An Assault On American Freedom

Steve Murray
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Wednesday - October 04, 2006
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While Barry Bonds looks forward to one more year and possibly breaking sports biggest record, and while Gary Sheffield and Jason Giambi make a run at a World Series title this fall, the two men who helped bring to light one of the games biggest scandals are in danger of having their freedom taken from them.

After being congratulated by President Bush - who in his 2004 State of the Union address called on professional sports to clean up the steroid mess - San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada are looking at 18 months in jail by the very same administration’s Justice Department.

That’s more time then the combined prison sentences for the chemist who cooked up The Cream and The Clear (Patrick Arnold, three months), the dealers (James Valente and Greg Anderson, three months each) and the mastermind behind the whole thing (Victor Conte, four months).

It has been said in this space previously that if professional athletes want to pump themselves full of drugs until their hearts explode, let them. No great loss. But the danger of performing enhancing drugs does-n’t stop with ignorant adults. It filters down to the impressionable youth who follow them.

Efrain Marrero was only 19 when he took his own life shortly after his parents discovered he was taking performance enhancing drugs and forced him to stop. The Marrero family told the Chronicle that Efrain explained it by saying, “But Barry Bonds does it.”

Rob Garibaldi was 24 and Taylor Hooten only 17 when they both committed suicide after quitting steroid use. Hooten’s father Donald, we will remember, was the only one to speak with any kind of decency during the U.S. House of Representatives’ Energy and Commerce Committee meeting that was investigating illegal performance enhancing drugs in baseball. Donald Hooten pointed to baseball as being complicit in the death of his son, while players and executives hid behind denials, excuses, legalese and even temporarily invented language problems.

Williams and Fainaru-Wada are in possession of grand jury testimony that is, by law, secret. No one argues that. Prosecutors contend that the two reporters are violating federal law by not releasing the name of the person who provided the testimony.

Those supporting the government’s case feel that Williams and Fainaru-Wada knowingly benefitted from evidence that was obtained illegally, and therefore they should pay for their crimes.

As convincing as that sounds, it just isn’t true. The two reporters have not been charged with obstruction of justice, only for contempt of court for refusing the reveal their sources.

Jeff Portnoy, a Honolulu media lawyer, said that Williams and Fainaru-Wada are not in violation of the law because they did not pay or entice their source to gather the information.

“Unless a reporter is actively participating in a criminal act or encouraging someone to engage in a criminal act, there is no legal reason why they are required to either refuse grand jury transcripts or not to be able to maintain those grand jury transcripts to the extent that they are provided to them,” he said.

As sure as this statement sounds, Portnoy said he isn’t totally convinced the courts will agree. Both sentences have been delayed until the trial is heard by the 9th Circuit Court of Appeals.

If this story were just about professional baseball and stolen transcripts it would be a minor story. Unfortunately, the problem is much bigger. The case speaks to the very heart of a free society and the ability of the press to gather information without fear of governmental reprisal. Chillingly, it is a situation that is happening with greater frequency. Last year New York Times reporter Judith Miller served 85 days in jail for refusing to testify in the investigation into the leak of CIA agent Valerie Plame’s name, even though Miller never published the agent’s name. The one who did, columnist Robert Novak, served no time, suggesting a deal was cut. Then there was Josh Wolf who was jailed for 31 days for not releasing to investigators film that he shot of a riot during a protest in San Francisco against the G-8 summit in Scotland.

The United States needs a federal “shield law” to protect reporters and their sources - much like the privilege given to lawyers, doctors and religious leaders.

Sen. Arlen Specter, R-Pa., has been pushing for just such a law, but is being challenged by the Justice Department. Action on the bill could begin following the November elections when it’s safer. Testimony has been ongoing.

Theodore Olson, the former solicitor general for the current Bush administration, testified last week before the Senate Judiciary Committee, saying “One of the most vital functions of our free and independent press is to function as a watch-dog, working to uncover stories that would otherwise go untold. Journalists in pursuit of such stories often must obtain information from individuals who, for fear of retribution or retaliation, are unwilling to be publicly identified. Those journalists - often reporting on high-profile legal and political controversies - cannot function effectively without offering some measure of confidentiality to their sources.”

The importance of confidentiality did not end with Watergate. It continues every day. If government is allowed to determine what information the citizenry is to have access, then the democracy that we have fought for will no longer exist.

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