Monday, March 12, 2007

Sigh, journalist shield laws, Part III

Spot really has some other things he would like to write about. But the journalist's privilege, or shield law, keeps popping up. Spot has to confess it is a fascinating issue.

Last night, 60 Minutes had a story about Steven Hatfill's lawsuit against the FBI and the DOJ for their roles in ruining the reputation of Hatfill in the wake of the anthrax "attacks" in the fall of 2001, a time that was already a season of discontent and anguish in the U.S. Spot is a terrible note taker, but luckily 60 Minutes has the story on its web page. Here's the lede paragraphs:

Remember the anthrax scare? It was about four weeks after 9/11. Letters laced with powdery spores of the deadly bacteria were mailed through the U.S. postal system. In all, five people died, 17 fell ill. At first, everyone thought this was another al Qaeda terrorist attack.

But soon the FBI began keying on a so-called "person of interest" – Steven Hatfill – and launched one of the largest criminal investigations in its history.

As correspondent Lesley Stahl reports, the FBI has been going after this guy for five years, and yet he has got them in court: Hatfill has sued the FBI and Department of Justice for what he claims has been a campaign of leaking lies and distortions about him to the press.

Through the lawsuit, Hatfill's lawyer has not only obtained boxfuls of internal government documents, but he has also deposed nearly every major law enforcement official involved in the case. It is the latest twist in the FBI's yet unsolved investigation of the anthrax murders.

You really should read the entire piece, boys and girls. But it is pretty clear that Hatfill was the object of a concerted leak and smear campaign, and the media were complicit.

Steven Hatfill, a medical doctor and an expert on viruses, was outed in a drumbeat of news reports that included aerial shots of the FBI seizing property from his apartment, including his trash.

And then-Attorney General John Ashcroft confirmed on television that Hatfill was a "person of interest."

But instead of the FBI nailing Hatfill, he filed his lawsuit claiming that with their leaks, the FBI and Justice Department had violated his presumption of innocence and destroyed his reputation.

There were—and are—several other "persons of interest" who have never been publically identified. Here is what Richard Lambert, head of the investigation said about that:

"There were 20 to 30 other people who were also likewise identified as 'persons of interest' in the investigation," Lambert said during the deposition [in the Hatfill litigation].

Lambert couldn't identify the other people, acknowledging that his testimony could stigmatize those individuals.

No s**t, Sherlock.

The 60 Minutes article does not describe the lawsuit in much detail, but its gravamen pretty clear rests on the reputational torts—defamation in its sundry forms. Here's Hatfill's lawyer:

"If you want a blueprint for ruining somebody, this is how you do it. You engage in a campaign of leaking investigative information to your favorite reporters who then write it, and create a caricature of you," Connolly tells Stahl.

Asked if he knows for sure that it was the FBI and Justice Department that were doing the leaking, Connolly says, "I know as a matter of existential truth it was the FBI and DOJ."

How does he know it?

"Because I have FBI agents under oath, who acknowledge under oath, that it couldn't have been coming from anywhere else because of what was being leaked," he explains.

Nine reporters also gave sworn testimony. In their stories, they often identified their sources as law enforcement officials [without specifically identifying the individuals]. . . .

The FBI and the DOJ even managed to annoy Senator Charles Grassley (R-Middle Earth) about this:

Senator Charles Grassley, a Republican from Iowa, has looked into the case and has concluded that there was leaking by top officials and that the purpose was not to shut Hatfill down, but to hide the lack of progress in the case.

"Do you have any evidence that they were planting information in the press that they knew was not true?" Stahl asks the senator.

"I believe the extent to which they wanted the public to believe that they were making great progress in this case, and the enormous pressure they had after a few years to show that, yes, that they was very much misleading the public," Sen. Grassley replies.

Back to shield laws. A shield law might protect an important whistleblower and encourage that person to come forward, but it can also facilitate the use of the media as conduits for egregious defamation by a vindictive source—even one in the government.

Is this the kind of protection we want to extend to Rumor-Mongering Blogs? Spot doesn't think so.

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