Testing Different Expectations of Journalism

The call from The Hague came in July of 2001, almost nine years after I had torn open the Velcro strips of my secondhand flak jacket for the last time and passed it on to another journalist heading into Bosnia.

Nothing since has seemed as important, as frightening, or ultimately as frustrating as reporting from eastern Bosnia in the late summer of 1992. But I did it only for a month, dispatched by Newsday as temporary reinforcement for Roy Gutman when he broke the story of Bosnian death camps. Why did an investigator for the U.N. International Criminal Tribunal for the former Yugoslavia (ICTY) want to meet with me now?

What the ICTY was after, I eventually realized, was a sheet of paper stashed in a sagging cardboard box above a garage in upstate New York. Stored as a souvenir with my notebooks and clippings, it was a routine document in Serbian that gave Nina Bernstein, journalist, permission to enter Serb-held territory in Bosnia between August 18th and 20th. One of the illegible signatures at the bottom, I had reason to remember, belonged to Biljana Plavsic.

Plavsic was the former biology professor and strident nationalist who called Bosnian Muslims “a genetic defect on the Serbian body.” She had celebrated the bloody beginning of the Bosnian war of “ethnic cleansing” in the spring of 1992, publicly embracing the paramilitary chieftain known as “Arkan” after his troops casually executed Muslim civilians in the streets of Bijeljina. She had been deputy and then successor to Radovan Karadzic, the leader of the movement that carved out an “ethnically pure” Serbian state in Bosnia though massacre, rape and deportation. And, by 2001, like the Yugoslav president Slobodan Milosevic who orchestrated it all from Belgrade, she had been indicted for genocide and other crimes against humanity.

Encountering Biljana Plavsic

But when I first glimpsed her on a hot August day in 1992 at Villa Bosna, the Bosnian Serb headquarters in Belgrade, Plavsic just looked like a 62-year-old woman with badly dyed hair, in an office meeting with half a dozen men.

The door was ajar, and my two seasoned companions recognized her—Jonathan Landay, then a stringer for United Press International, and Seska Stanojlovic, our translator. Landay barged in and began arguing for what we had been falsely promised the day before by Karadzic: an escort and specific, written authorization to enter Batkovic, a secret detention camp said to exist on a dead-end road north of Bijeljina. Without an escort, Landay considered the hunt too dangerous. The week before, he and another reporter, Peter Maass, had been threatened with death by paramilitary goons guarding the road.

Plavsic finally pushed aside coffee cups, took our ordinary passes, and added her signature. Then she named a top police official in Bijeljina who could escort us to the camp. As it turned out, our entry was delayed by a day when camp guards, acknowledging that we had “civilian authorization,” demanded an okay from the military garrison in Bijeljina, as well. The next day, when we managed to get into Batkovic, we found it was hiding survivors of other camps as part of the Bosnian Serb shell game to appease international opinion.

Weighing the Arguments

I had gone to Bosnia believing that if we journalists only reported out the story of the camps and ethnic cleansing, the world would have to intervene. I soon realized that Western governments unwilling to risk casualties had their own ways of defusing the initial public outcry. The U.S. State Department was “unable to confirm” what it studiously avoided learning. Experts blamed “centuries of incomprehensible blood hatred” for a conflict fomented by neofascist propaganda over state-controlled news media. Jewish groups split over the evocation of the Holocaust as a goad to action. Congress failed to hold hearings on whether “ethnic cleansing” met the international definition of genocide, and diplomats announced peace agreements that went quietly unenforced.

The tribunal might be the last chance to hold perpetrators accountable. If its investigators believed that I could actually help build the criminal case against Plavsic, my first reaction was to feel gratified and eager to talk. Then the investigator, Susan Malone, mentioned that she was a former FBI agent. Suddenly I knew it was not so simple—not for a reporter steeped in the culture of the First Amendment.

During the Nixon era, FBI demands for evidence from reporters were widely criticized as a danger to news media independence and the free flow of information. Federal court rulings on the matter were equivocal. But after reporters demonstrated a willingness to go to jail rather than violate professional principles, limited protections came from shield laws passed in 31 states and guidelines adopted by the justice department.

