Air Force Revises Subpoena Rules

U.S. Air Force officials have revamped their subpoena practices to extend greater protections to journalists, according to newly released regulations.

U.S. Air Force officials have revamped their subpoena practices to extend greater protections to journalists, according to newly released regulations.

The changes, following a 2005 meeting between top Air Force attorneys and members of The Dart Society, are modeled after guidelines adopted decades ago by the U.S. Attorney General for use in federal civilian cases.


``Air Force policy requires the exercise of due care when issuing subpoenas to media organizations to avoid unnecessary imposition on the news gathering process and thereby protect the media's First Amendment role,’’ the provision’s preamble states.

The policy characterizes media subpoenas as a last resort in criminal cases. It instructs Air Force authorities at installations across the country to consult with chief attorneys before issuing subpoenas. It also requires them to exhaust ``alternative’’ investigative steps and to hold discussions with media representatives before pursuing legal action.

In 2005, the Dart Society met with the Air Force’s chief attorney, Maj. Gen. Jack Rives, and his staff to discuss concerns about a series of subpoenas issued to journalists, including a Denver Post reporter and Society member investigating the Air Force’s handling of rape cases.

The Air Force sought reporters' notes and unpublished material – specifically notes from interviews with victims. The Dart Society argued that attempting to obtain such information through subpoenas could stop victims and other sources from coming forward in other cases.    

During the meeting, Rives pledged support for attempting to balance First Amendment protections with the work of Air Force investigators. And shortly afterward, he released a memo asking uniformed lawyers to consult with ``experienced counsel at their higher headquarters’’ in addition to other steps. In December 2007, the process was formalized.

Dart Society President Scott North praised the military for the revisions.


``Our military is there to defend the freedoms we enjoy,’’ North said.

``Gen. Rives and others in the Air Force have demonstrated how seriously they take that duty, clarifying their own rules to better protect First Amendment rights. It is humbling to see their commitment in action.’’

The Dart Society is a coalition of professional journalists who regularly cover trauma and promote ethical standards for dealing with victims.


The complete text of the new policy follows:


6.4.7. Subpoenas to the Media. Air Force policy requires the exercise of due care when issuing subpoenas to media organizations to avoid unnecessary imposition on the news gathering process and thereby protect the media's First Amendment role.


6.4.7.1. Prior to issuing a subpoena to a member of the news media, trial counsel will consult with the Special Court-Martial Convening Authority (SPCMCA) staff judge advocate (SJA). The SPCMCA SJA will forward a request to the General Court-Martial Convening Authority (GCMCA) SJA addressing the following points:


6.4.7.1.1. That all reasonable attempts were made to obtain the information sought from alternative sources;


6.4.7.1.2. That all reasonable alternative investigative steps were taken to obtain the information sought;


6.4.7.1.3. The results of negotiations with the media. Negotiations should make clear the government’s needs in the particular case and its willingness to respond to particular concerns of the media;


6.4.7.1.4. That reasonable grounds exist to conclude, based on information obtained from other sources, that a crime has occurred and that the information sought is essential to the case; and,


6.4.7.1.5. That to the extent possible, the subpoena is directed at material information regarding a limited subject matter, will cover a reasonably limited period of time, and will avoid requiring production of a large volume of unpublished material.


6.4.7.2. The GCMCA SJA will approve or disapprove the issuance of the subpoena. The SPCMCA SJA will immediately file a Special Interest Report (SIR) IAW paragraph 13.8 of this instruction.


6.4.7.3. In the event exigent circumstances prevent prior consultation with the GCMCA SJA, a trial counsel may only issue a subpoena with the SPCMCA SJA’s approval. In that case, the SJA will immediately inform the GCMCA SJA, MAJCOM SJA, and AFLOA/JAJM by e-mail or fax of the issuance of the subpoena and the exigent circumstances that precluded prior consultation.


6.4.7.4. The principles set forth in this guidance are not intended to create or recognize any legally enforceable right in any person.