Carl Stern Fourth Interview

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Oral History of Carl Stern
This interview is being conducted on behalf of the Oral History Project of The Historical
Society of the District of Columbia Circuit. The interviewer is Judy Feigin, and the interviewee
is Carl Stern. The interview took place on the terrace at Carl’s home in Washington, D.C., on
Monday, November 9, 2020. This is the fourth interview.
MS. FEIGIN: When we left off, we were talking about the Supreme Court, and you were
sharing some thoughts about some of the justices you had interactions with.
One of the points you were making was how they could walk down the street
and no one would know who they were; you gave some vivid examples of
that. It hasn’t been that way for some of them recently, most particularly, it
seems to me, Justice Ginsburg and also Justice Scalia. The justices give
speeches. They’ve been out and about more, and I wonder if you have any
thoughts about that. Is that a good thing? Is it not?
MR. STERN: Well, I’m a bit old fashioned. I think Justice Ginsburg was probably overexposed.
Occasionally she got into trouble for being too candid. I don’t
have to recite what those incidents were. Also, as a practical matter, courts
have to speak from their written opinions. And I do worry. I mean, I
encourage public officials, including justices, public figures, to go out and
speak, but for judges there is a difference. I remember one case where
Justice Stewart was quoted, giving his interpretation of a case the Supreme
Court had just decided. I’m struggling to remember what it was about. It
was at an ABA meeting in Montreal. In any event, he was quoted widely in
the papers expressing his view as to what the Court’s ruling meant. I started
to think to myself, when the next case comes up that involves that precedent,
are we now going to have this sort of thing where a lawyer says to the court,
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“Well, your Honor, Justice So-and-So at a bar meeting in Philadelphia said it
meant this.” And the other lawyer leaps to his feet and says, “Now wait a
minute. Justice So-and-So was quoted in Time magazine as saying it meant
that.” Courts really should not and cannot work that way. They can only
define the law in their written opinions. Lawyers and judges have to know
with certainty where to find the law. The justices can comment about their
work in general, but they have to be discreet. When it comes to personal
things, Marty’s cooking, whether she liked his beef stroganoff, well fine. Go
to it.
MS. FEIGIN: We should say Marty was Justice Ginsburg’s husband.
MR. STERN: Right. We have to use a little judgment. That’s all I’m saying.
I do have to tell you that we once got in a terrible dust-up with Justice
Scalia. I say “we” because my wife was with me. We were at a dinner
seated next to him, and there had just been an instance in which a federal
judge in Wichita had gone on a local television station to explain a ruling that
he had made in a case that involved busing or school integration, something
of that nature. There had been a community uproar, or at least a small
uproar, about the judge’s decree, and the judge felt it appropriate to explain
his reasoning and what the law requires, and did so. Well, what I remember
is Justice Scalia thought that it was horrible for the judge to go on a local
television station to explain what he or she had just done. I thought the judge
had acted courageously and inventively in trying to calm the waters. It’s like
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anything else. We have to do what we think is right, but do it in moderation
and under the right circumstances and for the right reasons.
MS. FEIGIN: One other question I have about the Supreme Court before we leave that
topic. You were a member of the Supreme Court bar, I believe.
MR. STERN: Yes.
MS. FEIGIN: Did that make any difference in your work?
MR. STERN: Well, I should tell you, I was never a practitioner, although I am licensed. I
always felt it was appropriate to do that, to remain within the discipline of the
bar. Once you have been admitted to the bar, it seems to me you have certain
obligations, and I think it’s appropriate for you to understand what those
obligations are and that in fact they can be enforced against you. Bar
membership does not give reporters who cover the Court extra privileges.
Perhaps it did at one time.
Those of us journalists who were members of the bar could go upstairs
and use the Supreme Court library on the third floor. That got cut off under
somewhat embarrassing circumstances. One of my colleagues, who was
actually a good guy but a little overly ambitious, was caught in the library
rummaging through a trash basket looking for notes that the clerks
had discarded, thinking that might give him a clue as to what the Court was
going to do in particular cases. Needless to say, the Chief Justice was not
amused and, even for those of us who were members of the bar, our library
privileges were revoked.
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MS. FEIGIN: Since you bring up the fact that you felt you should keep up your bar
memberships, maybe this would be a good time to discuss what you did as a
member. You were a member of which bars and which legal organizations?
MR. STERN: I started as a member of the Ohio bar, and that’s a wonderful bar to join
because it’s relatively easier to become a member. At the time that I took the
bar exam, we had to do three full days, all essays; there was no multi-state.
We were confronted with fifty scenarios. We had to respond to forty. In any
event, the point I wanted to make was it was possible to take the Ohio bar
and to answer every question wrong and still pass [laughter].
MS. FEIGIN: How?
MR. STERN: Am I giving away a secret here [laughter]? I presume it’s changed. That’s
because, for each answer you gave, you could get a total of ten points. Up to
7.5 points were awarded for each one for correctly identifying the issue, and
2.5 for resolving it correctly under Ohio law. A passing grade on the Ohio
bar was 75, so it was theoretically possible to answer every question wrong
under Ohio law and still pass if you correctly identified the issues. And
actually, when you think about it, it may make sense, because as you well
know as a lawyer yourself, nine-tenths of the battle is to identify the issue –
presumably from your point of view the winning issue – then you can always
find someone who will dig up the relevant cases.
