Off the Record

Editor’s note: This story was originally published on Dec. 11, 1995.

In one of the few instances of the Justice Department strong-arming journalists since the Nixon Administration, U.S. attorneys in Miami have convened a Federal grand jury to discover the identities of two reporters’ sources. In the process, Federal Government lawyers on the case have dragged The New York Times, Spin magazine and big-time First Amendment lawyer Victor Kovner into a possible freedom-of-speech imbroglio.

The reporters are Murray Waas, a former Village Voice writer now freelancing for Spin, and Douglas Frantz, an investigative reporter for The New York Times. The story they have worked on involves the U.S. Government; a major defense contractor called Teledyne Inc.; the sale of 130 tons of an explosive chemical compound called zirconium; an allegedly shifty Chilean arms maker named Carlos Cardoen; cluster bombs; and, in the role of the heavies, the Iraqis.

Mr. Waas first delved into what became known as “Iraqgate” when his story, “Gulfgate: How the U.S. Secretly Armed Iraq,” ran in the Dec. 18, 1990 issue of The Voice. In 1992, he and Mr. Franz teamed up for the Los Angeles Times to write more than 100 stories on U.S.-Iraqi skullduggery; as a result of the series, both were named finalists for the Pulitzer Prize in national reporting that year. Mr. Waas followed up the series with a piece in the Nov. 2 1992 issue of The New Yorker, which he co-wrote with Craig Unger. (Mr. Unger, a former deputy editor of The Observer, is not editor in chief of Boston magazine.)

Since 1992, Messrs. Waas and Frantz have continued to follow their own respective leads on the U.S.-arms-sales-to-Iraq track. Trudging down this path once more for Spin this past spring, Mr. Waas stumbled upon something new: A Federal grand jury, he found, was trying to root out his and Mr. Frantz’s respective sources.

The Federal grad jury investigation came as a result of Mr. Waas’ research into the case Edward Johnson, a former Teledyne salesman who was convited on April 4, 1995, of selling 130 tons of zirconium to Mr. Cardoen, the Chilean arms dealer who turned around and sold it to Iraq in the form of cluster bombs. In his research, Mr. Waas got hold of a transcript of some testimony from a Federal grand jury investigation. When Frank Tamen—the assistant U.S. attorney who had the case against Teledyne and Mr. Johnson in Federal court in Miami—found out about Mr. Waas’ having gotten his hands on the testimony, he was reportedly not pleased. And now the search is on, at the Federal level, to find the leaker who gave Mr. Waas the goods.

According to a source close to the case, Mr. Tamen has concluded that the defense attorneys—William Linklater and Mark Oates represnting Teledyne, and Gerald J. Houlihan representing Edward Johnson—are the men who may have done the leaking. In a move that would seem designed to kill the same bird with two stones, Mr. Tamen has asked a judge to charge all three defense attorneys with criminal contempt of court for allegedly passing the grand jury material to Mr. Waas. In addition, he has convened a separate Federal grand jury investigation essentially to do the same thing—find the source who leaked the grand jury minutes to Mr. Waas. While they’re at it, the grand jury has been charged with the task of ferreting out the source of a classified C.I.A. report leaked to Mr. Frantz, parts of which were quoted in an article he wrote about the Teledyne case on May 17, 1994 in The New York Times. Mr. Frantz had no comment on the matter.

According to sources, Mr. Tame claims he has no evidence to show that the Teledyne defense attorneys and Mr. Johnson’s defense attorney leaked the grand jury minutes to Mr. Waas. A hearing has been tentatively scheduled for Dec. 14 in Federal District Court in Miami and a Federal magistrate has been designated by the judge to preside over the matter to determine if the three defense attorneys should be held in criminal contempt. Mr. Waas has been subpoenaed by the defense counsel to testify.

Mr. Waas has not, however, been called in front of the grand jury convened expressly to root out his and Mr. Frantz’s respective sources. But he said he had received a call from Mr. Tamen.

“The prosecutor called me up—and this is pretty mind-boggling—the prosecutor called me up and asked me if I would tell him who the source was and testify, which was quite bizarre,” said Mr. Waas. “It was amazing. I mean, have we got the Justice Department or the Keystone Kops here? That’s just unbelievable that he would have the audacity to call me up and ask me to identify the source and then testify against the source.”

According to Mr. Waas, the central issue in the whole story is whether the Government “knew about, authorized, approved of or acquiesced” in the sale of cluster bombs to Iraq and whether it had a convert policy to help Iraq. The Government denies it.

Mr. Waas seemed concerned that he could go to jail for refusing to reveal his sources. But Mr. Kovner, who will represent Spin’s reporter in the criminal contempt-of-court hearing, was confident that Mr. Waas would not be put away. (Mr. Kovner is also representing Business Week in its efforts to overturn an injunction prohibiting the magazine from publishing information it obtained from sealed court documents while researching a story on a lawsuit involving Procter & Gamble and Bankers Trust.)

“There is an applicable shield statute in Florida which protects a journalist from compelled disclosure of a confidential source,” said Mr. Kovner. “Murray will not reveal any source to whom he has given a commitment of confidentiality. If anybody seeks to do that, that will be an unsuccessful behavior.”