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FC: Transcript of my testimony in U.S. v. Jim Bell trial
From: Declan McCullagh <declan () well com>
Date: Sun, 25 Nov 2001 16:54:22 -0500
In early 2001, the Department of Justice served me with a subpoena to testify in U.S. v. Jim Bell, an Internet essayist I had written about and who was charged with stalking federal agents. I filed a motion to quash the subpoena but the judge did not grant it. A transcript of my testimony (thanks to John Young), where prosecutor Robb London asked that I be declared a hostile witness, is now available below. Other documents related to my unsuccessful attempt to quash the subpoena: http://www.mccullagh.org/subpoena/ Background on the U.S. v. Jim Bell trial: http://www.cluebot.com/search.pl?topic=ap-politics -Declan --- http://www.mccullagh.org/subpoena/transcript.112501.html 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 2 AT TACOMA 3 4 UNITED STATES OF AMERICA, ) Docket No. CR00-5731JET ) Court of Appeals No. 01-30303-00 5 Plaintiff, ) ) 6 v. ) ) Tacoma, Washington 7 JAMES DALTON BELL, ) April 3, 2001 ) 8 Defendant. ) ) 9 10 VOLUME 1 TRANSCRIPT OF TRIAL 11 BEFORE THE HONORABLE JACK E. TANNER SENIOR UNITED STATES DISTRICT JUDGE, and a Jury 12 13 APPEARANCES: 14 For the Plaintiff: ROBB LONDON Assistant United States Attorney 15 601 Union Street, Suite 5100 Seattle, Washington 98101 16 For the Defendant: ROBERT M. LEEN 17 Attorney At Law Two Union Square 18 601 Union Street, Suite 4610 Seattle, Washington 98101-3903 19 20 21 Court Reporter: Julaine V. Ryen Post Office Box 885 22 Tacoma, Washington 98401-0885 (253) 593-6591 23 24 Proceedings recorded by mechanical stenography, transcript 25 produced by Reporter on computer. [...] 1 DECLAN MCCULLAGH, PLAINTIFF'S WITNESS, SWORN 2 THE CLERK: Please state your full name and spell your 3 last name. 4 THE WITNESS: My name is Declan McCullagh. The last 5 name is spelled M-c-C-u-l-l-a-g-h. 6 DIRECT EXAMINATION 7 BY MR. LONDON: 8 Q. Mr. McCullagh, can you begin by telling the jury how you are 9 employed presently? 10 A. Certainly. My job is the Washington Bureau Chief for Wired 11 News. 12 Q. And were you -- I take it you function as a reporter, is 13 that correct? 14 A. Yes. 15 Q. Were you employed in that capacity back on April 14th of 16 2000? 17 A. Yes. 18 Q. And are you the author of an article that appeared in Wired 19 News on April 14th, 2000, that discussed or involved James 20 Dalton Bell, the defendant here today? 21 A. Yes. 22 Q. Can you please turn to the binder to your right that would 23 include Exhibit No. 100. And can you open to that exhibit and 24 tell us if you recognize what that is? 25 A. Could you repeat the question? 44 1 Q. Yes. Could you look at Exhibit 100, and can you tell the 2 members of the jury if you recognize what that is? 3 A. It appears to be a copy of an article I wrote. 4 Q. All right. Now -- 5 MR. LONDON: We offer 100, Your Honor. 6 MR. LEEN: Objection, Your Honor. Newspaper article. 7 Hearsay. 8 MR. LONDON: It contains an admission by the defendant. 9 THE COURT: Did he write it? 10 MR. LEEN: This witness wrote it. 11 THE COURT: Are you offering the whole exhibit or are 12 you offering excerpts? 13 MR. LONDON: Well, all right, Your Honor. Fair 14 enough. 15 Q. (By Mr. London) Let me ask you this, Mr. McCullagh. There 16 are quotations in that article attributed to Mr. Bell, correct? 17 A. Yes. 18 Q. All right. And can you tell the members of the jury if 19 those quotations accurately reflect what Mr. Bell told you in an 20 interview that was done in preparation for that article? 21 A. I don't recall. 22 Q. So, I'm sorry, is it your testimony that you publish things 23 without verifying the accuracy or checking your notes to see if 24 in fact it reflects what someone has told you in an interview? 25 A. No. 45 1 Q. All right. Where it says that McCullagh stated in the 2 article that Bell plans to exact revenge on the system that 3 imprisoned him, did Mr. Bell tell you something to that effect? 4 A. Where in the article, please? 5 Q. In Exhibit 100. 6 A. What paragraph? 7 Do you mean the second paragraph? 