MS. FEIGIN: Were you also a member of the American Bar Association?
MR. STERN: Oh, of course. I was extremely active in the ABA. I went to bar meetings,
the annual and mid-years, for at least twenty years, very often dragging my
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wife and kids along with me. I was a founding governor of the ABA Forum
Committee on Communications Law. That was back in the late 1960s. I was
vice chair of the Criminal Law and Media Committee of the Criminal Law
Section. I was a member of the Standing Committee on Strategic
Communications. It’s a relatively small group within the ABA that advises
the ABA president on policy matters. And I was a member of the Working
Group on Intelligence Requirements and Criminal Law Reform. So I was
very active in the ABA.
I should tell you one meeting stands out over all those years, and that was
one in 1973, during the height of Watergate. In the midst of the tumult, the
ABA president was Chesterfield Smith from Florida, a wonderful lawyer, a
one-time Nixon partisan. But he gave an electrifying, “no man is above the
law” speech, impelling the ABA to call for Congress to appoint an
independent special prosecutor to investigate the President’s conduct. It
made headlines and resulted – to some degree gave it impetus – in the
establishment of the special prosecutor’s office, which, by the way, was
headed later by a former ABA president, Leon Jaworski, after Archibald Cox
was fired at the order of the White House.
MS. FEIGIN: In addition to your ABA activities, weren’t you involved in helping to
develop ethical standards for PBS? How did that come to be?
MR. STERN: I was asked to be a member of the committee that revised the ethical
standards for the Public Broadcasting Service. I had plenty of extra139
curricular activities. I also was a member of a Department of Transportation
task force.
MS. FEIGIN: What did that involve?
MR. STERN: We were asked to develop standards, if you will, protocols, mechanisms for
dealing with notification of families and the public in the event of a mass
transportation disaster, an accident of some kind. In fact, even to this day,
many of the things you’re asked to do when you buy an airplane ticket is to
provide information about notifying next of kin and that sort of thing, and
that was developed by our task force as an advisory body to the Secretary of
Transportation.
MS. FEIGIN: How broad-based was this committee?
MR. STERN: Some of the members had a background in aviation disasters, obviously, but
it was a broad spectrum, such as people from the travel industry. But they
were looking for people with a background in communications as well, and
that’s why they invited me.
MS. FEIGIN: When was this?
MR. STERN: In the 1990s.
MS. FEIGIN: They didn’t have protocols before then?
MR. STERN: Oh sure, they had their own procedures that they had worked out, but they
were looking for an outside reviewing body to determine if those standards
were adequate and appropriate.
If we are talking about outside activities, I should also tell you I was very
active in the labor union that represents the broadcasters. I was a shop
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steward at NBC News in Washington for twenty-one years. I was on the
local board for I think sixteen years. I served one term on the national board.
That’s AFTRA, the American Federation of Television and Radio Artists.
MS. FEIGIN: Were there any strikes?
MR. STERN: I was on strike twice, once in Cleveland and once shortly after I got to
Washington. I don’t think I was here more than six months when I was
walking the picket line.
MS. FEIGIN: What was the issue?
MR. STERN: That’s too long ago. We were just mad about something [laughter]. But we
tried to help maintain standards. I will say it was a lot easier to go on strike
in Cleveland than it was in Washington. The first time I went on strike was
in Cleveland. I was working in those days for Westinghouse Broadcasting,
and there was a labor dispute, and we went out on strike, and we didn’t know
how long we would be walking the picket line. Well, what we didn’t know
was, the next morning, after we walked out, your friendly Teamsters Union
local sent about 25 guys who looked like fullbacks to demonstrate in front of
the station. Of course they couldn’t interfere with the people who worked in
the building going in and out, but they completely cut off the delivery of
things like coffee and bathroom tissue. By that night, the strike was over
[laughter].
MS. FEIGIN: That’s fascinating. If I could go back for a minute. You said you helped
develop ethical standards for PBS. I’m wondering what kind of standards are
we talking about? What got changed?
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MR. STERN: Our task was to reconsider and clarify standards. Things like what is the
level of verification required before you put something out on the air. Ethics
and conflicts of interests – the innumerable questions about what to report
and how. In fact, I taught a course on ethics at George Washington
University where we spent a whole semester considering what was the right
thing to do in various situations.
MS. FEIGIN: Was it at all different if you were dealing with this for PBS? Was PBS
different from other stations in this respect?
MR. STERN: A little bit, because it was governed by a parent organization, the Public
Broadcasting Service. There was a board of governors that had a role. I
suppose it’s also true that since we were not worried about turning a profit, a
profit motive didn’t come into it. We were trying not only to define
standards but to elevate them. And there were some wonderful people. I sat
next to Marvin Kalb from NBC and CBS, whose name I’m sure is familiar to
you.
MS. FEIGIN: Indeed.
