New York Times v. Jayna Davis 

 

           Scorching winds of change whipped through the Channel 4 newsroom in the summer of 1996. The jet stream blowing in from the east coast carried a stormy forecast for my professional future when the media giant, the New York Times Corporation, purchased KFOR-TV. The new ownership immediately spiked all stories on John Doe 2 and the Middle Eastern connection. My most loyal supporters, the news director and station manager, found employment in other television markets. I, too, moved on, tendering my resignation on the eve of Timothy McVeigh’s federal trial in March 1997.

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            Upon learning I had left broadcasting, attorney Stephen Jones offered to hire me as a defense team consultant. I declined but accepted his proposal to work as a “consultant for a day.” The proposition was obviously designed to entice me to come aboard.

           

           At the Denver defense headquarters, I frantically sifted through a mountain of discovery documents. While scanning several memoranda from the New York branch of the Federal Protective Services (FPS), the name “Yossef Bodansky” jumped out at me. There it was—printed in black and white—the memo mentioned in the last chapter. Bodansky informed the FPS intelligence division that the list of suspects he had compiled in the bombing “overlapped” with the subjects profiled by the Oklahoma City “NBC affiliate.” The phone conversation took place on August 2, 1995—eight months prior to my first call to Bodansky’s Washington, D.C., office.

           

          I nervously shuffled through the stack of related intelligence reports and discovered another FPS memo in which Bodansky described a terrorist threat aimed at Wall Street. “Where’s the prior warning of a pending attack in the heart of the U.S.?” I wondered. The defense team employee assigned to observe my review of the documents noted my bewildered expression.

         

          “Is there something wrong?” he inquired.

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           Contemplating the legal ramifications of the missing evidence, I answered without thinking: “Several alerts about a pending Iran-sponsored Islamic attack targeting the American Midwest issued by the Congressional Task Force are missing from these records.”

 

           One unguarded moment came back to haunt me. A few weeks later, the defense team subpoenaed me to testify in the guilt/innocence phase of McVeigh’s trial. Stephen Jones said he wanted me to enter into evidence a KFOR-TV story in which I interviewed Kansas witnesses who tied McVeigh to a second Ryder truck. I perceived his reason to be a ruse that was rather transparent. I quickly ascertained from legal counsel that the law did not require me to take the stand in order to submit my broadcast report into the court record.

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             “I have a gut feeling Jones is conning me. He has no intention of asking me about a previous story I produced about the bombing. I believe his true motivation is for me to divulge what I know about the missing prior warnings from the Congressional Task Force,” I speculated in a conversation with my lawyer Carl Hughes, a brilliant litigator with a riveting courtroom style that had swayed many a jury. 

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             “We should immediately file a motion to quash your testimony or you will be obligated to reveal your confidential sources on the stand,” Hughes cautioned.

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            “I assumed that Oklahoma newsman’s privilege would preclude a journalist from having to divulge sources in open court,” I responded.

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            “Oklahoma statutes will not carry much weight in a federal death penalty case,” he shot back. “I cannot guarantee you will not be held in contempt.”

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            Suddenly, the thought hit me—my predicament was a lot stickier than I had originally anticipated. In March 1996, Stephen Jones presented a list of Oklahoma City witness reports which the FBI had remitted to the defense. KFOR-TV’s attorney Robert Nelon and I carefully reviewed the names. We were stunned to learn that several of my confidential sources who had given statements to federal authorities had been excised from the record. Naturally, Jones desired I identify the missing witnesses, but I had pledged not to reveal their names to any third parties other than law enforcement.

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           Now I was holding a subpoena and McVeigh’s lawyer held the power to compel me to talk, but Hughes, ever the wily tactician, suggested we lace the motion to suppress my testimony with overt references to my knowledge of Middle Eastern complicity. It was a high stakes gambit, but the only recourse. The scuttlebutt among the press corps indicated Judge Richard Matsch’s tolerance for granting wide latitude to the defense in chasing down foreign conspiracies had run out. 

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          In May 1997, I dialed Bodansky from a payphone on the ground floor of the Denver courthouse, poised to take the stand at any moment if my motion to quash was not granted.

