NEWS MEDIA UPDATE · WASHINGTON, D.C. · Confidentiality/Privilege · April 6, 2007
Judge urges plaintiff in anthrax case to uncover sources
April 6, 2007 · A federal judge in Washington, D.C., has suggested that scientist Steven Hatfill find a way to compel several journalists to identify the confidential government sources who identified Hatfill as a “person of interest” in the 2001 anthrax attacks that killed five people.
Judge Reggie Walton — who also presided over I. Lewis “Scooter” Libby’s perjury trial — issued an order last week saying Hatfill “may, at his discretion, proceed with discovery” to find the source or sources at the Department of Justice and FBI who told reporters about the criminal investigation.
Hatfill sued then-Attorney General John Ashcroft and other government officials under the Privacy Act in 2003 after news reports named him as a “person of interest” in the anthrax investigations. Although he was never charged with any crime, Hatfill lost his job as a government contractor and says he has been unable to find employment since being identified in the investigation.
In February 2004, Walton first approved the use of news media subpoenas in Hatfill’s Privacy Act suit, but Hatfill’s attorneys declined, anticipating legal challenges by the media. In October 2004, Walton approved similar subpoenas again, and in December 2004, he ordered as many as 100 federal agents to waive any confidentiality agreements they had with the media. Beginning that month, a number of news organizations received subpoenas to provide documents and testimony in the case.
At least 13 subpoenas were served at that point. Four subpoenas were voluntarily withdrawn, but another nine subpoenas — served on ABC, CBS, NBC, The Associated Press, The Washington Post, Newsweek, Gannett Co., the Los Angeles Times, and former Baltimore Sun reporter Scott Shane — were contested. In May 2005, Hatfill voluntarily withdrew these subpoenas after the government made federal employees available as witnesses.
After the subpoenas were served again, reporters agreed to testify at depositions, but they refused to answer questions related to the names of sources or other confidential material. According to Walton’s most recent order, Hatfill has until April 16 to decide whether to move to compel that testimony.
If Hatfill decides to do so, the order grants him another 45 to 60 days to attempt to identify the people who allegedly leaked information about him to reporters.
Attorney Nathan Siegel said Walton’s language in urging Hatfill to compel disclosure of the sources was unusual because “the judge reached out to do something that he didn’t have to do” by “saying Hatfill would proceed at his peril if he chose to continue without the identity of the sources.” Siegel represents CBS reporter Jim Stewart.
Although the District of Columbia has a shield law that allows reporters to refuse to disclose the identities of their sources, the law will not apply because the case is in federal court. There is currently no federal shield law.
A separate defamation lawsuit filed by Hatfill against The New York Times in federal court in Virginia was dismissed in January.
(Hatfill v. Gonzales) — ES