Reporters Ordered to Show Sources in Anthrax Case

MADELEINE BRAND, host:

This is DAY TO DAY. I'm Madeleine Brand.

JAMES HATTORI, host:

And I'm James Hattori. In a few minutes the public face of a Utah mine collapse story. We'll talk with outspoken Robert Murray, co-owner of the Crandall Canyon Mine.

BRAND: But first, to a court ruling that has journalists a little nervous - five journalists in particular. They've been asked to reveal their sources in a lawsuit pitting a scientist against the federal government. That scientist is Steven Hatfill, and you may remember him as the bio-weapons researcher the government named as a person of interest in those anthrax mailings back in 2001. Hatfill was never charged with any crime, and he wants to know which government officials told reporters that he was under investigation.

NPR media correspondent David Folkenflik joins us now from Washington. David, first of all, explain this ruling to us. It was from Judge Reggie Walton.

DAVID FOLKENFLIK: Well, Judge Walton had earlier essentially instructed Hatfill to have the reporters required to reveal their sources. The judge basically compared this very directly to the case of Wen Ho Lee, who was the Los Alamos scientist who had been identified as possibly giving secrets - nuclear secrets over to the Chinese.

In this case, you know, he said to Hatfill, if you don't pursue the journalists, you're not going to have a suit. Now, in fact, Michael Isikoff and Daniel Klaidman of Newsweek, Allan Lengel of the Washington Post, Tony Locy formerly of USA Today, and Jim Stewart, who was with CBS News, are being required by Walton to pony up and say who their sources were.

BRAND: Give us the backdrop of this case. I remember it happened just after the 9/11 attacks in 2001, and people were pretty freaked out.

FOLKENFLIK: That's right. I mean, this turned out to be - what appeared to be a second wave of terrorism, probably domestically based. People were very worried about what was at times fatal, you know, packages being sent. And you know, attention soon focused on the limited number of people who might figure out how to turn that into a weapon, and Hatfill appeared to be among them.

BRAND: And apparently reporters got some information that he was among them. They're not revealing where they got that information. Why?

FOLKENFLIK: Well, reporters were given information on, you know, a not for attribution basis. And you know your word is your bond as a reporter. If you keep ponying up who told you things when it's a little inconvenient or when somebody asks, people aren't going to tell you things on the record.

Now, this is an interesting case because Hatfill was identified as a person of interest, which, if you look in the Justice Department manual, doesn't have any meaning, it's not there. It's sort of a designation that then-Attorney General John Ashcroft used in 2002 to point to Hatfill as a way of indicating to the public that they were taking this very frightening episode very seriously.

BRAND: And David, those anthrax cases have never been solved.

FOLKENFLIK: No one has ever been charged, and no one knows who was behind them.

BRAND: Well, it's kind of interesting that he's suing the government and not the journalists themselves or the news organizations themselves.

FOLKENFLIK: Well, and you know, Judge Walton compared this to Wen Ho Lee. In that case several news organizations did end up contributing towards the government payment to Wen Ho Lee for damages. It was a very unusual case. And it indicates how this a sort of a three-side struggle between a person who feels aggrieved between the government that leaked and the press that was leaked to.

BRAND: David, it's the same judge in this case - Judge Reggie Walton - who president over the Valerie Plame case. In that case, also journalists were compelled to reveal their sources.

FOLKENFLIK: Well, the key lesson of what was, you know, ultimately a trial involving Scooter Libby and others, Patrick Fitzgerald's investigation of who leaked the name Valerie Plame Wilson, the key lesson of that is that a determined prosecutor in a criminal case can pretty much get what he wants, when he wants, from the press, and there are not federal protections there. Walton and others have ruled that there is no common law protections that journalists so very much want to have.

BRAND: The federal shield law.

FOLKENFLIK: Well, a federal shield law, but also the notion of, hey, look, this is a tradition that 31 states have protections of some kind in law and a bunch of others have it in common law, the evolution. They say, look, there is this principle that exists, you know, the media is one of I think only two professions enshrined in the Constitution, Bill of Rights. This is something that needs to be protected because of the greater principles. And judges essentially have said that's well and good. We may even be sympathetic to such things but they don't really exist.

BRAND: It's kind of ironic, David, don't you think, that the government is actually filing arguments in this case on behalf of the journalists.

FOLKENFLIK: Well, the government in this case is protecting its own interest. It's not really looking out for the press here. The government doesn't want its own current and former officials at the FBI and the Justice Department who handed this information out to be punished for what they see was part of their official duties.

BRAND: NPR's media correspondent David Folkenflik. Thanks a lot.

FOLKENFLIK: You bet.

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