Sunday, December 05, 2004

Anthrax: Whistle-Blower Crackdown Spreads

A judge is ordering government workers to waive their confidentiality agreements with journalists. What impact will the controversial tactic have on the media's ability to report news?


Whistle-Blower Crackdown Spreads
By Michael Isikoff and Mark Hosenball
Newsweek
Updated: 5:49 p.m. ET Dec. 1, 2004


Dec. 1 - A hard-edged tactic used by a Justice Department special counsel to smoke out anonymous sources in a CIA leak case is about to be expanded to the 2001 anthrax investigation—despite profound misgivings within the department about the legitimacy of the practice.

As many as 100 FBI agents, federal prosecutors and other department employees are likely to be asked—possibly as early as the next few weeks—to sign broadly worded statements waiving any confidentiality agreements they had with journalists about the anthrax case, Justice officials tell NEWSWEEK. The waiver statement was recently ordered by a federal judge at the urging of lawyers for bioterrorism expert Dr. Steven J. Hatfill, who has filed a lawsuit alleging that government officials leaked damaging personal information about him in an effort to connect him with the anthrax attacks.

The language is to be patterned on a similar statement distributed last year to White House officials and others in the investigation headed by special counsel Patrick Fitzgerald, a U.S. attorney in Chicago, to determine who leaked the identify of undercover CIA agent Valerie Plame to columnist Robert Novak. Like the upcoming Hatfill waiver, the so-called “Plame waiver” was designed to be an end run around journalists’ claims that they are protecting the confidentiality of sources when they refuse to testify in leak investigations. The statement asserts that a government official who talked to the news media waives “any promise of confidentiality, express or implied” that was offered to them by a reporter, according to a copy of the Plame waiver obtained by NEWSWEEK.

It further authorizes any reporter with whom the official talked to disclose to investigators “any communications that I may have had … regarding the subject matters under investigation, including any communications made ‘on background,’ ‘off the record,’ ‘not for attribution,’ or in any other form.”

The Plame case, including the validity of such “waiver” statements, is headed for a showdown next week when a federal appeals court hears arguments about whether two reporters, Judith Miller of The New York Times and Matthew Cooper of Time magazine, should be incarcerated for refusing to answer questions about their contacts with administration officials who signed the waivers. But largely overlooked is that the Plame waiver appears to be catching on as an accepted practice to pressure reporters to reveal their sources.

This is happening even though some top officials within the Justice Department have serious doubts about the waivers. Indeed, although it got little attention at the time, a Justice lawyer recently acknowledged to the judge overseeing the Hatfill suit that the theoretically voluntary waiver poses “significant issues” for the government, including the fact that they could well be construed as coercive by officials who are asked to sign them.

The lawyer, Elizabeth Shapiro, also questioned whether the waivers would even be effective in persuading a journalist to disclose confidential communications with a source. “I can’t imagine that the breadth of such a waiver would have significant meaning to a reporter,” she said, according to a transcript of an Oct. 7 hearing before U.S. District Judge Reggie B. Walton, who is on the bench for the Hatfill case.

“It’s very disturbing that this is starting to become used as a way to out the relationship between reporters and sources,” said Floyd Abrams, a prominent First Amendment lawyer who is representing both Miller and Cooper in the Plame case. “On the face of it, [the waivers] are coercive. How could they be anything but?”

In the Plame case, special counsel Fitzgerald has persuaded a federal judge to hold both Miller and Cooper in contempt of court for refusing to testify about conversations they had with White House officials about Plame’s identify. (Plame, a former CIA undercover officer, is the wife of former U.S. ambassador Joseph Wilson, who had become a critic of the president’s Iraq policy.) In pressing his case that both Miller and Cooper should be jailed if they don’t testify, Fitzgerald has invoked the waiver statements signed by the White House officials as evidence that whatever “reporters’ privilege” the journalists are claiming no longer applies.

But Miller and Cooper have countered exactly how Shapiro, the Justice Department lawyer in the Hatfill case, suggested they would: the waivers are meaningless. One reason is that White House officials were effectively compelled to sign them—and risked even losing their jobs if they did not, according to the journalists. “Whatever may have been said publicly or privately within the government to any source of mine that may have cajoled him or her to sign the form prepared by the government—and I am aware of public statements of the president himself urging all officials to cooperate with the investigation—does not affect my promise of confidentiality to my sources in any way,” Miller said in an affidavit submitted in the case. “I do not feel at all confident that such a form presented to individuals by their employer … is not signed under extraordinary pressure.”

Just how much pressure the government has used can be gleaned from the experience of one former White House official who, after the leaving the government, was still pushed repeatedly by the FBI to sign the waiver form. The former official, who asked not to be identified, said he refused to do so because “I didn’t think it was fair to the reporters. It struck me as a backdoor way to use pressure.” An arrangement between a reporter and a source “has to be all or nothing. It can’t be changed after the fact.”

At that point, the FBI agents called up the former official’s lawyer and stepped up the pressure, saying that other witnesses at the White House had signed the statements. “If he’s got nothing to hide, why won’t he sign,” one of the agents asked, according to the former official’s lawyer.

The new use of the Plame waiver stems from claims by Hatfill’s lawyers that government officials violated his rights under the Privacy Act by allegedly leaking damaging information about him—to NEWSWEEK, among other publications. (The lawsuit is separate from, and unrelated to, a libel suit filed by Hatfill against New York Times columnist Nicholas Kristoff that was dismissed by a federal judge last week.)

Although he was once described by Attorney General John Ashcroft as a “person of interest” in the deadly anthrax attacks, and was widely reported to be a principal focus of the investigation, Hatfill has never been charged in the case. Still, Hatfill lost his job with a government contractor and remains both unemployed and “unemployable” as a result of the widespread publicity he received in the matter, according to a source close to him.

In the civil suit, Hatfill’s lawyers demanded that the Justice Department conduct a vigorous leak investigation into who provided the news media with incriminating information about Hatfill. As a prod to make them do so, they seized on the idea of pushing Justice to distribute “Plame waivers” to a list of between 50 and 100 federal prosecutors, FBI agents and others who were working on the anthrax case.

Justice Department public affairs chief Mark Corallo said that no pressure will be put upon agents, prosecutors and others asked to sign the waivers in the Hatfill case. “We are simply the facilitators,” Corallo said. “The individuals who will receive these waivers will be informed they are under no obligation to sign them. It is totally voluntary, and no matter what their decision, it will not reflect on their employment.”

But Hatfill’s lawyers clearly have their own ideas. They intend to depose a long list of the agents and prosecutors who have worked on the anthrax case and intend to, they have indicated, target first and foremost any that declined to sign the waivers.


Source: MSNBC

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