8 Q. Correct. "... he plans to exact revenge on the system that 9 imprisoned him." 10 A. What is your question? 11 Q. Did Mr. Bell tell that to you? 12 A. I don't recall. 13 MR. LONDON: Your Honor, I want to declare the witness 14 to be a hostile witness. 15 THE COURT: Ask the question again. 16 Q. (By Mr. London) Please turn to Exhibit 229. It will 17 probably be in a different binder. 18 A. I have it. 19 Q. All right. Turn to the second page of that article, and 20 could you look at the fourth paragraph down, the one that 21 begins, "Bell says that he's put" Assassination Politics on 22 hold. 23 A. I see it. 24 Q. All right. And where it says that he acknowledges that he 25 has shown up at the homes of suspected BATF agents. Do you see 46 1 that there? 2 A. I do see that, yes. 3 Q. And has done DMV searches on their names. 4 A. I see that there, sir. 5 Q. All right. Does that reflect something that Mr. Bell 6 actually told you? 7 A. I don't recall him saying that. I don't put things in 8 articles unless people tell me things, but I do not have an 9 independent recollection at this point that that's particularly 10 explicitly what he said. 11 MR. LONDON: Your Honor, we offer 229. 12 MR. LEEN: Objection, Your Honor. 13 THE COURT: Will the jury please go to the jury room 14 for a moment. 15 (Jury excused; 3:36 p.m.) 16 THE COURT: Let me see it. 17 Where are you referring to, counsel? 18 MR. LONDON: In Exhibit 229, Your Honor, there are 19 really two statements that I have -- that I wish to elicit from 20 this foundation testimony. 21 THE COURT: Where are they? 22 MR. LONDON: The very last paragraph on the first page, 23 "For Bell, that meant spending the last six months compiling 24 personal information ..." The last paragraph on the first 25 page. 47 1 And then the fourth paragraph on next page. The witness has 2 already testified to that one. I can ask him -- 3 THE COURT: Well, he already testified to which one? 4 MR. LONDON: The second one. If I can ask him about 5 the first one, the one on the first page, then I -- 6 THE COURT: Well, the first one is not in quotes. 7 MR. LONDON: Well, it's a statement attributed to -- 8 THE COURT: It's not in quotes. 9 MR. LONDON: Correct. 10 THE COURT: Right? 11 MR. LONDON: Right. 12 THE COURT: So what in quotes are you asking him? 13 MR. LONDON: Well, I'm asking him if the statement -- 14 and it's not in quotes, but the first one, where it says, "that 15 meant spending the last six months compiling personal 16 information," if that reflects a statement that was made by the 17 defendant to Mr. McCullagh. 18 THE COURT: Didn't he answer that he doesn't recall? 19 MR. LONDON: Not as to that one, Your Honor. I haven't 20 asked him about that one yet. 21 THE COURT: Okay. So what other one is in dispute? 22 MR. LONDON: Just that one. That's the only one I have 23 to ask him about in this exhibit. 24 THE COURT: That's the only one you still have to ask 25 him, right? 48 1 MR. LONDON: Yes. I'm going to ask him if that 2 attributed statement accurately reflects what Mr. Bell told him 3 at the time. If I can ask him that, then I will not seek to 4 offer the entire exhibit. 5 THE COURT: Let's ask him now out of the presence of 6 the jury. Ask him the question. 7 Q. (By Mr. London) Mr. McCullagh, that statement at the bottom 8 of the first page, "For Bell, that meant spending the last six 9 months compiling personal information about IRS and Bureau of" 10 ATF agents, does that accurately reflect something that Mr. Bell 11 would have said to you in the interview? 12 A. I don't recall him explicitly saying that. 13 Q. But is your answer the same, that it is your practice to 14 accurately attribute statements to people based on what they 15 tell you? 16 A. Yes. 17 Q. All right. 18 MR. LONDON: That's all I want to seek from him. 19 THE COURT: All right. Bring the jury. 20 (Jury present; 3:40 p.m.) 21 THE COURT: Jury has returned. 22 What's the question, counsel? 