Toni Locy
W&L Journalism Ethics Institute
March 6, 2009
Throughout my 25-year career as a journalist, I opposed the so-called shield laws because I was uncomfortable with the notion of carving out special treatment for reporters. I thought that as long as I was fair, accurate and skeptical of government, I would not need any extra protection.
I thought the First Amendment of the U.S. Constitution and the constitutional protections of the states I worked in would be enough.
Unfortunately, my experience with Dr. Steven Hatfill’s civil Privacy Act lawsuit proved me wrong.
In October 2001, I was one of many journalists who reported and wrote about the anthrax-laden letters that were sent through the mail to U.S. senators and media organizations.
As you will recall, five people died, 17 were sickened and thousands of other people were forced to take antibiotics. Congress shut down, while activities at the Supreme Court and other government agencies were disrupted by the anthrax threat.
The fear in Washington was palpable. I distinctly remember days when FBI agents were summoned to office building after office building to investigate suspicious white substances found on desks, on computer keyboards and on elevator floors.
The substances turned out to be nothing more sinister than powdered sugar from donuts. But the anthrax attacks so frightened people that restaurants stopped serving powdered sugar on French toast and people in small towns called police to open their mail.
The anthrax attacks acutely panicked the American public unlike any other form of terrorism because everyone felt personally vulnerable to the primary attack mechanism. And that was the U.S. mail.
My job at USA Today was to tell the terrified public what the FBI and other government agencies were doing to respond to the anthrax crisis, and how well they were doing it.
The public wanted to know—and needed to know—whether the FBI was going to catch the killer or killers, and if investigators were acting adequately and appropriately to protect the public from another attack.
Because people desperately wanted to know about investigative activities that are inherently secret in nature, to do my job and inform my readers I had to rely on a large number of confidential sources.
This included about a dozen or so people in the FBI and main Justice Department who provided important information to me only on the condition that I keep their identities confidential. I pledged to protect their identities because that was the only way I could gather and report information about the deadly anthrax attacks that my readers wanted to know.
The anthrax investigation was not my sole area of responsibility. Rather, it was one of many topics I was assigned to cover in the highly charged atmosphere following al-Qaeda’s Sept. 11, 2001, terrorist attacks on this country.
As a result, the 2 ½ years after the 9/11 attacks were the most intense of my career. I remember no other period in my adult life where the stakes in my reporting were as high—on so many subjects.
In addition to the anthrax investigation, I had a substantial role in reporting on everything from the FBI’s on-going investigation of the 9/11 hijackers and the hunt for Osama Bin Laden to developments in the criminal case against Zacarias Moussaoui and the impact of the USA Patriot Act.
I also covered the habeas corpus challenges filed by detainees held in the Bush administration’s war on terrorism and its efforts to create military commissions to try suspected terrorists held at Guantanamo Bay, Cuba.
With respect to most, if not all, of those topics, I repeatedly and regularly consulted with confidential sources, including my FBI and DOJ sources.
My practice was to run through a litany of questions about all of my areas of responsibility when I had any time whatsoever with my sources. I did NOT ask solely about anthrax or Steven Hatfill. Anthrax was on my list of questions. But it was NOT the only question I posed to my sources.
As a result, I cannot match my sources to particular facts at issue in the Hatfill case. Forcing me to disclose ALL of my sources—based on speculation that SOME of them MIGHT be able to remember providing that information to me—would result in disclosing confidential sources who had nothing whatsoever to do with the articles at issue.
What’s worse is that disclosing such sources could pose problems for people who provided me with information for stories on issues that were far more sensitive than the articles I wrote about Dr. Hatfill.
I have no notes to refresh my recollection. As a young reporter in my first job at the Pittsburgh Press, I was taught to discard my notes. A media lawyer told us to come up with a system, be consistent about it and to throw away notes.
The advice also had a practical element to it: If I kept every note I took on every story I ever wrote, there would be no room for me in my house or my office.
In those days, the early 1980s, the biggest threat we faced as reporters was from prosecutors who issued subpoenas for our notebooks. Such efforts appear almost quaint compared to the threat reporters face today from civil lawsuits such as the one filed by Dr. Hatfill.