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          “The prior warnings to the bombing that you issued through the Congressional Task Force were not turned over to McVeigh’s lawyers,” I anxiously explained in a soft tone so as not to be overheard. “If it was not an oversight, then withholding the alerts could constitute obstruction of justice, or in the worst case scenario, cause a mistrial.”

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           Bodansky’s normally witty, calm composure did not trump an overriding concern over the impending courtroom showdown. “You assure the judge that you are confident that person A, B, C, and D (Middle Eastern suspects) were involved in the bombing because the Congressional Task Force has confirmed your findings.”

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          Bodansky, like attorney Carl Hughes, correctly assessed that Judge Matsch was not inclined to complicate the trial in the eleventh hour. Obviously, Stephen Jones held the same belief. I sat on a bench outside Matsch’s chambers when Jones emerged reading the motion with a deflated look of defeat. He walked over to my lawyer and explained that he had temporarily withdrawn my subpoena. I had dodged the bullet. 

 

Legal face-off with the nation’s “newspaper of record”

 

            “You owe The New York Times monetary damages if you walk out on your employment contract!” KFOR-TV’s newly-appointed station manager barked across the desk at me. The face-off in the corporate head’s office was obviously designed to intimidate me into withdrawing my March 1997 resignation. I stood my ground. I explained to the irate manager I could no longer work under the New York Times ownership. I had punched my ticket at one of the country’s largest NBC affiliates, KCRA-TV in Sacramento, California, but after steep budget cuts and newsroom layoffs, I landed a position at KFOR-TV. Now, after more than a decade of establishing my credentials as a solid investigative journalist, Channel 4 was sold to the New York Times, and the new management  immediately relegated me to covering cub reporter assignments.  I was convinced the undeclared but unmistakable demotion was tantamount to constructive termination. 

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           The upcoming federal trials of McVeigh and Nichols also weighed heavily in my decision to leave the broadcast industry altogether. Blind obedience to management’s cease and desist order concerning my investigation would have compelled me to report what I considered to be government half-truths in the prosecution of the Oklahoma City bombers. That scenario was simply unconscionable; therefore, I resigned.

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          The New York Times had purchased KFOR-TV prior to my departure. However, the previous owner, Palmer Communications, retained financial and legal interest in the ongoing Al-Hussaini libel lawsuit. The Palmer family had demonstrated unshakable support of my reporting despite the flurry of negative publicity surrounding the charges of defamation. Offering an out-of-court settlement to Al-Hussaini was out of the question. Therefore, I felt obligated to my former employer to remit to the safekeeping of my attorneys the confidential source interviews, the linchpin in the defense of the case. Regardless, Times management insisted I return the tapes to Channel 4.

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         Abundantly aware that chaotic newsroom operations, compounded by pressing deadlines, created a fertile environment for lax security, I expressed my concerns to Channel 4’s general manager that the witnesses’ unpublished statements could be inadvertently broadcast. I had a personal and professional duty to maintain their collective anonymity and to prevent disclosure of their testimonies without their written consent or legitimate intervention by law enforcement. The witnesses understandably feared retribution by the active terrorist network if publicly identified.

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        To ensure the sanctity of my First Amendment pledge as a journalist, I proposed the Times management sign a waiver absolving me of legal liability if my sources’ names or statements were released. My request for indemnification and a compromise agreement, which was plainly stated in several letters written by me as well as my lawyer, was categorically ignored. However, the Times legal representative informed Carl Hughes and me on two separate occasions that the company had no interest in the confidential source recordings that were germane to the Al-Hussaini litigation. But the implicit approval for me to maintain custody of the raw, unedited tapes would be reversed in May 1997 when the doorbell rang and I was handed a subpoena to testify at McVeigh’s trial.

 

        The Times rejected my plea when I reached out for legal representation to quash my testimony. Instead, their corporate attorneys filed a lawsuit, accusing me of misdemeanor theft of station property. However, I was powerless to resolve the legal morass. Before The New York Times initiated legal action, Bodansky requested I send the confidential source recordings to the Task Force, suggesting in a polite but firm tone that a federal subpoena would be forthcoming if I did not comply. Unemployed and expecting my first child, I cooperated, realizing that challenging Congress could drain an already tight personal budget. After obtaining the consent of the witnesses, I shipped the sensitive box of evidence to Capitol Hill.