23 Q. (By Mr. London) Mr. McCullagh, returning to Exhibit 229, 24 and turning your attention to the last paragraph on the first 25 page, the one that says, "For Bell, that meant spending the last 49 1 six months compiling personal information about IRS and Bureau 2 of Alcohol, Tobacco, and Firearms agents, a move that appears to 3 have led to the six-hour search of his home in Vancouver, 4 Washington." Does that paragraph accurately reflect a statement 5 made to you by Mr. Bell in the course of an interview? 6 A. I don't recall that, sir. 7 Q. All right. But is your answer the same as before, that it 8 is your practice ordinarily to accurately state in your articles 9 what someone you have recently interviewed has told you? 10 A. Yes. 11 Q. All right. Turning your attention to Exhibit 100. That's 12 the April 14th, 2000, article that you published. There is a 13 statement, I turn your attention to the second full paragraph of 14 the article, in quotes, "'If they continue to work for the 15 government, they deserve it. My suggestion to these people is 16 to quit now and hope for mercy,'" comma, quote, "the 41-year-old 17 Washington state native said in a telephone interview this 18 week..." 19 Did you write that quote? 20 A. Yes, I wrote that quote. 21 Q. And was that quote based on a statement that Mr. Bell made 22 to you in a telephone interview? 23 A. I don't recall if that was the exact statement he gave me. 24 Q. All right. So, once again, though, is it your practice to 25 accurately attribute things in quotations based on your best 50 1 memory of what someone has said to you? 2 A. Yes. 3 Q. All right. 4 MR. LONDON: Nothing further, Your Honor. 5 THE COURT: Cross-examination. 6 MR. LEEN: Thank you, Your Honor. 7 CROSS-EXAMINATION 8 BY MR. LEEN: 9 Q. Mr. McCullagh, have you also spoken to Agent Jeffrey Gordon? 10 A. Sir, I most respectfully decline to answer that question. 11 I'm citing my First Amendment privileges as a journalist. 12 Q. Referring your attention to the April 14th, 2000, 13 interview. Do you have that? I think that was No. 100. 14 A. I have it in front of me, yes. 15 Q. On the second page, 2 of 4, the third paragraph down, it 16 says, "IRS inspector Jeff Gordon, who now regularly monitors the 17 cyberpunks mailing list, took it personally ..." 18 How did you become aware of that information, sir? Did 19 someone tell you that? 20 A. If you look at that paragraph carefully, you'll see that 21 there are two links. These are web links. You can click on 22 them. They are also called hyperlinks. The second one uses -- 23 that is linked to the word "likening." 24 Q. Yes, sir. 25 A. Goes to what I recall is an affidavit submitted by Jeff 51 1 Gordon, who is, of course, here in this room today. And so that 2 is based on the affidavit that is part of the public record. 3 Q. All right. And that's where you derived that piece of 4 information? 5 A. I don't recall. I presume so. 6 Q. Referring to Exhibit, I believe it was, 229, the November 11 7 article. 8 A. I have it in front of me. 9 Q. Referring on the first page to the third paragraph, starting 10 with the quotation, "'They're basically trying to harass me,'" 11 close quote, "Bell said in a telephone interview." In an 12 article that you write, if you put something in quotes, should 13 the reader rely on the fact that you, to the best of your 14 ability, are putting down exactly what the person said? 15 A. Yes. 16 Q. Did Mr. Bell tell you that he felt he was being harassed by 17 the government? 18 A. From this article, it certainly looks that way, yes. I 19 believe that is what the article says. 20 Q. On the second page of that same article, page 229 -- and 21 this is an article dated November 11th, 2000. On the second and 22 third paragraph from the end. 23 A. I see it. 24 Q. It says, in quotes, "'I am thinking very strongly of 25 picketing (IRS Agent) Jeff Gordon's house. I don't intend to 52 1 violate any laws when I do that. It's conceivable that they 2 won't appreciate my picketing their house,'" close quote, "Bell 3 says." 4 Again, I ask you, you put those statements attributed to Mr. 5 Bell in quotes. To the best of your ability, was that an exact 6 quote? 7 A. Yes. 8 Q. An exact statement that Mr. Bell made? 9 A. Yes. 10 Q. All right. The next paragraph is in quotes, also. It says, 11 "'I wasn't [at] all that happy before, but I'm hopping mad,'" 12 and then it trails off, dot dot dot. "'If you think this is 13 going to stop me, baloney,' he says. 