The least I owed that tradition, I decided, was to consult with colleagues and newspaper lawyers about the ethical, legal and practical issues at stake.

The views I gathered were contradictory. Last year the debate sharpened after the tribunal court tried to compel the testimony of Jonathan Randal, a retired correspondent for The Washington Post. He appealed the ruling, backed by 34 news organizations, and on December 11th, the tribunal’s appeals court set aside the subpoena. For the first time, the decision set limited legal protection for war correspondents against being compelled to testify. But it did not resolve the question that a growing number of reporters will face in this era of international courts and terrorist wars: whether, or when, to give evidence voluntarily. My own experience shows how complicated and conflicted such a choice can be.

John Kifner, veteran New York Times war correspondent, was my nearest neighbor in the Times’s newsroom when the investigator reached me. I shouldn’t even speak with her off the record, Kifner contended. His strongest argument was the most personal: Since I was now a Times’ reporter, if I cooperated with prosecutors I would put him at greater risk of being shot the next time he approached some warlord with his press tags dangling, saying, “I just want to tell your story.”

On the other side was Maass, who had reported from Bosnia as a stringer for The Washington Post and also written a book about the war. Asked to testify in the tribunal’s first genocide trial, he had weighed and ultimately discounted arguments like Kifner’s. The only reason he had not taken the stand was that the defendant had died of a heart attack first.

“I was a freelancer in the end,” Maass told me, explaining why a newspaper’s reputation for impartiality was not really at stake in his case. “These days I’m a magazine writer, and there isn’t the same demand for the appearance of not being involved.” He added: “The rules that they teach you in journalism school, when you’re in a war zone they just don’t apply, whatever the nice ideas are back home about objectivity.”

For my former translator, Stanojlovic, a journalist for the dissident magazine Vreme in Belgrade who had also worked for Gutman and Randal, the stakes were even more personal. “I felt responsible for everything as a Serb,” she said later, explaining why she had spent three days talking to the investigator and sent her on to me.

Legal advice was also mixed. Since I had reported from Bosnia before I joined the Times, whether and how to cooperate was my call, said Adam Liptak, then working for the Times as a lawyer, now its legal affairs correspondent. He said the Times never shares its unpublished information with prosecutors, defendants or others involved in legal proceedings. But hearing my ambivalence, he suggested informal, limited, off-the-record help might be justified and even prudent in this case. Newsday lawyers took a hard line, worked out years earlier with the editor, Anthony Marro, when tribunal prosecutors were pressing for Gutman’s testimony. “We told Roy we didn’t want him to do it and told investigators we’d fight any subpoena,” said Stephanie Abrutyn, the lawyer advising Newsday then. “Tony’s position is it confuses things when a reporter sides with a prosecutor, no matter how sensible and logical it might seem and how good the cause is.”

Newsday maintained that there was no way to confidentially provide informal cooperation and strongly preferred that I not meet with the investigator at all. In theory, Abrutyn added, Newsday could try to stop me, by claiming that anything I had gathered in Bosnia was the paper’s property. In practice, she added, “Tony’s view is we cannot compel you.” Her most telling point was the simplest. “If you turn over the document,” she asked, “who would give it to you the next time around?”

What was at stake was not a smoking gun, not an eyewitness account of atrocity, but the glue of newsgathering. And this was typical, I found. From Maass, for example, prosecutors did not need testimony about the notorious Omarska camp, but evidence that the defendant had authorized his tour there. From Randal they did not need an account of ethnic cleansing in Banja Luka, but his interview about it with the town’s Bosnian Serb boss.

For prosecutors, such details can be legal links in a chain of evidence to prove that an official had “command and control responsibility” of crimes committed on the ground. But did the prosecution really need journalists to supply such nuts and bolts, or was it a matter of convenience? As Liptak asked, “Do we want these people going out and gathering their own information, or just freeloading on the reporters?”

Deciding What to Do

Where would I draw the line? At best, the pass Plavsic signed was meaningless without my explanations—which a defense lawyer would of course want to cross-examine. What about my notes? Maass said he had refused to give prosecutors his notebook. But the British correspondent Ed Vulliamy, who actually took the stand in the same case, had to turn over his notebooks to the defense on order of the court and was grilled for days about “context” and numbers culled from the margins.