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        Despite legal pleadings before the court confirming I no longer possessed the tapes, the Times persisted in its courtroom bully tactics. The owners were unfazed by revelations Congress maintained control of the investigative evidence. A sympathetic local attorney, Dan Woska, who would later represent me in Al-Hussaini’s libel case, generously donated pro bono work on the Times lawsuit, but the burden of proof was on me. Ironically, a non-profit organization established by the New York Times to extend free legal advice to journalists provided the bedrock of my defense.

 

Credible Courtroom Ally

 

            The year of 1997 was emotionally trying, fighting legal battles on two fronts—one lawsuit filed by a man I firmly believed to be a terrorist, and the second initiated by my former employer, which threatened to violate the anonymity of the witnesses. Throughout the ordeal, Yossef Bodansky remained supportive but was advised not to become entangled in the litigation. I steadfastly maintained his confidentiality in the court record, omitting references to the highly sensitive intelligence he had shared with me. However, when it appeared my defense against The New York Times might be teetering on shaky ground, Bodansky thrust himself into a precarious position by offering to assist.

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         On October 5, 1998, he drafted a letter to Oklahoma State District Judge Bryan Dixon outlining the significance of the congressional examination of Channel 4’s investigation and the “possibility of foreign involvement” in the April 19 bombing. As the Task Force director, Bodansky straightforwardly expressed his high regard for the trustworthiness of the evidence:

 

The Congressional Task Force on Terrorism and Unconventional Warfare is conducting its investigation of the April 1995 Murrah Building bombing. Most sensitive issues, such as the possibility of foreign involvement, are still being studied. For this investigation, I sought, and still seek, every bit of information from both U.S. and foreign sources. It was in this context that former KFOR-TV reporter, Ms. Jayna Davis, contacted me in April 1996. Ms. Davis subsequently advised me that she had compiled tape-recorded interviews of several substantive witnesses identifying Middle Eastern suspects as being involved in various stages of the bombing plot.

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This evidence is of great importance to the Task Force’s investigation. Therefore, in the Spring of 1997, at my request, she forwarded those tapes to my Congressional office for review and safekeeping. At the time, Ms. Davis was informed that this material could have been subjected to a Congressional subpoena if necessary.

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The Task Force maintains custody of the raw tape-recorded interviews as evidence in an on going Congressional investigation. . . .

Having studied the material provided by Ms. Davis very closely, I consider it most sensitive, reliable and important evidence for the Task Force investigation . . .

 

Having carefully studied these tapes, as well as other work of Ms. Davis, I’m convinced that the witnesses she had interviewed provide credible testimony. It is my professional conclusion, based on lengthy experience with, and expertise in, international terrorism, that these witnesses are, in fact, justified in fearing for their lives in the event their recorded statements are compromised. As already mentioned above, the Task Force keeps these tapes and all related material secure. We don’t even advertise the conduct of this investigation because of its great sensitivity.

 

           The Congressional Task Force letter was to be presented to Judge Dixon during an on camera hearing and not to be distributed to any third parties. In the final hour, I instructed my attorneys to hold back Bodansky’s correspondence, which I deemed unnecessary for the court to issue an objective determination as to whether or not I had acted lawfully when upholding my journalistic commitment to shield confidential sources. Moreover, revealing my professional relationship with Bodansky at that point in time, no matter how discreet, also presented potentially detrimental consequences for the intelligence source I had promised to keep anonymous. As it turned out, my gut instinct was on the mark.

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           After two years of waging legal war in a David versus Goliath battle against the media giant, I prevailed. On March 23, 1999, Judge Dixon ruled that the Times owned the witnesses’ testimonies but with strict conditions attached. While the publishing company rightfully retained ownership of the physical property, consisting of the plastic casings and metallic tape, it could not disseminate the information memorialized on those tapes without the expressed written consent of the witnesses. Judge Dixon upheld my newsman’s privilege to protect my sources until such time that law enforcement authorities solicited their cooperation in bringing the guilty parties to justice. The hollow victory for the nation’s “newspaper of record” turned out to be a landmark case in which the court permitted a journalist to withhold confidential source information even from his or her employer.