MR. STERN: So ask me some stuff about covering the law and the legal community. You
asked me about bar membership. I was for a while on the District Lawyer
board, the bar publication in D.C. But other than that, I was not active in the
D.C. bar because in D.C. I was classified as an inactive member since I was
not in the active practice of law. More fun to preach than to practice.
MS. FEIGIN: [Laughter.] So, back to the law, as you ask. Let’s go to some of the big
cases you covered because I think there were at least some we should
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mention that we didn’t. You mentioned the Ford Pinto case last time, just to
say it was the first time there had been a criminal prosecution for murder.
MR. STERN: That was the case in which I almost froze to death. There was only one pay
phone in the courthouse, and this was long before cell phones. They had the
phone company bring in a trailer with phones mounted on an open rack. It
was out in front of the courthouse on the lawn. Now it was about six degrees
[laughter]. This is Winamac, Indiana, in the depth of winter. I don’t know
how any of us survived the winter in Winamac having to file on the phones
in the middle of the arctic lawn of the courthouse. But quite apart from that,
there were other problems, too. For one thing, Indiana — I think it has
changed, but I’m not certain — Indiana in those days had different time zones
county by county. And as fate would have it, our motel was in one time zone
but the courthouse was in the next time zone, ten miles away, and we never
knew what time it was [laughter]. That makes it harder to get to court on
time. I do remember that. Who said it was easy being a reporter?
MS. FEIGIN: Any other special memories of this trial?
MR. STERN: We’ve been talking about ethics, and there was one ethical issue that troubled
me, which was that the prosecutor had at the prosecutor’s table a uniformed
Indiana state highway patrolman, a big handsome guy, in the most gorgeous
state trooper’s outfit you’ve ever seen. I suppose he was there to be a
technical advisor to the prosecutor, but it was a jury case and it seemed to me
to have a member of the law enforcement community there in uniform would
unduly influence the jury. If I were the judge, I don’t think I would have
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permitted that. To this day that has bothered me. As it turned out, it didn’t
matter much. The jury found Ford not guilty.
MS. FEIGIN: What were the facts of the case?
MR. STERN: Three teenagers in a 1973 Ford Pinto were killed when the driver stopped on the
highway to retrieve a gas cap and a car came up from behind and rammed the
back of the Pinto and the gas tank exploded. After a lot of expert testimony about
the design of the car and the placement of the gas tank, the jury concluded that the
Pinto was no more or no less safe than any other car in its class. I should mention
that there were more than one hundred civil suits brought by Ford Pinto owners or
their estates, which resulted in substantial civil judgments. But you haven’t seen
a lot of attempts at using the criminal law against corporations for negligence
since. I wonder if that influenced it.
MS. FEIGIN: Another big case you covered, which I would welcome your reminiscences of, is
the IBM antitrust case.
MR. STERN: Well, at the time, a professor at Yale by the name of Robert Bork described the
IBM case as the Justice Department Antitrust Division’s Vietnam, meaning it
went on and on to the point of exhaustion. It was filed in 1969 before an iconic
judge, David Edelstein, in the Southern District of New York. I decided I would
go for the opening of the trial, and we did a piece on the opening day, and I said
this is going to take a while. I’ll come back for closing arguments. Well, I didn’t
know what lay ahead. In the first place, the lawyers skirmished pre-trial until
1975. Six years. Discovery primarily. The trial finally began in 1975. When I
say “began,” it was 30 million pages of documents. One government witness was
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on the stand for 78 days. Are you getting the picture? This case ran the tenure of
six attorneys general and four presidents. This was an antitrust monopoly case.
This was when general use digital computers were becoming very much a driving
element in the business machine marketplace, and there was concern that IBM
was attempting through various stratagems to monopolize the business. In any
event, this trial kept going and going, and it finally reached the point of
exhaustion. In 1982, the Antitrust Division took a look at how the landscape of
the computer industry had changed in the intervening thirteen years and decided it
was time to throw in the towel. And so I never got to go back to New York for
the closing argument [laughter]. That was it. I covered a case for thirteen years
and I went once, and that was for the opening day [laughter].
MS. FEIGIN: Was this before courtroom use of computers? If you had millions of pages of
documents, they probably weren’t computerized. Or were they?
MR. STERN: By then it had begun. We certainly had word processing by then. But in any
event, I am glad I was not present in court when they tried to have 30 million
documents admitted into evidence.
MS. FEIGIN: Any other major cases you want to discuss that were here?
MR. STERN: I forgot entirely to bring to your attention that I actually can claim to be an
international legal journalist.
MS. FEIGIN: Before we get to that, are there other stateside cases you would like to
discuss?
MR. STERN: I think we’ve done enough.
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MS. FEIGIN: Okay, but before we leave these shores, I want to ask you something about
stateside courtrooms that is still an issue. I’d like to get your viewpoint on
cameras in the courtrooms which began at some point while you were a court
reporter.
MR. STERN: With respect to cameras, I’d have to say, again, I’m somewhat in the middle.