“We often have these murky relationships with our sources where we trade information, so it seems very natural to talk,” Tom Gjelten of National Public Radio told me later. “You have to stop and think through whether it compromises principles that protect us in other situations.”

Such concerns can seem petty in comparison to the enormity of the crimes being prosecuted, or to the noblest aspirations of international justice. But Diane Orentlicher, a law professor at American University, reminded me that in operation the tribunals are no less fallible than other institutions. And it was the glue of newsgathering that had made them possible, by bringing the crimes to light in the first place.

Richard Goldstone, the tribunal’s first chief prosecutor, agreed. “I appreciate the importance of the media in uncovering human rights abuses, and I don’t think anything should be done to imperil that,” he said, adding that newspaper policy alone should not determine whether a journalist provides evidence. “You have to deal with each case on its merits. Ultimately, I think it should be left to the journalist.”

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"Consequences Occur When Reporters Testify"
- Roy GutmanVulliamy and other British journalists who testified tend to frame the choice as a contest between professional rules and personal conscience, or journalism vs. justice. But I saw no justice without journalism, and my conscience was engaged on both sides. It was Gutman, sharing his experience of divided conscience, who helped me formulate an answer I could live with when the investigator came.

Soon after September 11th, I met briefly in the Times cafeteria with the investigator. I said I was willing to listen, but that prosecutors would have to persuade me that I had evidence crucial to their case, which seemed highly unlikely. I never heard back.

Reflecting on Varying Perspectives

Months later, in the Randal case, the First Amendment lawyer Floyd Abrams argued for a similar balancing test. The decision itself set a somewhat less stringent standard: To compel a reporter’s testimony, the evidence sought must be “of direct and important value in determining a core issue in the case” and “cannot reasonably be obtained elsewhere.”

Revisiting the issue recently in a story I wrote for the Times (“Should War Reporters Testify, Too? A Recent Court Decision Helps Clarify the Issue but Does Not End the Debate”), I found divisions among reporters growing bitter. Europeans were quick to link the Randal position to U.S. opposition to the International Criminal Court, or to the unilateral behavior of the world’s sole superpower. Some treated a refusal to testify as a failure of personal courage or integrity, even when they knew better, while some Americans discounted British claims of conscience as self-promotion.

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- Lindsey HilsumAt stake, I realized, were differing expectations of journalism itself, shaped both by the role of the press in the reporter’s home country and by the changing demands of individual careers. Journalism is not sacrosanct in Britain, Lindsey Hilsum notes. The British historian Piers Brendon has put it more critically. “Most [British] journalists do not take their role as part of the fourth estate seriously,” he wrote, pointing to an array of curbs and gags in a system lacking the protection of a First Amendment. “The British press holds itself in such low esteem because it lacks a proper constitutional function.”

This helps explain why Vulliamy wrote proudly that journalists who testified could now have “an impact beyond mere ‘reporting.’” Or how Jacky Rowland, a BBC correspondent, could breezily report on her own cross-examination by Milosevic. Complaints by retired BBC editors that her testifying compromised the BBC’s reputation for independence seem like the exception that proves the rule.

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- Bill BerkeleyOn the other side of the transAtlantic divide is Bill Berkeley, who had agreed to testify at the Rwanda tribunal when he was a freelancer writing a book, but had changed his mind by the time the case went to trial, when he was writing editorials about the tribunal for The New York Times. Of course, from the British perspective, the Times and Newsday might also be seen as exceptions that prove the rule—the rule that in an age of Internet bloggers and media conglomerates, expecting the best from journalism might be no less delusional than expecting it from the tribunal.

And yet, without having turned a press pass into criminal evidence, I can rejoice that reporting and prosecution have now accomplished something beyond many people’s expectations: Plavsic, expressing deep remorse, pleaded guilty to crimes against humanity. On February 27th, Plavsic, now 72, was sentenced to 11 years in prison.

Nina Bernstein, a 1984 Nieman Fellow, has been a reporter for The New York Times since 1995. She is a 2002-2003 Holtzbrinck Fellow at the American Academy in Berlin and the author of “The Lost Children of Wilder: The Epic Struggle to Change Foster Care” (Pantheon Books, 2001).