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Judge orders reporters to stop covering
for Justice Department in anthrax case
by Matt Apuzzo, Associated Press August 13, 2007
Five journalists must identify the government officials who leaked them details about a scientist under scrutiny in the 2001 anthrax attacks, a federal judge said Monday.
U.S. District Judge Reggie B. Walton ordered the reporters to cooperate with Steven J. Hatfill, who accused the Justice Department and FBI of violating the federal Privacy Act by giving the media information about the FBI's investigation of him.
The reporters named in the opinion are Michael Isikoff and Daniel Klaidman of Newsweek, Allan Lengel of the Washington Post, Toni Locy, formerly of USA Today, and James Stewart, formerly of CBS News.
Walton denied Hatfill's request to demand information from the media companies ABC, the Washington Post, Newsweek, CBS, The Associated Press, the Baltimore Sun and the New York Times.
Hatfill's attorneys want the reporters to reveal the identities of law enforcement officials who were cited anonymously in stories about the investigation. The journalists gave depositions under a court order but refused to reveal their sources, arguing that the First Amendment and a federal common-law privilege shield them from having to disclose the names.
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Commentary by Madeline Zane:
Yes, theoretically, it is really really bad that a court would force a journalist to give up their sources, and there will surely be some hand-wringing over this case by media critics.
But none of the mainstream discussions I've seen about this seem to make what seems to me to be an obvious distinction -- the distinction between a reporter protecting a source because that source is a whistleblower who could face reprisals, and a reporter protecting a source because that source is a powerful person in the government who wants to anonymously spread damaging, even untrue, information.
There is a fundamental difference between protecting the powerless from the powerful, and protecting the powerful's ability to squash the powerless. The laws protecting journalists were never meant to help them collude with the government to go after innocent people.
Once a reporter crosses that line from adversary to accomplice, they should lose the right to keep their sources confidential. At that point, is what they're doing even really journalism anymore?
Madeline Zane
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Walton disagreed. He said District of Columbia federal courts have historically denied a common-law reporter's privilege and said he would not "bring into being such a privilege."
Creating such a privilege in this case would have the "perverse effect" of handicapping a plaintiff whose good name was destroyed by government leaks, Walton said. The reporters' fear that testifying would chill the flow of information, Walton said, is outweighed by the Privacy Act lawsuit.
Five people were killed and 17 sickened by anthrax that was mailed to lawmakers on
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Capitol Hill and members of the news media in New York and Florida just weeks after the Sept. 11, 2001, terrorist attacks.
Hatfill, who worked at the Army's infectious diseases laboratory at Fort Detrick, Md., from 1997 to 1999, was publicly identified as "a person of interest" in the investigation by then-Attorney General John Ashcroft.
The case remains unsolved.
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