Initially, in the late 1960s, I was very active in working with others to try to
get the courts to consider opening their doors to cameras. I worked very
closely with Sandy D’Alemberte, who was the president of the American Bar
Association, a lawyer from Tallahassee, a law school dean. For a number of
years, he was the president of Florida State University. An absolutely
wonderful, marvelous human being, and I think he was largely responsible
for the Chandler case, which would have been around 1981. Two Miami
Beach police officers had been arrested for burglarizing a restaurant. And
when it went to trial, the state court agreed to have it open to cameras, thanks
to the efforts of Sandy and others, although under certain constraints. The
cameras had to be unobtrusive. They were not to cover conferences at the
judge’s bench and so on. They had to avoid showing the jury. The
constraints were numerous but this was the first time that a trial was open to
cameras since prohibitions were initiated in the wake of the Lindbergh case
in the 1930s. In any event, on appeal Chandler and the other officer
contested their convictions on the basis that they didn’t get a fair trial. They
contended that the cameras might have influenced the lawyers, the judge and
the jury. That case went to the Supreme Court. The Supreme Court ruled
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unanimously that the defendants had failed to substantiate their claim of a
due process violation. That opened the door, and today there are only one or
two states that don’t allow cameras under any circumstances in the
courtroom.
The federal courts did try it as an experiment for a while in some of the
Circuits, but they are still mostly closed to cameras. Advances have occurred
in hearings in civil cases. The Supreme Court itself now routinely makes
audio recordings available after the fact, but no video. To some extent I can
understand it. It’s the Court’s playpen, and I think they like their privacy. I
can recall going to the Safeway on Arlington Road and seeing Sandra Day
O’Connor pushing her cart and nobody was bothering her because I guess
most people didn’t recognize her because they hadn’t seen her much on
television.
MS. FEIGIN: The Court only began to release audio of their arguments I think in the early
1990s, because of efforts by Peter Irons, a University of California San Diego
professor.
MR. STERN: When I was there, arguments were being recorded, but you had to go over to
the Library of Congress to hear them, and that’s as far as the justices would
go. Bottom line, like all the things we’ve discussed, it has to be done with
appropriate procedures. I can’t think of a single instance in the United States
in which a trial has been derailed because of the presence of cameras. It
seems to me until and unless it becomes clear that it is affecting the quality of
what occurs in our courtrooms, the burden of keeping the cameras out is on
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the resisters. That’s my middle-of-the-road, average person, reasonable
position.
MS. FEIGIN: Okay. So now moving on to international cases.
MR. STERN: I only covered one. In 1979, as you well know, Iranian mobs seized the U.S.
embassy in Tehran and held 53 Americans as hostages, and of course the
buildings as well. Shortly thereafter, the United States went to the World
Court, the International Court of Justice in The Hague, in the Netherlands, to
seek the Court’s assistance in getting the hostages released and the embassy
returned to U.S. custody. I went and actually spent nine days in The Hague.
I went for the opening argument and then remained to await the decision.
That wasn’t necessarily a good thing. I remember when I was checking out
of the hotel, my telephone bill was $800 [laughter]. Of course, some of that
was calling home at night to reassure my wife I was being well fed.
MS. FEIGIN: What about the decision?
MR. STERN: The World Court did issue an order to the Iranians to release the hostages and
turn over the embassy. But the Iranians did not appear. They did not
surrender to the court’s jurisdiction. The Americans ended up being held for
444 days. But when President Reagan came into office, as sort of an
inaugural gift, the Iranians, as you recall, released the hostages and returned
the embassy to U.S. control.
I did have one dramatic incident, which will not go down in the annals of
the law, but when I was finally departing The Hague, after having been there
nine days, I stopped at the gift shop in the airport and I acquired a 60-pound
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chunk of cheese. It was heavy. Maybe it was 40 pounds. It was not just a
wedge; it was a whole wheel. I thought my wife would enjoy having some
cheese. I received assurances at the duty-free shop that the cheese would not
ripen so quickly while I was en route home that it would start to smell.
Unfortunately, my flight was cancelled. And I’m sitting there with 60 or 40
pounds of this quickly ripening cheese [laughter], and I don’t have a flight.
Well fortunately a fellow journalist, Bernard Shaw, who used to be with
CNN, was also going home on the next flight. He had privileges in the
airline lounge where we could at least refrigerate the cheese [laughter]. So
the story ends happily. It had a Hollywood ending [laughter] because I
managed to get the cheese home in time before it exploded in unpleasant
aromas.
MS. FEIGIN: We should say, because you did television journalism, and we’re talking
about the hostages, that that was such a huge story that it led to the creation
of the TV show Nightline.
MR. STERN: Absolutely. Every night they ticked off how many days the hostages had
been held.
MS. FEIGIN: I think that show was intended to just cover the hostage situation, but it
became such a television staple that it runs still.
MR. STERN: Yes. So that’s about the end of all my war stories. There’s one chapter left
in my journalism career, I suppose, which is FOIA.
MS. FEIGIN: I don’t think we’re done with your war stories, so let me ask a little more.
Speaking of war, did you ever get to Vietnam?
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MR. STERN: When I was the backup reporter for NBC at the White House, in 1967 and
1968, I traveled there with Lyndon Johnson.