Over the course of my career, I wrote thousands of stories. I was a beat reporter. Everywhere I worked, I usually was one of the most productive members of the reporting staff.
Of that large body of work, two stories were at issue in Dr. Hatfill’s civil lawsuit against the Justice Department. They were written in May and June of 2003.
They were NOT “scoops.” They did NOT appear on Page One of the newspaper. As a result, neither story holds a special place in my memory.
In fact, both stories were written several months after then-Attorney General John Ashcroft went on national television in August 2002 and publicly labeled Dr. Hatfill as a “person of interest” in the anthrax investigation.
I remember my reaction to the attorney general’s statement. I had never heard such a term used in this manner. Suspect. Target. Focus of an investigation. Yes, those were terms I knew. But “person of interest”? It set off alarms in my head. I asked my sources about it, and they were as baffled as I was.
My sources also were angry that the attorney general would do such a thing. Imagine this: FBI agents were more concerned about a suspect’s rights than lawyers at the main Justice Department.
I subsequently searched the U.S. attorney’s manual (the federal prosecutor’s handbook) to see if I could find such a reference. There was none. I wrote a story saying so.
Use of the term “person of interest” has exploded, as I’m sure you have noticed. The term is very troubling because law enforcement authorities are not providing any evidentiary basis for its use. In effect, it can be used as a smear tactic while giving the public a false sense of security by suggesting that law enforcement authorities are “on the case.”
I carried my skepticism of the Justice Department’s actions with me throughout my coverage of the anthrax investigation. The longer of the two stories I wrote (which appeared May 29, 2003) was a product of that skepticism.
The story described how the FBI had Dr. Hatfill under 24/7 surveillance and provided my readers with an update on the investigation. It was written after Dr. Hatfill had a confrontation on a Georgetown street with FBI surveillance agents who were watching him. Dr. Hatfill received a traffic ticket, not the agents, after they allegedly ran over his foot while driving an SUV away from the angry scientist who was upset that his every move was being monitored.
My May 29 story explained the incident to my readers. As I said before, it broke no new ground. It was not a scoop.
But it was accurate. And I am proud to say that it treated Dr. Hatfill fairly by prominently comparing the FBI surveillance tactics in his situation to a famous FBI debacle: Richard Jewell, the security guard who came under FBI suspicion in the 1996 bombing at the Olympics in Atlanta. Mr. Jewell was completely innocent and was, in fact, a hero, who noticed an abandoned backpack in a park and cleared the area. One person died when the bomb exploded, but the death toll could have been much higher if Mr. Jewell hadn’t acted quickly.
As a result, invoking the name of Richard Jewell in any article about the FBI equals one thing and one thing only. And that is skepticism.
My May 29 story also pointed out division and disagreement inside the investigation about whether Dr. Hatfill should have been the FBI’s sole focus.
For much of the time I was covering the anthrax investigation, representatives of Dr. Hatfill’s repeatedly and consistently provided information to me about him.
Pat Clawson, a friend of Dr. Hatfill’s, called me repeatedly. I also had numerous conversations with Tom Connolly, one of Dr. Hatfill’s lawyers.
Mr. Connolly and I had several conversations about the investigation and about many of the topics that were later the subject of Dr. Haftill’s federal Privacy Act claims.
These issues included: whether police dogs had “gone wild” or not at a scent at Dr. Hatfill’s apartment or his girlfriend’s apartment; whether Dr. Hatfill had “passed” a polygraph; what a finding of “evasive” on a polygraph really meant; Dr. Hatfill’s alleged exaggerations on his resume; what the FBI found during searches of a pond in Frederick, Md.; among many other issues.
Mr. Connolly also introduced me to Dr. Hatfill at D.C. Traffic Court. And he ordered an associate at his law firm to send me an advance copy of Dr. Hatfill’s lawsuit.
At no time did Mr. Connolly complain to me about the accuracy or fairness of my coverage of the anthrax investigation.
In fact, he was very complimentary of my work and was forced to admit as much in the filings in this case before Federal District Judge Reggie Walton.
