The controversy revolved around the undisputed fact that Noriega’s jailers at the Metropolitan Correctional Center outside Miami had been taping his telephone calls. That is standard procedure at all federal prisons, and it is intended to prevent inmates from using the phone to plot escape attempts or hatch criminal conspiracies from behind bars. The listeners at MCC soon discovered that Noriega was repeatedly calling supporters in Panama to orchestrate opposition to President Guillermo Endara’s shaky government. That revelation, leaked by U.S. government sources, made headlines last month–but while the general’s attempts to play politics may be troublesome to Endara, federal officials reluctantly decided that inmate Noriega had a perfect right, under U.S. law, to call Panama any time he liked.
Enter CNN, the Atlanta-based news network controlled by cable magnate Ted Turner. CNN last week reported it had mysteriously obtained seven tapes of Noriega’s jailhouse phone calls–and one of those tapes apparently included a conversation between the general and two members of his legal defense team in Miami. That raised the explosive question of whether federal officials had been snooping on confidential discussions about Noriega’s defense strategy–an allegation of government misconduct that, if proven, could jeopardize the entire case. Noriega’s lawyer, Frank A. Rubino, immediately went to court to block CNN from broadcasting the tape and to complain that privileged discussions between Noriega and his lawyers were being monitored at MCC. Rubino called the tape a “horrendous” violation of his client’s constitutional rights and said he would seek dismissal of all the government’s charges.
The trial judge, William Hoeveler, ordered CNN to turn over its tapes to the court. CNN refused. The network also said it would resist the demand by Hoeveler and Rubino that it not broadcast any portion of the tapes that included conversations between Noriega and his defense team. In a terse statement issued from Atlanta, CNN president Tom Johnson said the network regarded Hoeveler’s orders as “unconstitutional prior restraints” of CNN’s right to broadcast under the First Amendment. CNN’s lawyers, Johnson also said, had advised him the network could broadcast the forbidden portions of the Noriega tapes while the free-press issue was being appealed. Within hours, CNN did just that, airing a brief excerpt of an audiotape that it said was a conversation between Noriega, an investigator on Rubino’s staff and Rubino’s secretary-translator.
The tape in fact was something less than a bombshell. Speaking in Spanish, the translator asked Noriega about two Panamanian men identified in court files as potential witnesses for the prosecution. Noriega said he did not know one of the men; the translator said the defense team would try to find out more about both witnesses. “It is very interesting because it shows their strategy,” Noriega replied. “It says they are trying to induce any of the two of them to testify before the court against me.” Hoeveler, who listened to the broadcast, said “the conversation they played did not seem to have much impact” on the case. “What concerns me,” he added, “is the willful violation of my order.”
Hoeveler called an emergency hearing the next day to consider contempt-of-court charges against CNN–but the network, citing Hoeveler’s own remarks about the broadcast, demanded that he turn over the case to a different judge. CNN also said it will take its First Amendment case to the U.S. Supreme Court, where it is likely to maintain that the tape was not legally protected by attorney-client privilege because both Noriega and Rubino were warned by prison officials that their conversations would be monitored unless they made specific arrangements in advance. Rubino, meanwhile, was pressing for a $300,000 fine on CNN for every single broadcast use of the offending tape.
A day of hectic legal maneuvering ended with the CNN dispute on hold and the underlying questions about the case no closer to resolution. The primary legal issue was whether anyone in the government had been spying on Noriega’s defense. Justice Department officials in Washington denied it, but the FBI began an investigation. The further question was how CNN got its tapes and whether somebody was trying to torpedo the prosecution case. Rubino claimed the tapes had been sent to Panama by the State Department and leaked by the Endara government; the State Department had no comment. But a source close to the case was clearly appalled by the whole unsavory mess: given the enormous stakes involved, he said, the Noriega tapes should have been sealed on the spot.