MS. FEIGIN: Was this on Air Force One?
MR. STERN: No. Usually there are three aircraft. There’s the president’s plane; there’s a
plane with all the secret service agents and communications people and so
on; and then there’s a press plane. There is a press pool aboard Air Force One
for a few of the senior journalists, but I was a private in this army. They
didn’t put me on Air Force One. In any event, I remember going with
President Johnson to Cam Ranh Bay in Vietnam. I hope this won’t
disappoint you, but while spending time at Cam Ranh Bay in Vietnam, I
never saw a Vietnamese. They had cleared the entire peninsula of
Vietnamese for security reasons. We could just as well have been at an Air
Force base in Texas.
MS. FEIGIN: What was the occasion for this trip?
MR. STERN: This was part of an around-the-world trip that I went on with Johnson, which
was an experience in itself. It had all started off because Harold Holt, the
Prime Minister of Australia, disappeared while swimming a week before
Christmas in 1967, and we took off to go to the funeral.
MS. FEIGIN: They found his body?
MR. STERN: I’m not sure they ever recovered his body, not that I am aware of. In any
event, Lyndon Johnson decided to go, and I remember it was a difficult trip
for a variety of reasons. For one, when we took off to head westward across
the Pacific, we all had to line up. A Navy corpsman in the back was giving
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us shots, and I don’t mean in the arm [laughter]. Furthermore, my wife and I
had just returned from a marvelous vacation in southern Spain. We were
coming home to Washington at Christmastime and asked the hotel concierge
to ship our warm-weather clothing to D.C. to lighten our bags which were
stuffed with souvenirs. So we arrived back in Washington and – surprise – I
have to go to Canberra. I don’t have any summer clothing; it’s on a ship
somewhere. It’s like 106 degrees in Canberra. Off I go to Australia in my
heavy woolen suits [laughter].
MS. FEIGIN: Why was the President going around the world?
MR. STERN: He had an idea that, as long as he was out as far as halfway around the world,
he might as well keep on going. That led to some strange circumstances.
Operating on short notice, the President’s staff had to line up places to land
to refuel. They thought first of England and France and Germany, but they
were all having huge anti-Viet Nam war demonstrations against the U.S., so
that was out. The Italian government was having political problems.
Portugal might have welcomed Johnson, but there was Salazar, a dictator.
Perhaps Spain? But there was Franco. The White House was running out of
countries. And here we are, flying at 35,000 feet, ever westward, and we
don’t have a place to come down. I remember one of the Bundy brothers
came to the back of the plane to try to explain the dilemma. Finally they got
the Pope to offer to meet with the President, and that obligated the Italian
government to let Johnson set down in Rome. The papal invite was the hook
for getting permission to land in Rome.
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I should also tell you that trip taught me to admire the veteran skills of The
New York Times. At one point we landed in Karachi and everybody, of
course, wanted to get to a phone to file a story. Only The New York Times
reporter had been given an envelope by his office containing the coins of
every country we possibly might pass through. We were not in the terminal
where there might be a currency exchange. Only The New York Times
reporter had coins to make the telephone work [laughter].
MS. FEIGIN: Wow. Well, we should explain for people reading this, now or in the future,
that in those days you had to drop coins into the phone to dial it; that won’t
resonate for people using the modern phone system.
MR. STERN: Absolutely. We’re talking about the 1960s.
MS. FEIGIN: Did you ever go on other foreign trips with the President?
MR. STERN: Yes, when Johnson went to El Salvador in 1968 to promote the Central
American Common Market. In fact, that trip illustrates another situation
journalists confront.
MS. FEIGIN: How so?
MR. STERN: The office decided on the spur of the moment that it wanted an advance
piece, a scene-setter, to air on July 6th, the night before the President’s
arrival. I flew to Miami on the 2nd, stayed over, and arrived in San Salvador
on the 3rd. I met NBC’s Mexico City camera crew and phoned the American
Embassy which the State Department had assured me would give me a
briefing, interview subjects, and other help. No answer. It turns out the
Embassy was closed, and the next day too, to celebrate the U.S.
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Independence Day. I’m not an economist. I don’t speak Spanish. I’ve been
about as far south as Tijuana. I knew zilch about the Central American
Common Market. This was all in the days pre-Google. My filmed story was
supposed to be put on a plane to our feed point in Miami on the afternoon of
July 5th.
MS. FEIGIN: So what do you do?
MR. STERN: Well, my cameraman Tony Halik and I go into the hotel bar to commiserate,
and as luck would have it, sitting on the next bar stool is a professor from
Michigan State University who happens to be the world’s leading expert on
the Central American Common Market [laughter]. The rest, as they say, is
history.
I survived what we call in the news business parachuting into a story. And
in those days, as I said, pre-Google, it was a lot harder. I guess the moral of
the story is don’t try to do a story involving U.S. officials around the date of
a national holiday. Or, better yet, be prepared.
MS. FEIGIN: Definitely [laughter]. Okay, you wanted to talk about your FOIA career.
