By Peter Scheer
Just when you thought it was safe again for journalists to talk to confidential sources inside government, a federal judge in Washington, DC has ordered five prominent reporters—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—to disclose the names of government sources to whom they promised confidentiality.
The order comes in a civil suit filed by Steven Hatfill, the bioterrorism expert whom federal investigators suspected was behind the 2001 anthrax mailings. A former federal employee, Hatfill claims that the Justice Department and the FBI, by leaking to the press information about their suspicions of him, violated his rights under the federal Privacy Act. Hatfill, who has never been charged in the still-unsolved anthrax homicides, sued only the government, not the reporters (although in a separate case he sued the New York Times for libel based on Op-Ed articles by columnist Nicholas Kristof published in 2001; that suit was dismissed earlier this year).
The subpoenaed reporters have already acknowledged in pretrial depositions that their stories about Hatfill were, in fact, based on leaks from government investigators. Until now, however, they have refrained from naming those investigators. The order issued this week by US District Judge Reggie B. Walton—the same judge who presided over the recent criminal trial of Lewis (“Scooter”) Libby—directs the reporters to ID their sources, finding that the names “are central to Dr. Hatfill’s case” against the government.
Judge Walton’s order leaves the reporters few options to avoid jail or fines for refusing to reveal confidential sources. The reporters can hope that the government will settle the case, as it did a similar Privacy Act lawsuit that was brought by Livermore physicist Wen Ho Lee, who had been falsely accused of giving nuclear secrets to the Chinese government. To resolve that litigation and protect their reporters from contempt sanctions, news organizations, including the New York Times, Washington Post, Los Angeles Times, ABC News and the Associated Press, contributed $750,000 of a $1.6 million settlement deal between Lee and the government.
But repetition of the settlement in the Lee case is unlikely. The Justice Department was willing to settle with Lee in part because it had no hope of prosecuting him further. The Bush administration, however, has not necessarily given up on prosecuting Hatfill, whom investigators characterized as a “person of interest” at the time of the anthrax crimes.
Nor are the reporters in the Hatfill case likely to be able to obtain valid waivers from their sources, freeing them from their promises of confidentiality. Although the waiver strategy was invoked by half the Washington press corps in the Libby trial and in the Plame grand jury proceeding leading up to it, waivers in the Hatfill case would be highly suspect: Why would government sources, after all, willingly admit to career-ending misconduct (or worse)? Any waivers must be viewed as coerced and involuntary.
Judge Walton’s order is a reminder to journalists—whether reporters for national news media or bloggers writing about local politics—that use of confidential sources can lead to demands for disclosure not only in grand jury proceedings and criminal trials, but also in civil litigation filed by private individuals in federal court.
And civil litigation may, in fact, pose the greater threat. Private plaintiffs are not subject to the guidelines that apply to federal prosecutors for obtaining evidence from journalists. Private plaintiffs, moreover, are completely unaccountable. US Attorneys are subject to oversight by the Justice Department, which in turn is accountable to Congressional committees that control the agency’s budget. This food chain provides opportunities for the application of political pressure to rein in an over-zealous prosecutor. But private plaintiffs, of course, are subject to no such constraints.
It’s hard to see how the Hatfill case won’t end badly for the subpoenaed reporters and the news organizations they represent. The remedy is for Congress to pass a federal Shield Law comparable to those in effect in California and most states. Legislation to do that, the “Free Flow of Information Act of 2007,” is currently before both the House and Senate. Although it’s not perfect—exclusions for confidential sources of “national security” information and “trade secrets” would be too easily abused—the bill is an improvement over previous versions and the best that we are likely to see anytime soon.
It’s time for a federal Shield Law to be transformed from theory to law.
Peter Scheer, a lawyer and journalist, is executive director of CFAC.