'Needless to say I'm 14 feeling very hostile. But I don't intend to violate 15 black-letter Oregon law.'" 16 Again, that paragraph was in quotes. The fact that that 17 part of the article was in quotes, again, was that your best 18 ability to convey to the reader what you were told by Mr. Bell? 19 A. Yes. 20 Q. All right. Had Mr. Bell complained to you that he was 21 compiling evidence of illegal government surveillance against 22 him at other times that you interviewed him? 23 A. Sir, that is outside the scope of the article, and I must 24 respectfully decline to answer that question based on my First 25 Amendment privilege as a journalist. 53 1 Q. Did you write an article on November 21st, "Cyber-Terrorist 2 Jailed Again"? 3 A. I believe I may have. I don't know if that's the date. I 4 don't have that article in front of me, nor was I required to 5 bring it. 6 Q. Do you -- do you recall writing in such an article, "Bell 7 claimed he was compiling evidence of a government conspiracy to 8 conduct illegal surveillance against him and unlawfully bug his 9 home." Quote, "'One guess is that I was getting a little too 10 close to these people,'" close quote, "Bell said." 11 A. I have not had a chance to review that article. I do not 12 have it in front of me, nor do I recall that. 13 Q. Do you recall Bell also saying, "The double standard" -- 14 quote, "'The double standard here is simply incredible,'" close 15 quote. Quote, "'They simply don't like the idea that Jim Bell 16 can simply look through a few databases, find one of their 17 people and publish the name on the Internet. They hate that.'" 18 Do you recall writing that or something like that in one of 19 your articles on November 21st? 20 A. I don't recall the defendant using those exact words. If 21 it's in my article, I presume it's as accurate as I could make 22 it. 23 Q. Are you a member of the Cypherpunks mail list? 24 A. Sir, again, that is outside the scope of this article. My 25 membership is outside the scope of this article, or lack of 54 1 membership, and I must respectfully decline to answer that 2 question, citing my First Amendment privilege as a journalist. 3 MR. LEEN: One moment. 4 Q. (By Mr. Leen) Are you aware of the person named Eric Hughes 5 who wrote the Cypherpunks Manifesto? 6 THE COURT: You're way outside the direct, counsel. 7 MR. LEEN: No further questions, Your Honor. Thank 8 you. 9 THE COURT: Any redirect? 10 MR. LONDON: Very briefly. One question. 11 REDIRECT EXAMINATION 12 BY MR. LONDON: 13 Q. I neglected to ask you this, but again, in Exhibit 100, on 14 page 2 of 4, if you would turn your attention to the very next 15 to the last paragraph. 16 A. Yes. 17 Q. "Bell repeatedly claims that he won't break the law 18 himself." Quote, "'I'm" not going to kill them off,' he said. 19 'Other people are going to do that. I'm going to promote a 20 system.'" 21 Does that quotation accurately reflect what Mr. Bell told 22 you? 23 A. I do not recall. 24 MR. LONDON: Thank you, Your Honor. 25 THE COURT: Redirect -- recross, I'm sorry. 55 1 MR. LEEN: Thank you, Your Honor. 2 RECROSS-EXAMINATION 3 BY MR. LEEN: 4 Q. Mr. McCullagh, the same article. Do you recall writing in 5 that article that in reference to that system Mr. Bell was 6 talking about, that Laissez Faire City Times has published a 7 copy of the essay and called it "a thought experiment on one of 8 the consequences of the digital society"? 9 THE COURT: You're outside the redirect, counsel. 10 MR. LEEN: Thank you, Your Honor. No further 11 questions. 12 THE COURT: The witness may be excused. 13 THE WITNESS: Thank you. 14 (Witness excused.) 15 THE COURT: Next witness. [...] ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if you include this notice. Declan McCullagh's photographs are at http://www.mccullagh.org/ To subscribe to Politech: http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ -------------------------------------------------------------------------
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