MR. STERN: FOIA made a big difference. The Freedom of Information Act was enacted
by Congress in 1966 and became effective in 1967. It wasn’t used much in
the beginning because it applies only to records of executive branch agencies,
not Congress or the President, and there are nine exemptions – exemptions
for documents affecting national security, or open investigations, or people’s
privacy or candid exchanges between government officials. At times there
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seems to be a tenth exemption, which is not in the law but is the “We don’t
want to give it to you” exemption [laughter].
The primary users in the beginning were people FOIA-ing the Commerce
Department, commercial users of FOIA seeking information about what their
competitors were up to. That information might have been filed with the
government. In any event, I used FOIA as a wedge, a shoehorn, whatever
you want to call it, to learn what the government was doing. Not only did I
use the spirit of the Act to buttress my daily news quest, I was the litigant in
four lawsuits as a reporter and was largely successful. The most far-reaching
of those was the Cointelpro case, but I’ll also be happy to tell you, at least in
short form, about the others if you want to go into that.
MS. FEIGIN: Absolutely. But let’s start with Cointelpro, and for people who don’t know
what Cointelpro stands for, we should begin with that.
MR. STERN: That’s bureaucratic lingo for counter-intelligence program. Counterintelligence
is taking active steps to alter a situation. It’s not just gathering
information. It’s using information that you have to try to bring about a
result that you would prefer in a given situation. Okay, so that’s what we
mean by counter-intelligence. Let’s see if I can give you a short version of
this. In March of 1971, a group of antiwar activists in the Philadelphia area
broke into an FBI field office, in the suburb of Media, Pennsylvania and stole
documents they hoped would be embarrassing to the FBI and force the FBI
to stop surveilling them.
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MS. FEIGIN: It must be embarrassing to the FBI that their office could be broken into, just
for starters.
MR. STERN: Oh, you can bet on that. In any event, the activists then took the documents
that they had seized and sent them around to news organizations and to
members of Congress. Interestingly enough, because these were documents
which had been stolen, no question about it, members of Congress and the
news agencies were loath to use them. For example, Senator Kennedy was
given a set. He returned it to the FBI unread. The New York Times, The Los
Angeles Times did the same. They turned them over to the Bureau. Maybe
the recipients thought it was the appropriate thing to do and perhaps that’s
what their lawyers told them to do. In any event, one paper did not ignore
the documents. The Washington Post ran an article by reporter Betty
Medsger, who I sat next to at the Berrigan trial in Harrisburg, and who had
befriended the anti-war activists. Using the stolen documents, Betty
described how the Bureau attempted to unnerve the activists by making them
believe there was “an FBI agent behind every mailbox.” However, the Post
didn’t dig into what other activities might be revealed by a closer reading of
the files.
Fast forward a year. While waiting for an unrelated document at the
Senate Judiciary Committee, which I also covered, a staffer asked me if I had
ever seen the FBI files from Media? No, I had not. Thumbing through them
like reading a magazine in a dentist’s waiting room, I saw a caption on a
document that read “Cointelpro New Left.” Cointelpro? What is that?, I
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thought to myself. I looked at the document. It directed agents in the Media
field office to send anonymous letters to campus educators at colleges in the
vicinity – Swarthmore, Haverford, Villanova – articles and letters telling
them there were unpatriotic and un-American extremists on their campuses,
such as SDS, Students for a Democratic Society. Some of the letters
pretended to be from alarmed parents, urging the schools to kick these
organizations and members off their campuses.
MS. FEIGIN: Their own students.
MR. STERN: Yes. The “concerned” letter writers asked why these colleges were
recognizing SDS as a campus organization. Well, the word that caught my
attention, other than Cointelpro, was “anonymously.” Is that what FBI
agents do? I thought they were supposed to be the investigative arm of the
Justice Department. Agents are writing anonymous letters to urge action
against political organizations whose purposes they disagree with? Is that
what FBI agents do? By what authority? Quo warranto? One of the old
English writs, quo warranto. By what authority? And so I rushed off to the
Justice Department and started asking questions about it. I won’t tell you all
the times I asked in the months that followed, but I was not getting answers.
Nobody would tell me what Cointelpro New Left was.
At one point I went to lunch with Pat Gray, the acting FBI director after J.
Edgar Hoover died. I asked and Gray said he would look into it. He sent me
a letter, this note that I still have, that told me that it would be harmful to the
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Bureau’s operations and to national security if I persisted in asking about
Cointelpro New Left.
Shortly thereafter I saw in the local paper that the National Press Club had
joined hands with a Ralph Nader organization, the Center for the Study of
Responsive Law, to help reporters use the Freedom of Information Act. To
make a long story short, a neighbor of mine, Ron Plesser, now deceased, was
a lawyer with the Center. Alan Morrison was the boss. It was around
January 3, 1973 that I read this thing in the paper. I had Ron come over and
sit in my den and urged him to file a suit by the end of the month. He did –
January 31st. It went through all the denials, all the processes. But I’m
happy to say that by September, the judge, Barrington Parker, Sr., ruled in
my favor.
MS. FEIGIN: What was the case name?
