Some journalists face arrest, interrogation and lawsuits

From the Summer 2003 issue of The News Media & The Law, page 34.

By Lolita Guevarra

In early 2002, a Washington, D.C.-based journalist was questioned by FBI agents for suspicious phone numbers dialed from his home. Four months later, a federal court awarded another journalist a hearing to present evidence that the county district attorney prosecuted him in bad faith in Buffalo, N.Y. Days later in the same city, police assaulted and arrested another journalist.

All three journalists were doing their job — monitoring the actions of government. But in carrying out their jobs, many have come under attack by public officials.

Pakistani journalist questioned by FBI

On Feb. 20, 2002, three FBI agents questioned journalist Nayyar Zaidi for allegedly dialing from his home phone numbers linked to the September 11 terrorist attacks.

Zaidi, who has been a U.S. citizen for 27 years, is the Washington, D.C., bureau chief of the Pakistan newspaper Daily Jang. In the past, Zaidi has worked for Voice of America and worked for both U.K.-based BBC and CNN as a guest analyst and has been a commentator.

Zaidi claims the information the FBI alleges it has about him is fabricated and that the agency wants to get to his sources. It is not clear whether the FBI knew whether Zaidi was a journalist when it began investigating him — although Zaidi says the agency did know. The agency refuses to comment on the case because it is part of its ongoing September 11 investigation.

“I am the most influential voice in Pakistan and I am very critical of the FBI,” Zaidi said. “I believe they simply want to put me down.”

According to Zaidi, three FBI agents arrived at his home where his 15-year-old son, Zainn, was alone. When Zainn answered the door, the agents entered and asked him where his father was. They left after 15 minutes, leaving their business cards with the boy.

Once Zaidi returned home, he said, one of the agents called and set up an appointment the same day at the FBI headquarters in Washington, D.C., Zaidi was told bring his address book.

When Zaidi arrived at headquarters, all three agents met with him and told him that he was being questioned because there were numbers dialed from his home to several countries including China, Pakistan and Holland.

Zaidi said that at FBI headquarters, the agents gave him two phone numbers — one to China and one to Pakistan — to find in his address book. One agent asked to see Zaidi’s telephone bills after Zaidi said none of the numbers looked familiar to him.

Zaidi refused to turn over his phone bills, and according to Zaidi, one agent threatened that she would obtain a subpoena to acquire the records. He again refused.

The agents then asked questions regarding Zaidi’s personal life including whether he attended a mosque, whether there was a young man living in his basement making bombs, and whether he knew anyone who was remotely an extremist or fundamentalist in their religion, according to Zaidi.

Another agent later questioned Zaidi about his housing history. After Zaidi said that he has lived in Virginia for the past 32 years, the agent told Zaidi that his social security number and home address has been used in several states. When Zaidi asked for a copy of the information, the agent refused.

The agents denied the journalist’s request for a copy of his file because they were investigating and when they were done, they said the file would be shredded, according to Zaidi.

Zaidi left the FBI office and days later wrote a letter to one of the agents, requesting his file. But he never received a response. Zaidi filed an FOI Act request for the FBI file. A response stated that there was no file except for the one he already had from prior requests. Zaidi then filed for an administrative appeal. If his appeal is denied, Zaidi said he intends to go to court.

“I did my own investigation on the two phone numbers allegedly linked to 9-11,” Zaidi said. “I had my friends in Pakistan call the number and they said that the number belonged to a textile mill that went bankrupt and had been disconnected for a long time.”

Zaidi said he has never called any of the numbers the FBI gave him.

The Pakistani Embassy contacted the State Department by a formal diplomatic note on April 3 and is keeping in touch with the department for further developments, said Mohammad Sadiq, deputy chief of mission for the Pakistan Embassy in Washington, D.C.

Critical Mass

While participating in a nationwide cycling event on May 30, Michael Niman, a freelance journalist and Buffalo State College journalism professor, and eight other participants were arrested for allegedly inciting a riot and assaulting police officers in Buffalo, N.Y.

All participants faced felony riot charges, which were reduced to lesser charges at the request of Erie County District Attorney Frank Clark on June 25, Niman said.

Niman, whose arraignment hearing was scheduled for early August, faces obstructing governmental administration and assault charges.

“This is just outrageous that there are any charges hanging over our heads,” Niman said.

Mark Mahoney, lead attorney representing the group, said that he isn’t surprised the district attorney’s office is pursuing the case.

“Prosecutors generally don’t want to tell that they overreacted and made a mistake,” Mahoney said. “I’m happy they’re not facing felony charges because it makes it easier to choose to go to trial and having a trial is the best way to resolve a case like this.”

On May 30, Niman and the other defendants participated in Critical Mass, an event in which cyclists ride together to demonstrate the benefits of bicycle commuting. At the end of the ride, police officers began arresting some of the cyclists, Niman said. The police claimed the cyclists were blocking traffic

Niman said that while Heron Simmonds, a professor of ethics at Canisius College in Buffalo, was being arrested, Niman was taking photos of the arrest. While taking photos, Niman said that he identified himself as a journalist to the police officer.

Immediately after he identified himself, Niman said he was attacked and “he or they immediately stuck something in my mouth, slammed my head down on the hood of a patrol car and began beating me on the helmet, neck and shoulders.”

Police alleged that the cyclists resisted arrest, which in turn, they say, caused a “riot.”

According to Niman, he and the other cyclists did not resist arrest and peacefully complied with the police.

Witnesses and other cyclists took more than 200 photos of officers using excessive force on cyclists who were not resisting arrest, Niman said.

At the precinct, Niman said that after he was booked, he was stripped and taken to a cell. Five minutes later, a police officer gave him a small apron to wear. Niman was the last of all the cyclists to be released from jail.

Freelancer claims “bad faith” prosecution

Buffalo, N.Y., freelance journalist Richard Kern has been prosecuted 11 times in the last four years for various harassment charges involving public officials. However, most of his cases have been dismissed.

But an Erie County judge reinstated separate charges of harassment and aggravated harassment against Kern on July 24, finding that the prosecutor’s evidence was sufficient to avoid having the case dismissed. However, the court upheld the dismissal of a stalking charge. A Buffalo city court judge had dismissed all of the charges two years ago.

Harassment and stalking charges were first filed by Erie County District Attorney Frank Clark against Kern in June 2001 based on allegations that he harassed Buffalo Housing Authority Director Charles Flynn.

Kern allegedly stalked Flynn outside his home, left harassing messages on Flynn’s answering machine and during personal encounters called Flynn “a disgrace to the community and a liar.”

“Our next step is the [New York] Court of Appeals to dismiss the case,” said Kern’s attorney, Michael Kuzma. “The public official is using harassment statues to inhibit Mr. Kern from practicing his First Amendment right.”

Kern maintains that he was working on a story. At the time, Kern was writing extensively on housing issues and on city employees violating the law that required them to live in Buffalo.

Kern said the process has been “very wearing.”

“I’m the only one verbally criticizing the D.A.,” Kern said. “No one wants to take him on for fear of losing their job.”

Kern fought the charges in state court, but his attorney also sought an injunction in U.S. District Court against further prosecutions. Both cases proceeded simultaneously.

The federal court had dismissed Kern’s civil rights suit, but the U.S. Court of Appeals in New York (2nd Cir.) reinstated the case on June 7, 2003, saying that Kern should have the chance to present evidence to support his argument that the state prosecution was brought in “bad faith.”