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Reporter subpoenas approved in anthrax suit

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  1. Protecting Sources and Materials

    News Media Update         WASHINGTON, D.C.         Confidentiality/Privilege    

Reporter subpoenas approved in anthrax suit

  • Federal judge approves the use of confidentiality waivers, reporter subpoenas in Hatfill lawsuit.

Oct. 28, 2004 — Instead of subpoenaing Department of Justice employees who may have leaked information about former Army bioterrorism expert Dr. Steven J. Hatfill, parties in the case before the U.S. District Court in Washington, D.C., could soon subpoena journalists. The court last week approved the subpoena of reporters and use of so-called “Plame waivers” of confidentiality by their sources. Attorneys for both Hatfill and the government approved of the subpoenas, but representatives of the media were not consulted.

Hatfill is suing U.S. Attorney General John Ashcroft and other government officials for publicly naming him a “person of interest” in the investigation into 2001 anthrax attacks that killed five people and sickened 17. The case has been hampered because the Department of Justice claims that submitting to Hatfill’s inquiries during the discovery phase of the trial would compromise the ongoing investigation into the attacks.

Judge Reggie B. Walton ordered Hatfill to give the defendants a list of relevant news articles and the government to prepare waivers of confidentiality to be circulated among Justice Department employees.

Hatfill’s attorneys touted the waivers as a compromise that would allow the case to go forward without interfering with the department’s criminal investigation, The New York Times reported.

Department attorney Elizabeth Shapiro said it must be clear that the waiver is voluntary. “There is a risk of compulsion if we don’t advise them that this is voluntary, ” she told the Associated Press.

Court documents filed by Hatfill refer to the confidentiality waivers as “Plame waivers.” Such waivers were used in the grand jury investigation into who leaked the identity of undercover CIA operative Valerie Plame last year. At least four subpoenaed journalists agreed to testify in that case after a government official to whom they spoke waived any interest in confidentiality.

Some media experts contend such waivers are not truly voluntary because anyone who refuses to waive confidentiality interests will be suspect.

Walton had previously approved subpoenaing reporters in the case in February, but Hatfill’s attorneys chose not to because of anticipated legal challenges from the media.

(Hatfill v. Ashcroft) GP

© 2004 The Reporters Committee for Freedom of the Press

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