

The new guidelines come after a January meeting between Rives and several members of the Dart Society, the organization of Dart Ochberg Fellows and winners of the Dart Award.

The Dart Society members discussed how difficult it can be for victims of violence to tell their stories to reporters. They noted that victims might be reluctant to come forward in the future if they know that a reporter's notes might be used in court.

"Major General Jack Rives is leading the Air Force JAG Office and Military Justice in a positive direction, respecting the freedom of the press and the dignity of victims of violence who confide in members of the media,'' said Frank Ochberg, founder of the Dart Society and Chair Emeritus of the Dart Center executive committee. "I am pleased that members of the Dart Society were given a full and fair hearing by General Rives and his colleagues.''

Several Dart Society members had been served with Air Force subpoenas in recent months for cases involving victims of rape.

In November 2004, Denver Post reporter Miles Moffeit (a 2004 Ochberg Fellow) was served with a subpoena in connection with the case of an 18-year-old woman who had said she was gang-raped by four fellow airmen at Sheppard Air Force Base in Texas in June 2003. The subpoena was dropped when the alleged victim decided not to proceed with the case (see Dart Center story here).

In December, the Air Force served a new batch of subpoenas on reporters in connection with another rape case, this one involving two cadets at the Air Force Academy in Colorado Springs, Colo. Among the journalists served were Moffeit, Denver Post reporter Amy Herdy (also a 2004 Fellow), and freelance reporter Dave Cullen (a 2002 Fellow). The subpoenas require that the reporters turn over all notes and unpublished material relating to the cases. Both Moffeit and Herdy have published stories relying on interviews with the alleged victim. Cullen, however, has written stories (for Slate and Salon) about Air Force Academy sexual assaults, but not about the case in question.

Rives' guidelines, and any official policy changes that follow them, could discourage similar subpoenas in the future, much as the U.S. Justice Department's guidelines for obtaining a subpoena against reporters have discouraged subpoenas in federal court cases.