It is important to understand the role of and need for confidential sources in the news-gathering process. Confidential sources are not traitors—as the proponents of more government secrecy want Americans to believe.
In post-9/11 America, where secrecy is an epidemic, we need government insiders now more than ever to tell reporters how public officials are using their vast powers. Without their help, the public will never learn about government abuse or corruption. Without Deep Throat, there would’ve been no Watergate.
In my experience, most confidential sources provide reporters with information out of a sense of duty, and, yes, even patriotism, because they care about the quality of our government.
But reporters must be careful about relying on confidential sources. We must guard against being used.
Reporters must always ask themselves why a source is providing information. It isn’t because sources think you’re cute, believe me. Once a reporter knows her source’s motivation, it is then—and only then—that she can weigh the pros and cons of using that source’s information in her story.
I can only speak to the policies of the newspapers where I worked, and I know that in the wake of several scandals—Jack Kelley, Jayson Blair and Stephen Glass, reporters who made up sources out of thin air—that newspapers re-examined and strengthened the checks and balances in their news rooms to control the use of confidential, unnamed sources.
I always believed that the reporter who covers the law must be relentless in questioning police, prosecutors and judges about their use of government’s awesome powers to subpoena Americans to testify against each other, to search people’s homes and to eavesdrop on citizens’ private e-mail and conversations.
But we are not cops. We are reporters, not FBI agents. It was NOT our job to solve the anthrax attacks or any other crime. We reporters don’t have subpoena power. We cannot seek and execute search warrants. We also aren’t private investigators on retainer with plaintiffs’ law firms.
What we can and should do is cultivate knowledgeable, honest government officials as confidential sources who provide us with accurate, fair and as complete information as possible about on-going investigations.
And that is exactly what I did when I reported and wrote about Dr. Steven Hatfill and the anthrax investigation.
I was fair. I was accurate. I was skeptical. I did my job and I did it well. Yet I was found in contempt of court, faced fines of up to $5,000 a day and was threatened with jail.
Judge Walton also took the unusual step of banning anyone—my friends, my family, my former employer—from helping me pay those fines. My students couldn’t even hold a bake sale for my benefit.
Thankfully, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed to stay the fines, and I didn’t have to wreck my retirement fund to pay them.
But, much to my disappointment, the judges refused to decide several significant issues I raised in my appeal after the Justice Department ultimately agreed to pay Dr. Hatfill and his lawyers up to $5.8 million to make the case go away.
At Dr. Hatfill’s request, the Court of Appeals said my appeal was moot and side-stepped issues that could affect the way journalism is practiced not only in Washington but in small towns and cities across the nation. Those issues include:
Whether reporters can be ordered, as I was, to reveal every source they have in order to allow plaintiffs to conduct fishing expeditions in which they may or may not find the evidence they claim is crucial—or not so crucial—to their cases.
My biggest fear is that Privacy Act lawsuits such as Dr. Hatfill’s will be aimed at reporters everywhere. If that happens, reporters won’t be able to cover any on-going investigation, whether it is of government corruption or a notorious crime, such as the anthrax attacks, or a DUI committed by a public official.
In the United States, we hold the FBI accountable now. We don’t wait until someone is charged, tried and convicted. This is the United States, not Great Britain or Canada, where reporters face restrictions on what they can write and when. Here in the United States, we cover crime from start to finish and all points in between.
No one—not Dr. Hatfill’s lawyers, not Judge Walton—ever told me which paragraph, which sentence, or which word in my stories violated Dr. Hatfill’s privacy rights. It seems to me that such a word-by-word, line-by-line analysis should have been conducted first—long before the judge held me in contempt and issued a ruling that threatened the ability of reporters to gather the news.
Instead, in my opinion, the law was applied backwards. Judge Walton skipped the analysis and charged ahead with an attack on the principle of a free press, giving little, if any, thought to the consequences.
Judge Walton strongly suggested that I should not have written anything at all about Dr. Hatfill, and that any and all stories about Dr. Hatfill violated the Privacy Act.
I respectfully disagree, and I respectfully suggest that Judge Walton was employing hindsight, which is always 20-20. He knew—before the public—that the FBI was abandoning its focus on Dr. Hatfill and investigating another scientist, Dr. Bruce Ivins, who worked at the same U.S. Army lab in Maryland as Dr. Hatfill.
