Reporting in the wake of Hatfill

From the Fall 2008 issue of The News Media & The Law, page 31.

This summer saw two headline-grabbing developments in the seven-year-old anthrax investigation: In late June, the Justice Department reached its $5.8 million settlement with Dr. Steven Hatfill over his Privacy Act lawsuit. Weeks later, The Los Angeles Times broke the news that a onetime colleague of Hatfill’s, Bruce Ivins, was the government’s prime suspect in the deadly 2001 attacks, and that he had killed himself in the face of imminent murder charges.

What all of this means for former USA Today reporter Toni Locy, who landed in contempt of court for her refusal to out the confidential sources she used in 2002 when Hatfill was the target of the inquiry, remained an open question in late October. But the broader impact of Hatfill’s experience on news, generally, and the impact of his lawsuits on journalists and sources in particular, can be glimpsed in how Ivins was treated.

Ivins stayed off the front pages far deeper into the investigative process than Hatfill did. When Hatfill’s apartment was searched, for instance, reporters were quick to report it. Warrants were served at least twice in the past year on the Ivins family home in Frederick, Md. — guns and ammunition were seized the second time — but nobody reported on them until the veteran government scientist was dead. If he had lived, the government was by that point preparing to file charges, something that never happened to Hatfill.

So did reporters, with an eye on Locy’s legal battles, back off the story? Did sources in the FBI and the Justice Department shut down, wary of Privacy Act lawsuits and doubtful that reporters’ confidentiality promises could hold up anymore?

In other words, did we just witness a chilling effect?

From the government’s end, according to media attorney Lee Levine, who represented another reporter subpoenaed in Hatfill’s lawsuit, “There certainly is some evidence that there was more discipline and resulting secrecy with respect to Ivins.”

Indeed, according to Chuck Tobin, a media lawyer at Holland and Knight, even after Hatfill settled with the Justice Department, sources there remained quiet about the investigation. And as for the news media, he said, journalists proceed with greater caution “if at some point yesterday’s suspect becomes today’s Privacy Act plaintiff.”

Washington Post editor Marilyn Thompson, who wrote a book on the investigation, said bluntly: “The Hatfill case seriously affected the willingness of journalists to pursue the anthrax story.”

Twice around the anthrax case

By the time Ivins died on July 29, he had been a target of the anthrax investigation for more than 12 months. According to media reports, in the fall of 2001, he had been the custodian at the U.S. Army Medical Research Institute of Infectious Diseases at Fort Detrick, Md., of the particular genetic breed of anthrax mailed out to Capitol Hill and various news outlets in New York and Florida. His house was searched in November 2007, and again earlier this year. Three weeks before he died, he revealed at a group therapy session that he was the anthrax suspect, The Washington Post has since reported, and he threatened to kill the Army lab co-workers he thought were against him. For that, Ivins was sent to a psychiatric hospital.

None of this appears to have made the news until days after he died of an overdose of Tylenol with codeine.

Ivins’ culpability in the anthrax attacks was almost immediately questioned. Many of his relatives and longtime friends were skeptical of the government’s allegations, and in September the Senate Judiciary Committee held a hearing to press FBI Director Robert Mueller on the evidence investigators had against Ivins.

David Willman, the Times reporter who broke the story that Ivins had killed himself, was one of the few reporters who stayed on the case in the years after Hatfill’s name fell off the front pages, according to Thompson. Willman’s first story on Ivins was a front-page article packed with information Willman says he had been gathering on Ivins since March for a planned expose.

He declined to say when he had expected to publish that lengthier report, whether he or the newspaper was waiting for an indictment or some other firm evidence that Ivins was indeed the prime suspect. But what triggered the Aug. 1 article, Willman said, was that a court hearing Ivins was scheduled to attend was abruptly canceled, and when Willman looked into it he discovered the suicide.

