The Internet on trial

The war on drugs, a powerful Mexican banker, and a libel suit add up to a big threat to independent online journalism

By Dan Kennedy

ASK AL GIORDANO about the theatrical possibilities of a high-profile libel suit that's been filed against him and his Web site, the Narco News Bulletin (www.narconews.com), and he responds that he's not going to talk about it.

But Giordano was, after all, a friend and acolyte of the late Abbie Hoffman -- not to mention an anti-nuclear activist and a Boston Phoenix political reporter in the mid 1990s. And he is being sued in New York City, the media capital of the world, for accusing a powerful Mexican banker of being a drug trafficker. Then there's the matter of his legal representation. Though Narco News is being defended by veteran progressive lawyer Tom Lesser, Giordano is representing himself.

In other words, look out. In a telephone interview from an undisclosed location in Latin America, Giordano makes it clear that he'd like nothing better than to confront his nemesis, Roberto Hernández Ramírez, not only about the issues at hand, but also about the entire misbegotten war on drugs.

"What I would prefer is that this be settled in the way we settle disputes over words in a democracy," says Giordano, who believes the only solution to the drug problem -- both at home and in the supplier nations of Latin America -- is to end prohibition. "We could grab a couple of soap boxes, head up to Union Square, and debate all the issues."

As for the trial itself -- assuming one ever takes place -- Giordano says, "I take the law very seriously, and am studying the court rules and will mount a very serious defense." But you can assume that he and Lesser plan to depose Hernández and a whole host of Mexican and US officials. At some point Hernández may find himself wondering what he ever got himself into.

On April 25, Lesser filed a motion with the New York state court system seeking to dismiss Hernández's libel suit against Narco News, a Web site Giordano launched

a year ago to cover the war on drugs in Latin America. For the past year, Giordano's been producing Narco News from "somewhere in a country called América," as he signs his dispatches, taking on powerful icons ranging from the New York Times and the Associated Press to the governments of the United States and Mexico.

Among the icons with whom Giordano has tangled is Hernández, the principal owner of Banco Nacional de Mexico, more commonly known as Banamex, which Hernández bought from the Mexican government in 1991. Last August, Hernández and Banamex sued Giordano, the Narco News Bulletin, and Mexican journalist Mario Menéndez Rodríguez, accusing them of libel, slander, and "interference with prospective economic advantage."

The reason: Giordano and Menéndez, both in interviews last year with the Village Voice and WBAI Radio and in a public appearance at Columbia University, charged that Hernández is a drug trafficker whose profits helped to finance the purchase of Banamex. Giordano also published those charges in Narco News.

Giordano and Lesser say their defense is based on the simple fact that the charges are true, and that they were found to be true in the Mexican courts. They say that Menéndez and the newspaper he publishes, Por Esto! ("That's Why!"), which has reported extensively on Hernández's alleged drug-trafficking ties, were sued by Hernández and Banamex in Mexico, and that Menéndez prevailed on two occasions, with a judge ruling that Por Esto!'s reporting was grounded in fact.

But Hernández's US lawyer, Thomas McLish, of the Washington, DC-based firm of Akin, Gump, Strauss, Hauer & Feld, counters that the charges against his client are false and have never been adjudicated in the Mexican courts.

"Their claims are not only untrue, but absurd, and they know it," McLish says in a written statement provided to the Phoenix. "The assertion that a Mexican court has already found the statements to be true is simply wrong. The Mexican courts have never ruled that these accusations are true or are supported by facts." The Mexican case, McLish adds, was "eventually dismissed ... on technical points of Mexican law, without ever addressing truth or falsity."

This case is an important one, involving as it does questions of free speech in the Internet age, the consequences of the war on drugs, and the role of high-profile, well-connected lawyers.

First, though, a few notes of disclosure. This story involves enough entangling media alliances that it could be accompanied by footnotes. To wit:

* I worked with Giordano during his stint at the Phoenix, and was his immediate editor during his first year as the paper's political reporter.

* Giordano continues to write occasionally for the Phoenix -- including, most recently, a dispatch from Mexico on the motorcade by the Zapatista rebels led by the mysterious Subcomandante Marcos (see "Rebel Rainmakers," Boston Phoenix, March 9), an event he covered for the Nation as well.