Last summer, the Justice Department cleared Dr. Hatfill of any wrongdoing in the anthrax attacks and identified Dr. Ivins, who had killed himself shortly before the announcement, as the main suspect. To correct its grievous error, the Justice Department agreed to pay up to $5.8 million to Dr. Hatfill to settle the Privacy Act lawsuit he had filed.
Believe me, I do not like seeing innocent people ruined by overzealous or misguided prosecutors, or by overzealous or misguided journalists who don’t question the information they are being provided by investigating authorities.
However, I do not believe that cracking down on the press is the answer. Knee-jerk rulings by judges who want to curb press coverage may protect an individual here and there. But such approaches would do more harm than good.
In my years covering courts, I often saw judges work very hard to avoid unnecessary Constitutional fights.
When the First and Sixth Amendments are pitted against each other, as they were in the Hatfill case, there are usually consequences—significant consequences. Like a hurricane that causes beach erosion when it makes land fall, a collision of these two forces within the Constitution often results in an erosion of rights and the public’s ability to learn what its government is doing.
The public would be ill-served if journalists made deals with prosecutors and the FBI and waited until a suspect is charged, tried and convicted before they reported on an investigation.
There is too much secrecy in the criminal justice system as it is. Secrecy is the enemy of democracy. It seduces people in power and makes it difficult for them to resist the temptation to cover up their abuses and their mistakes.
Unfortunately the only way law enforcement learns from its mistakes is through publicity—and sometimes that doesn’t work. The FBI used the same exact surveillance tactics on Dr. Ivins and Dr. Hatfill. If the evidence against Dr. Ivins is reputed, what lesson was learned from Dr. Hatfill’s situation?
Despite the hell that Dr. Hatfill endured, I shudder to think what could have happened if reporters had not covered the anthrax investigation. What if reporters had made a deal with the FBI (and Mr. Ashcroft had kept quiet) about naming Dr. Hatfill? Does that mean we would’ve ignored the press conferences Dr. Hatfill held or the calls from his lawyers to profess his innocence? Probably.
Judge Walton also went so far as to say that NO public official should talk to the press, and if his order burned sources of mine who had nothing whatsoever to do with these stories, well, that was just too bad. In his view they shouldn’t have been talking to me about anything anyway, and maybe being burned would teach them a lesson.
I respectfully disagree.
My response is be careful what you wish for because you might get it. And if you do, remember this: if you give up a right, it is difficult, if not impossible, to get it back. If you punish public officials for talking to the press, you will learn less and less about what your government is doing.
What Judge Walton failed to understand—or ignored—is that Dr. Hatfill’s life was not ruined solely because of the press coverage of the FBI’s flawed investigation. His life was ruined because the Justice Department sent letters to potential employers that threatened to yank government funding if they hired Dr. Hatfill.
There is no way the press could have ignored an investigation into the first biological attack on U.S. soil, or Dr. Hatfill, especially after the attorney general of the United States had identified him as a focus of that investigation. Had we done so, we all should’ve been fired.
The public deserves to know about the quality of FBI investigations. Unfortunately the public—and the press—have fallen for what one of my law professors at the University of Pittsburgh calls “the myth of clues.”
What he means is this: The criminal justice system in this country is messy. Contrary to popular belief, most crimes in America are NOT solved by good-looking CSIs working in fancy labs or detectives who suffer from OCD and won’t rest until they close their cases.
The reality is that most crimes are solved when cops pressure confessions out of suspects. The truth is American law enforcement agencies are often not as good in reality at solving crime as they are on TV.
Criminal investigations are fluid and cops can—and do—make mistakes.
Reporters need to understand that facts gathered in an investigation can change and they need to be more vigilant about testing their source’s motives and knowledge in order to separate what I call the pretenders from the people who really know what’s going on.
That is no easy task, especially in a place like Washington, D.C., where government officials are loathe to be considered “out of the loop.”
Reporters must test their source’s knowledge by asking how a source came to know something. Were you in on the interrogation? Were you watching? Did you hear the suspect confess? Or did you read about it in a report or hear about it in a meeting?
