For those who missed Part I: a dictator suspected of drug-running is brought to the bar of justice after the United States invades his country, at the cost of $2 billion and hundreds of lives. Some Feds want him convicted, but others believe he will blow secrets at his trial, including details of his past relationship with the president of the United States. Left to languish in a Miami jail, Manuel Noriega starts calling his few remaining allies in Panama. The government routinely monitors those conversations as it does nearly all jailhouse phone calls. Copies of those tapes are leaked to Panamanians, and seven end up with CNN. At least one conversation is between Noriega and his counsel; the lawyers go ballistic, arguing that the government has violated Noriega’s attorney-client privilege and may have jeopardized its entire case. While he ponders those pleas, federal Judge William Hoeveler orders CNN to turn over the tapes and not broadcast any involving attorney-client conversations. The network airs part of a tape in violation of the court order. But rather than play everything else it obtained, CNN tries to extend its exclusive by dribbling out just a portion of the conversations.
In Part II, which unfolded last week, the plot takes a weird and farcical twist: reporter Marlene Fernandez is staying at a hotel housed in the same Atlanta complex as CNN headquarters; both are owned by Ted Turner’s company. Instead of protecting their precious materials, the network lets the reporter keep many of her notes and tapes in a box in her hotel room, which she inexplicably vacates for several days without checking out. Turner security guards inexplicably summon FBI agents, who seize the box containing the tapes without a search warrant. In other words, the same company fighting in court to air the tapes now hands some of them over to the government. Why did this happen? “That’s a good question,” says CNN general counsel Steven Korn. And what was in the box? The FBI won’t say, and CNN later claims that the whole thing was overblown and the most valuable item in the box was a bottle of shampoo.
Now come the quick cuts. At the network’s Washington bureau, an FBI agent asks to speak to two staffers involved in reporting on Noriega. He is rebuffed. In Miami, the ax-dictator appears in court to denounce the American legal system. Then his lawyers (who can’t get their hands on any of their client’s frozen millions) warn I that they’ll drop the case rather than accept the $75 an hour that the government pays court-appointed lawyers. By the weekend, the Supreme Court is hearing arguments in what might be a historic press case.
These events set conspiracy theorists working overtime. Were the tape capers the work of masterminds or a comedy of errors? The U.S. government might have been trying to sabotage its own case, but it’s more likely that overzealous investigators sloppily ordered prison officials to hand over all of the tapes, including those with Noriega’s legal team, without realizing their explosive potential. Similarly, CNN might have been trying deliberately to slip the tapes to the government, thereby making moot the legal case it faces. But it’s also possible that Fernandez was simply careless and the Turner security personnel (whose chief was suspended last week) simply goofed by summoning the FBI. (“There was no staging or faking it,” says Ed Turner, executive vice president of CNN.)
The case against CNN turns on the issue of “prior restraint”–ordering the media not to print or air information. For 60 years, the U.S. Supreme Court has wrestled with this issue. It has always carefully held that while there may be exceptional cases in which the press could be theoretically restrained–the movement of troopships in wartime, for instance–in practice, the court has struck down every prior restraint order it has considered. In legal terms, the court describes such orders as carrying a “heavy presumption” of unconstitutionality. In the Noriega matter, the court will have to consider whether further airing of the tapes somehow violates his right to a fair trial or the sanctity of his attorney-client privilege.
The details of the case leave the free-press issues badly muddied. By impatiently violating the court order instead of waiting for a response to its appeal, CNN seemed to place itself above the law. And many critics emphasized the wrong aspect of the case. The original argument against CNN–that its airing of one of the tapes violated Noriega’s constitutional rights-ignored a critical fact: it was the government taping of those conversations-and not their airing–that represented the actual breach of confidentiality.
While CNN’s behavior makes it harder to man the barricades for press freedoms, the basic issue remains. Should the government help determine what the press can and cannot print or broadcast? Should the FBI sniff around newsrooms? It’s cold comfort for him, but Manuel Noriega may be immortalized less as a pockmarked dictator than as a dogeared legal footnote.