MR. STERN: Stern v. Richardson. The FBI was absolutely beside itself at the thought that
this was all going to become public – an unauthorized, secret operation like
this. It urged Justice Department higher-ups to file an appeal. But someone
came riding to the rescue. You may be surprised to learn who it was. It was
the Acting Attorney General Robert Bork. Bork said, “No. We’re going to
lose this one,” he predicted. He did not approve taking an appeal.
MS. FEIGIN: Is that because he was the solicitor general and so determined whether the
government would appeal?
MR. STERN: No. When Elliot Richardson and Bill Ruckelshaus resigned in the Saturday
Night Massacre, Bork had become Acting Attorney General. He rejected the
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FBI’s plea as AG. In any event, on December 7th, a day that shall live in
infamy, I got four pages from the FBI, along with an affidavit that that’s all
there is. Well, those pages themselves reference other communications.
Again, just to jump ahead, I went back to Judge Parker the next day, and in
the long run we got 50,000 pages. It showed not only that there was a
Cointelpro New Left which was operating against the antiwar movement, but
also the civil rights movement, the labor movement, et cetera. The FBI
acknowledged that there had been seven Cointelpro operations, including one
against Black extremists, and another aimed at disrupting the SWP, the
Socialist Workers Party.
The SWP had sued the Justice Department and the FBI, claiming they
were harassing and interfering with its activities, but the SWP couldn’t prove
it. They went in front of Thomas Griesa, a judge in the Southern District of
New York, but their evidence was thin. And guess what? In the middle of
the case, along comes the papers we obtained showing, among other things,
that one of the seven Cointelpros the FBI was operating was the “SWP
Disruption Program.” Needless to say, the SWP prevailed before Judge
Griesa.
I don’t know that we have to go much further except to say that those
disclosures led ultimately to the Senate Church Committee hearings into the
excesses of the FBI and the CIA, and the Pike Committee, Otis Pike, in the
House, which was a parallel to Frank Church’s hearings in the Senate. It led
to the Levi Guidelines, which placed important limits on domestic security
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investigations, and even resulted in such things as the ten-year term for an
FBI director. That came out of those hearings. So our Cointelpro suit turned
out to be a very productive use of FOIA and one that is frequently cited for
that.
MS. FEIGIN: And you won an award for that, did you not?
MR. STERN: Well, they give you a lot of awards.
MS. FEIGIN: No, no, no. What award did you win?
MR. STERN: A Peabody I guess was the top one. That’s sort of broadcasting’s Pulitzer,
awarded by the University of Georgia.
Before we leave Cointelpro, I should tell you at least one other story, just
to show how weird things are. While Judge Parker had before him the issue
of these Cointelpro documents, he asked, as would be appropriate, to see
some. He insisted upon having a stack of them, which he then took home
and gave to his clerk to read over the weekend. It was a nice, warm
weekend. His clerk, who shall remain nameless for the moment, took the
documents with him when he went to the swimming pool [laughter] to read
by the pool – documents which were under seal, highly secret FBI
documents. Sometime later he returned to his apartment. The doorbell rang.
At the door was this pretty young woman saying, “Sir, you left these under
your seat at the pool” [laughter]. On top of that, there’s another twist to the
story. That young woman, that pretty young thing that brought the papers
back to the judge’s clerk, later became the clerk’s wife [laughter]. How’s
that for a back story?
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MS. FEIGIN: That’s a great back story.
MR. STERN: Okay, so Cointelpro was the biggie, but that wasn’t the only FOIA case. I
could mention a couple of others, but just in a sentence or two. I did win a
case, which is still much cited as a precedent, a case in the Court of Appeals.
I should tell you all four cases were heard in the District.
MS. FEIGIN: Let’s also mention the judges.
MR. STERN: Okay, in that case Pat Wald, Abner Mikva and Oscar Davis were the judges.
Davis was a judge on the Federal Circuit, sitting by designation. This was a
case in which some high-level FBI supervisors had been disciplined
internally for lying to Congress about black bag jobs. Black bag jobs are
cases where FBI agents would burgle a home, frequently the home of a
relative of a Weather Underground member. In other words, in trying to find
members of the Weather Underground, all of whom were in hiding, the FBI
might send agents into the home of a relative of theirs to see if there were
letters that had been received, or other evidence that might disclose where
these members of the Weather Underground were hiding. The Weather
Underground had, as we talked about in an earlier episode, engaged in
violent acts, and even experienced deaths of its own members at a bomb
factory that they had in Greenwich Village which blew up. In any event, the
FBI did engage in unlawful conduct, and these FBI supervisors had lied in a
congressional hearing about that fact. They were disciplined internally, but I
thought that the public had a right to know who they were. These were highlevel
people who were likely to rise even higher within the Bureau hierarchy.
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To make a long story short, I won most of the case. One of the individuals
was very high in the FBI and, as to him, the court said I had a right to know
who it was. As to two lesser officials who had been found in an FBI
disciplinary proceeding to be guilty only of negligence in their handling of
the information, the court said I was not entitled to their names. The court’s
reasoning was that the right of privacy of the lower-ranking officials
outweighed the public’s need to know who they were. We can argue about
that. But as to the larger principle, I did win and the case is frequently cited
in the literature of FOIA and its companion law, the Privacy Act.