The reporter who fails to probe the motivations of his or her sources is taking an enormous risk.
Although Dr. Hatfill’s case was settled, lawsuits like it continue to pose enormous danger to the press because of their very nature. They are civil cases and that means they are about one thing and one thing only. And that is money.
It is important to note that Dr. Hatfill’s lawyers did not cite any of my stories as examples of unfair coverage when they initially filed the lawsuit against the Justice Department. It wasn’t until months later that they added me—a reporter who worked for the country’s largest-circulation newspaper, owned by the nation’s largest newspaper chain.
There is no doubt in my mind that Dr. Hatfill’s lawyers dragged me into the case as a third-party witness because they looked at me and heard, “Ca-ching, ca-ching.” They wanted to go after the news company with the deepest pockets.
There also is no doubt in my mind that Dr. Hatfill’s lawyers filed a Privacy Act lawsuit to get around the higher burden of proof they likely would have faced if they had instead filed a libel lawsuit against me and other reporters. In my case, I had truth as a defense to libel.
Everything I wrote was true. Dr. Hatfill was the primary focus of one of the largest investigations in FBI history. He can file all the lawsuits he wants, but he cannot change that fact. In a Privacy Act lawsuit, the truth does not matter, and that is why those kinds of cases pose such a grave threat to journalists.
And the threat continues.
David Ashenfelter, a reporter for the Detroit Free Press, is now facing an eerily similar situation involving a Privacy Act lawsuit filed by a former federal prosecutor who was indicted and acquitted of charges that he behaved unethically in a terrorism case.
In 1996, the Privacy Act lawsuit emerged as a potent threat to the news media when the Washington Post, New York Times, LA Times, ABC and the Associated Press joined the Justice Department in paying Wen Ho Lee $1.6 million to settle his case and make it go away.
Mr. Lee, a Taiwanese-American scientist, had sued the government for violating his Privacy Act rights after charges that he spied for China fell apart.
I understand why the media companies settled the Lee case. They did not want their reporters to be forced to identify their sources. Unfortunately others saw the outcome and they want a similar pay day. It was a bad precedent to set.
I firmly believe that Judge Walton allowed Dr. Hatfill’s lawyers to misuse the Privacy Act lawsuit to drag reporters like me into the case to force news media companies to join the government in making a large cash settlement with Dr. Hatfill.
I am very proud of the fact that I kept USA Today from kicking in any money toward the government’s settlement with Dr. Hatfill. Gannett, the owner of USA Today, stayed away from the settlement negotiation table—at my request.
I did not want my former employer to be a victim of what I consider a blatant attempt at a shakedown. I also do not want USA Today to pay any of Dr. Hatfill’s legal bills—if his attorneys make good on a threat they made to ask Judge Walton to force me to pay the costs of Dr. Hatfill’s fight with me over the identities of my confidential sources. My hope is that Dr. Hatfill and his lawyers take their $5.8 million and ride off into the sunset.
If judges continue to allow Privacy Act cases to be used in this way against the news media, I worry that editors and publishers will avoid covering the tough story, the ongoing criminal investigation out of fear that somewhere down the line a civil lawsuit will be filed and their reporters will be dragged into the case like I was.
The misuse of these civil lawsuits occurs at a time of severe financial difficulty for the news business. Newspapers in Philadelphia have filed for bankruptcy. Newspapers in Detroit aren’t delivering papers every day of the week anymore. And nearly every major newspaper in America has cut back on staffing.
No company—not a news company or a company that makes widgets—can be expected to go on business as usual under the threat of the crippling legal costs of representing employees who face what I faced.
Journalism—or what’s left of it—is in danger of being destroyed out of fear.
A free press is a right that makes the United States unique in the world. I cannot believe that Congress or any state legislature wants civil lawsuits to be used as weapons of mass destruction against our free press.
It pains me and it scares me that we have reached this juncture. I wish it weren’t so.
But if the courts, Congress and state legislatures don’t step up, if they don’t take action, if something isn’t done, we may lose what is precious to us: Our freedom to hold our government accountable.
Thank you.