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U.S. Agrees to Waivers in Hatfill Suit

Officials Could Free Reporters From Confidentiality Promises

By Carol D. Leonnig
Washington Post Staff Writer
Friday, October 22, 2004; Page A09

Attorneys for former Army scientist Steven J. Hatfill won the federal government's agreement yesterday to a plan that could speed the questioning of journalists about the source of leaks in the massive anthrax investigation.

The Justice Department agreed to present "voluntary" waivers to specific Justice and FBI employees, who can then choose whether to release reporters from their promises of confidentiality so they can talk to Hatfill's attorneys.

Steven J. Hatfill says he has been defamed in the anthrax probe.

Hatfill's attorneys have been attempting to track the reporters' sources as part of a lawsuit accusing Attorney General John D. Ashcroft and other federal officials of defamation. The suit accuses federal authorities of tarnishing Hatfill with public statements and private leaks that described him as a "person of interest" in the investigation into the anthrax-laced mailings that killed five people and sickened 17 others in late 2001.

U.S. District Judge Reggie B. Walton said Hatfill deserves a thorough investigation of his claim that top federal law enforcement officials illegally leaked information about him. Hatfill, a physician and bioterrorism expert, has not been charged with a crime and has repeatedly denied any wrongdoing.

Although the lawsuit was filed last year, it has been stalled by the judge, who agreed to Justice Department requests to delay the questioning of federal officials. The government has argued that the questioning would jeopardize the sensitive and ongoing anthrax investigation.

Walton agreed in February to permit the questioning of reporters. But Hatfill's attorneys said they did not make an effort to do so because, without waivers freeing reporters of confidentiality agreements, they expected an expensive legal battle with news organizations. The judge urged the government to strike a compromise on that issue with Hatfill's attorneys.

Justice Department attorney Elizabeth Shapiro told the judge that the government was making an "extraordinary concession" and said she wanted to be sure employees knew that they were under no obligation to sign the waivers, which are expected to be presented to them in November.

Even without the waivers, Hatfill's attorneys could press to question reporters. And journalists could challenge any bid to force them to name their sources.

Journalists and free-speech advocates yesterday decried the maneuver as an attack on the public's right to know and news organizations' right to gather information from confidential sources. They said government employees who choose not to sign the waivers would have reason to fear being fired or viewed as suspect. They maintained that reporters should be questioned only as a last resort in a civil suit about government leaks and that, in this case, the government should be answering questions.

"There's a full frontal assault on the First Amendment and the press," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "The government is saying, 'We won't give you what you want, but we'll make it possible for the media to violate all of their fundamental principles.' There's something wrong with this picture."

The Hatfill case marked the third time in a year that a judge at the federal courthouse in Washington has ordered or approved the questioning of journalists.

Chief Judge Thomas F. Hogan ordered several reporters in recent months to answer a special prosecutor's questions about whether Bush administration officials knowingly leaked the identity of CIA operative Valerie Plame. Hogan found two journalists in contempt of his order, and they face jail time. They are appealing.

Some reporters ultimately agreed to answer limited questions about their private talks with one senior official, Vice President Cheney's chief of staff, I. Lewis "Scooter" Libby, after he waived their confidentiality agreements as they related to questions about Plame.

In a separate civil suit, Judge Thomas Penfield Jackson ordered journalists last year to answer questions concerning their conversations with government officials about a spy investigation targeting former Los Alamos Nuclear Laboratory scientist Wen Ho Lee. Jackson ruled that reporters were a last-resort option, after dozens of government officials questioned under oath denied knowing anything about leaks of private information about Lee or his family.

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