* A year before he started Narco News, Giordano wrote about the drug-trafficking accusations involving Hernández and Banamex for the Phoenix, carefully -- and accurately -- attributing those accusations to the reporting of Por Esto! (see "Clinton's Mexican Narco-Pals," Boston Phoenix, May 14, 1999).

THE CASE against the Narco News Bulletin was first reported last December by the Village Voice, and has since attracted the attention of the Boston Globe as well. Giordano was also interviewed recently on The David Brudnoy Show, on WBZ Radio (AM 1030).

No doubt Giordano's status as a well-known activist has something to do with the attention he's getting, but there also are some fascinating subplots.

The first is the battle of the lawyers. Northampton-based Tom Lesser, of Lesser, Newman, Souweine & Nasser, is highly regarded in leftist circles, having represented war-tax resisters and anti-nuclear protesters, including Giordano. Lesser recalls meeting Giordano for the first time about 20 years ago, after Giordano and other protesters had been arrested outside the Seabrook nuclear power plant in New Hampshire -- for a legal defense that included a Sunday-morning conference with future Supreme Court justice David Souter. Lesser also represented Abbie Hoffman and Amy Carter in 1987, after they were arrested for protesting CIA recruitment at UMass Amherst.

McLish, Hernández's lawyer, is part of a firm whose partners include Democratic grandees Vernon Jordan and Robert Strauss. And for good measure, Menéndez is being defended by First Amendment lawyer Martin Grabus, whose client list includes Lenny Bruce and Timothy Leary.

The case also involves some vital free-speech issues. With the mainstream media increasingly concentrated in the hands of fewer and fewer corporate owners, the Internet is a crucial outlet for independent media projects such as Narco News. But Giordano's very independence makes him vulnerable to the wealth of a banker such as Hernández and a law firm such as Akin, Gump.

"Even if the charges are preposterous, the fact that he has to divert resources, time, and energy -- it deflects you from your work, and it displaces you from your energy, time, and effort," says Danny Schechter, an old friend of Giordano's who is executive editor of the Media Channel, a progressive nonprofit watchdog site (www.mediachannel.org). "It becomes a noose around your neck. It makes it harder to do your work, and it makes it harder to find allies."

Adds Schechter, best known in Boston for his years as the "News Dissector" on the old WBCN Radio in the 1970s: "I admire Al. He's one guy taking on the whole drug war."

Trouble is, it's a lot easier for the likes of Roberto Hernández to crush one guy than it would be to take on a major media organization. Just ask Matt Drudge, whose online Drudge Report (www.drudgereport.com) several years ago slimed then-White House aide Sidney Blumenthal with a false story that Blumenthal had physically abused his wife. Drudge pulled the story and apologized almost immediately, but Blumenthal has continued to push a $30 million libel suit against Drudge, which critics charge is motivated more by his desire to harass a persistent Clinton enemy than to clear his name. (Yet another disclosure: the Washington Post reported last November that my name was on a list of witnesses whom Blumenthal intended to depose in an effort to track down Drudge's sources. To date I have not been contacted by any of the parties in the suit.)

Another relevant example is that of Brock Meeks, whose pioneering CyberWire Dispatch (www.cyberwerks.com/cyberwire) was sued by a telemarketing firm in 1994 after Meeks claimed the firm was engaged in a "scam." Meeks ended up settling without admitting any liability or falsehoods, and paid for his legal representation through an on online defense fund that raised some $10,000 to $15,000.

"The thing that I learned is that if you're going to be a cowboy, you have to be really prepared to endure all that comes with that," says Meeks, now the chief Washington correspondent for MSNBC.com. "The frightening thing is when you learn just how alone you are. It's very tough unless you've got a deep-pockets publisher behind you."

The issues in Hernández's suit against Al Giordano, Mario Menéndez, and Narco News are complicated, and involve Menéndez and his newspaper, Por Esto!, more directly than they do Giordano. In a series of articles, Por Esto! reported that coastal properties purchased by Hernández in the late '80s and early '90s were used to deliver large volumes of Colombian cocaine; from there, the drugs were allegedly flown into the United States from Hernández's private airfield. Por Esto! also reported that Hernández used resorts he owned to launder drug money. Although Giordano reports that he's done some checking of his own, his involvement was largely limited to repeating Por Esto!'s charges in interviews, at the Columbia University appearance, and in the Narco News Bulletin.

The truth of Por Esto!'s reporting will be determined in court -- assuming the case ever gets far enough to go to trial, a process that Tom Lesser estimates could take several years.