MS. FEIGIN: What’s the name of that case?
MR. STERN: Stern v. FBI.
MS. FEIGIN: And who was the main person who was outed by the lawsuit?
MR. STERN: My recollection is that he was the agent in charge of the Chicago office. The
Chicago office was one of the biggest in the Bureau, I think the third largest.
MS FEIGIN: And what were your other two FOIA lawsuits?
MR. STERN: I won a suit involving the Small Business Administration, a case which,
again, was important in setting a precedent for FOIA. Some employees of
the SBA in the Philadelphia office had been disciplined within the
organization for using improper racial criteria for small business loans, and I
wanted to know who these people were. The Administrator didn’t want to
reveal this embarrassing story to the world and simply took the position that
as long as he didn’t sign off on the discipline, this was a matter in an interagency
process which was still cooking, and that I wasn’t entitled to
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information about it until it was over. Obviously, this just gave them license
to postpone the reckoning indefinitely – forever — and Judge Norma
Holloway Johnson said, no, no, you can’t simply label it pre-decisional and
avoid forever having to meet your obligations under the Freedom of
Information Act. That case too has been cited many times.
MS. FEIGIN: Do you remember the name of that case?
MR. STERN: Stern v. Small Business Administration. That was in 1980.
MS. FEIGIN: And your fourth FOIA case?
MR. STERN: You remember in 1986 there was a horrible booster failure of a Challenger
rocket and seven astronauts were killed?
MS. FEIGIN: Yes.
MR. STERN: There came a time when the Justice Department had to approve financial
settlements with the families. We were trying to get a handle on how much
the tragedy had cost the government and how well the families had been
treated. The government wouldn’t talk about it, citing the privacy rights of
the survivors. The case was before Judge Richey. He ruled that we were
entitled to know the figures in the aggregate, which was good enough for our
purposes. We didn’t need to know exactly what each family received.
MS. FEIGIN: What was that case name?
MR. STERN: NBC Inc., et al. v. DOJ.
MS. FEIGIN: You did quite well using the Freedom of Information Act.
MR. STERN: Not every time. I feel an obligation to tell you we didn’t always win
[laughter]. Sometimes it was very aggravating, and often infuriatingly slow
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for those of us in the daily news business. In fact, when I worked later at the
Justice Department, one of the most satisfying things I did, along with Dick
Huff and Dan Metcalfe in the office that deals with FOIA, was to get
expedited FOIA review put into the DOJ regulations so that cases that seem
to have some public urgency, or raise questions about the integrity of
Department officials, could be moved to the head of the line.
MS. FEIGIN: What length delays might one face?
MR. STERN: Do you remember that President Carter had a brother named Billy? Billy
went to visit Colonel Gaddafi in Libya, and rumor had it that Colonel
Gaddafi had given him a silver saddle as a gift. So I filed a FOIA with the
Treasury Department which handled the Customs stuff, wanting to know
whether he declared a silver saddle on his Customs form when he returned. I
did not get an immediate answer. In fact, I finally got an answer from the
Treasury Department twelve years after my request [laughter) by which time
Billy Carter was dead, Jimmy was building houses in Georgia, and who cared
anymore [laughter]? I recall the answer was that Billy did not declare a
saddle. But who knows if the rumor was true? It wasn’t worth pursuing
twelve years later.
That wasn’t my worst teeth-gnashing experience. In 1982, there was an
accident involving the Air Force aerial acrobatics team, The Thunderbirds,
which is used by the military as a recruiting tool. At an air show in Nevada,
four of the planes crashed and their pilots died. The Air Force customarily
records – in those days on film – the performances. I asked for the film. We
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had no intention of airing the moments of impact, but wanted to show what
preceded the accident. After I submitted an FOIA request for the film, the
Air Force officially responded that it didn’t exist. Then we learned that in a
civil suit in California that had been brought against a manufacturer of the
aircraft – specifically the manufacturer of the ejection devices – an Air Force
film had been submitted in court. So the Air Force could no longer claim it
didn’t exist. Well, to get to the end of the story, we were on the verge of
getting the film, literally the night before, when the general of the Tactical
Air Command, which existed in those days at Langley, the general himself,
in the presence of a sergeant, took the film and destroyed it. Now
technically, that’s a violation of law. Anything documenting a military
accident has to go to the Archives and to other agencies, but the federal
prosecutor in Norfolk, that’s where his office was, was not about to prosecute
this general. The Air Force and the Justice Department then moved
immediately to close the matter because the subject matter of our request –
the film – no longer existed. That’s what happened.
MS. FEIGIN: So how would you assess the effectiveness of the Freedom of Information
Act overall?
MR. STERN: Much of the time it works. The Freedom of Information Act is still a
valuable tool for knowing what the government is doing. Every state, and
many cities, have adopted their own FOIAs, sometimes called “open records
laws” or “government in the sunshine laws.” Overall, on a report card I’d
give our efforts at government transparency at least a B-plus.
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MS. FEIGIN: That’s pretty high and probably a good place to break, because next we’re
going to move to your DOJ career, and that’s a whole different area.