Contrast all of this with Hatfill’s experience: Federal investigators started with a long list of potential suspects to exclude, homing in on Hatfill within weeks of the attacks. By the spring of 2002, his name had surfaced on the Web in connection with the case and New York Times writer Nicholas Kristof described him as “Mr. Z” in a series of columns on the case. In mid-June, more than seven months after the attacks, the FBI search of Hatfill’s apartment made national news; it was reported, too, that federal investigators dredged a Maryland pond in search of evidence linking him to the attacks. Attorney General John Ashcroft named him a person of interest in the case while on national television.

Then Hatfill and his lawyer called press conferences to fight back.

“Every misstatement, every minuscule wrong step, every wrinkle I’ve ever made in my life has become public,” Hatfill told reporters, according to The Post, “and I’m pilloried for it.”

He was never charged in the case.

Instead, he filed a libel lawsuit against Kristof and The Times, and a Privacy Act claim against Ashcroft, the Justice Department and the FBI. The libel suit was dismissed. The Privacy Act case inched along for months, taking a lengthy deviation as Hatfill’s attorneys pursued Locy and a string of other reporters for the confidential sources they used to report on him. Free-press advocates, including the Reporters Committee, took up Locy’s cause, arguing that she should not have to out sources she’d cultivated over years of beat reporting. Judge Reggie B. Walton ultimately placed Locy in contempt and, in a move that struck the media community as particularly ominous, ordered her to pay escalating fines — without the help of her newspaper or anyone else — for each day she refused to speak up.

Those fines have been stayed as the Court of Appeals considers Locy’s appeal of her contempt order. Walton has said he will dismiss the order if the higher court returns the case to him, but that had not happened as of October. In the meantime, Hatfill’s attorneys have filed motions saying they want the case returned to Walton so that he can order her to pay his lawyers’ bills.

Assessing the damage

It’s impossible to gauge with any degree of certainty how much the lessons of Hatfill’s Privacy Act suit reverberated within the Justice Department, and how much the impact Locy’s case had on reporters. Many factors could have kept Ivins out of the news. But to several journalists and media lawyers who followed the case, it’s clear that in combination with other prominent, recent legal fights over confidential sources, there has been at least some chilling of the news process.

“I know from my own work,” Tobin said, that legal battles like the Privacy Act cases of Hatfill and former nuclear scientist Wen Ho Lee, and the protracted battle over the leak of onetime CIA operative Valerie Plame’s name, have “sources and whistle-blowers in this city [Washington, D.C.] very nervous.” With reporters repeatedly compelled to go back to sources and seek waivers of confidentiality, that core promise of protection is no longer as stable as it once was.

No reporter wants to be in the position of Locy or Judith Miller, who spent 85 days in jail for refusing to reveal her sources in the Plame case. Fewer government officials, it seems, are willing to risk their jobs and pass along news.

And so when it came to Ivins, Thompson said, Willman “seemed to be the only reporter willing to touch the subject of the anthrax case.” Which is unfortunate, she said: “Continued press scrutiny might have helped exonerate Mr. Hatfill much more quickly.”

Once Willman did break the news, Thompson said, it set off the “fever again.” She received a late-night phone call from her newspaper saying “we need to jump back on the story.”

In an interview, Locy said the First Amendment is no longer enough to defend reporters from the legal hazards that are inevitable in high-profile investigations of national security cases.

More needs to be done to protect reporters and restore the full value of the journalist-source relationship, she said — namely, the enactment of a federal shield law.

Tobin agreed: “This whole notion that public conduct by public officials somehow gives rise to a legal right of privacy is extremely disturbing, and it becomes almost self-serving for the government and the courts to prosecute these journalists in the name of so-called private conduct on matters that deeply affect the public.”

But at least one person called on reporters not to back down. In August, Kristof apologized to Hatfill in a column. He challenged readers to think about how they would report on pending investigations, when suspects surface but are not yet charged. He ended his column with this: “My own judgment is that while the cost imposed on individuals can be huge, where crucial public interests are at stake, we in the press should be very wary of keeping what we know from the public.”