By Carol D. Leonnig
Washington Post Staff Writer
Tuesday, August 14, 2007
Five reporters must reveal their government sources for stories they wrote about Steven J. Hatfill and investigators' suspicions that the former Army scientist was behind the deadly anthrax attacks of 2001, a federal judge ruled yesterday.
The decision from U.S. District Judge Reggie B. Walton is yet another blow to the news industry as it seeks to shield anonymous sources who provide critical information -- especially on the secret inner workings of government.
"The names of the sources are central to Dr. Hatfill's case," Walton wrote in a 31-page opinion.
The ruling is a victory for Hatfill, a bioterrorism expert who has argued in a civil suit that the government violated his privacy rights and ruined his chances at a job by unfairly leaking information about the probe. He has not been charged in the attacks that killed five people and sickened 17 others, and he has denied wrongdoing.
Hatfill's suit, filed in 2003, accuses the government of waging a "coordinated smear campaign." To succeed, Hatfill and his attorneys have been seeking the identities of FBI and Justice Department officials who disclosed disparaging information about him to the media.
In lengthy depositions in the case, reporters have identified 100 instances when Justice or FBI sources provided them with information about the investigation of Hatfill and the techniques used to probe his possible role in anthrax-laced mailings. But the reporters have refused to name the individuals.
The decision means that five journalists -- Allan Lengel of the Washington Post; Michael Isikoff and Daniel Klaidman, both of Newsweek; Toni Locy, formerly of USA Today; and James Stewart of CBS News -- are under instruction from the court to answer specific questions about who provided them with information about the investigation's focus on Hatfill.
The judge turned down a companion bid by Hatfill to subpoena testimony from corporate representatives and records from ABC, The Washington Post, Newsweek, CBS, the Associated Press, the Baltimore Sun and the New York Times. He said he would reconsider the ruling on the media companies if the reporters continue to refuse to reveal their sources.
In 2002, then-Attorney General John D. Ashcroft called Hatfill, who had formerly worked at the Army's infectious diseases lab in Fort Detrick in Frederick County, a "person of interest" in the anthrax case. Authorities have not made any arrests in the investigation.
Walton declined to recognize the existence of a federal common law privilege for reporters. Also, the judge broadly defined the kinds of information that, if released, would violate the Privacy Act to include almost anything specific to Hatfill and suspicions about him. Media lawyers argued the Privacy Act was not intended to apply to the information they reported about Hatfill.
Walton said Hatfill's search for government leakers is "strikingly similar" to the civil suit filed by Wen Ho Lee, a nuclear scientist who became the subject of a flurry of media stories identifying him as a chief suspect in a nuclear-secrets spy case. Those stories also relied on anonymous sources. Lee was never charged with espionage; he pleaded guilty to mishandling computer files. He sued the Justice Department, and reporters were facing a court order to reveal sources. But the case ended last year when the news companies and the government paid Lee a $1.6 million settlement .
Lucy Dalglish of the Reporters Committee for Freedom of the Press said the Hatfill case probably will have "horrifying" repercussions on the ability to report on the government's handling of public health crises.
"It may be that Mr. Hatfill was done wrong by the federal government," Dalglish said. "But these reporters were just trying to inform the public about whether the government had a clue about what was happening."
Washington Post Deputy Counsel Eric Lieberman said it would not be appropriate to comment on the ruling at this point in the proceedings.