But to the extent that Giordano's own reputation is at issue, one indication of his reliability may be gleaned from a piece Narco News published last October. According to Narco News, Associated Press reporter Peter McFarren had lobbied the Bolivian Senate on behalf of a $78 million water project from which he would have indirectly benefited. Not long after Giordano's story was published, McFarren resigned.

Washington Post media reporter Howard Kurtz, who reported on McFarren and on Giordano's role, told me, "Giordano's reporting on the serious conflicts of an AP reporter in Bolivia was right on the mark and well-documented in my view. The AP was slow to acknowledge Giordano's basic point -- that its reporter could not lobby the Bolivian legislature and continue to function as a journalist -- but the wire service ultimately distanced itself from its former correspondent, thus underscoring that Giordano hit the bull's-eye."

Among Giordano's supporters is Gary Webb, whose "Dark Alliance" series for the San Jose Mercury News several years ago -- reporting that the CIA looked the other way while its right-wing clients in Nicaragua raised money by selling cocaine that helped touch off the US crack epidemic -- created a national sensation.

Webb's experience shows what Giordano may be up against. After the New York Times, the Washington Post, and the Los Angeles Times all published long series suggesting that Webb may have overreached, the Mercury apologized, leading to Webb's departure from the paper. He later expanded on his story and wrote about his own experience in Dark Alliance: The CIA, the Contras, and the Crack Cocaine Explosion (Seven Stories, 1998).

In a letter posted on Narco News, Webb compares his situation to Giordano's, saying, "Make no mistake. This court fight isn't about any particular story Narco News has done. It's about ALL of them, and all of the ones yet to come. And it's a battle over the continued independence of Internet journalism as well."

LAST WEEK, a celebration was held to commemorate the first anniversary of the Narco News Bulletin. The MC for the event was humorist and social activist Barry Crimmins, whose Web site (www.barrycrimmins.com) runs an amusing parody called "Where's Al?", about Giordano's efforts to avoid having papers served on him in the Hernández lawsuit.

"The thing that I think Al and I really have in common, and what I think his friend Abbie Hoffman probably spotted as well, is that Al has always understood that you have to have fun," Crimmins says. Not that Crimmins doesn't see the seriousness in Giordano's situation. "If they can get Al, they can get the rest of us," he says. "I'm proud to be part of this one. This is a great one."

Giordano says it's not quite accurate for Crimmins to suggest that he tried to prevent Hernández's lawyers from serving papers on him. "I never intended to evade service. I've never run from a fight in my life," he says, offering as proof the fact that he did, after several months, step forward and accept his role as a party to the suit. But, he adds, "The law doesn't require me to stop what I'm doing to facilitate anyone serving me papers. I'm not going to march to their rhythm, their drums, and their case."

Giordano is trying to move forward. These days he's focusing considerable attention on the Peruvian election. Narco News has reported that the United States withdrew its support for the previous dictatorial president, Alberto Fujimori, because Fujimori opposed US intervention in Colombia. Now it appears that Alan Garcia, a progressive who also opposes Plan Colombia, may win back the presidency he once held. On Tuesday of this week, the Bulletin published photos purporting to show US Marines in Peru above the headline WILL WASHINGTON ACCEPT DEMOCRACY IN PERU?

At the same time, however, Giordano acknowledges that the lawsuit could wear him down and interfere seriously with his mission.

"It is possible that Narco News ceases publication of new stories because I am converted into a full-time pro se defendant," he told me in an e- mail exchange. "But what is already published on Narco News will remain on the Internet. That is my vow. If it has to go to a thousand mirror sites, or reconstitute itself in anothernews.com from an offshore server, well, the Internet also provides those options."

You don't have to form an opinion about the Banamex lawsuit to see the Narco News Bulletin for what it is: a passionate, occasionally funny, and important extension of Al Giordano himself, a passionate, occasionally funny activist who has important things to say.

It would be a damn shame if legal woes end up silencing Narco News. But I suspect that silencing Giordano himself would be an utter impossibility.

Dan Kennedy can be reached at dkennedy[a]phx.com. Anyone who wishes to contribute to the legal defense of the Narco News Bulletin may send a check made out to "Drug War on Trial," which should be mailed to 39 Main Street, Northampton, MA 01060. For more information, contact Giordano by e-mail at narconews@hotmail.com.