U.S. District Court Judge Kathleen Cardone ruled today that the recordings - some five hours of interviews captured on four cassette tapes - could be admitted even though the tapes were copies and contained gaps.
The judge's ruling - see 20-page PDF here - disappointed author Ann Louise Bardach, who interviewed Posada Carriles. Bardach said in a message:
I and the New York Times - led by attorney Tom Julin of Hunton & Williams - have been fighting subpoenas from the government in the Luis Posada case for five years. We have done so in defense of one principle: that reporters should not be compelled to provide evidence against their sources. Nor can I fathom how battered, decade-old Radio Shack reporter tapes, can be used as a legal bludgeon against a former source. I would never had appeared in court nor turned over any materials without a subpoena - and would have been greatly relieved if the Court had ruled that the recordings of my interview with Posada were inadmissible.Posada Carriles' trial is set for January.
As I have written in The Washington Post and my book, Without Fidel, the government had five decades of evidence concerning Posada's para-military activities - which should have made use of a reporter's tapes unnecessary. Moreover, five boxes of files and evidence concerning Posada in the Miami bureau of the FBI were destroyed in the summer of 2003, an event never properly investigated.
Although the Court's determination that the tapes fairly reflect my interviews with Mr. Posada and confirms the accuracy of the articles published in the New York Times in 1998, it is a troubling ruling for journalism. While Posada was not a confidential source, it could well deter subjects and sources from speaking to reporters in the future and will likely encourage journalists and media organizations to destroy notes or materials for fear of being used by prosecutors who are either too lazy or fearful to build their own cases.
It is a pretty sad day for the Fourth Estate - never mind our democracy or the First Amendment - when reporters and their materials are hauled into court.