Steven Hatfill’s Lawyer Asks Some Questions

I have very mixed feelings about Steven Hatfill’s suit against those who leaked that he was a person of interest in the anthrax investigation. Unlike his lawyer, I’m not sure the federal officials who spoke to reporters broke the law (indeed, you could argue that some of them were trying to tamp down suspicion about Hatfill). Further, I disagree with Judge Walton that there’s not a scintilla of evidence against Hatfill. Nevertheless, I think Hatfill’s lawyer, Mark Grannis, asks some worthwhile questions.

First, should people like Steven Hatfill — that is, people injured by government leaks — have a remedy at law, and if so, what? It is not clear how victims like Dr. Hatfill can ever be made whole, if leakers and reporters join in a conspiracy of silence. Senators should expect a better explanation on this point before they make it impossible for courts to enforce the federal Privacy Act.

Second, how can the arguments and behavior of journalists in a case such as this be reconciled with the profession’s self-image as the public watchdog, bringing accountability to government? The public officials who leaked investigative information to Ms. Locy broke the law, ruined an innocent man, and violated the public trust. Shouldn’t our watchdog bark or something?

The leakers should be fired, prosecuted, or both — and reporters who care about government accountability should be racingeach other to tell us who these miscreants are. The fact that they shut their mouths tight and run the other way suggests that the image of reporter-as-watchdog does not reflect the current place of journalism in society, whatever may have been true in the past.

Third, if the law prevents courts from ordering reporters to identify anonymous sources, what will prevent government officials from using the private information they keep on us for personal or political score-settling? What will prevent them from simply lying? What will prevent reporters from inventing anonymous sources who don’t actually exist?

Fourth, how is a senator who votes for a shield law to convince his constituents that it is anything but a special favor for an influential lobby? When news of Judge Walton’s ruling hit the Internet, ordinary people lionized him. A commenter on one Web site asked whether Judge Walton could become a traveling judge, because it "looks he could be used all over the country." [my emphasis]

We need to find a middle ground, where journalists can protect real journalism, but where officials cannot hide behind journalist’s privilege to ruin the lives of people like Wen Ho Lee, Valerie Wilson, and (arguably) Steven Hatfill–or even to use legitimate legal inquiries into people like Eliot Spitzer to score political points. Anything less turns the press into a witting tool of government abuse of power.

And while we’re asking questions, I’ve got one for Toni Locy, the journalist being held in contempt by Judge Walton. Locy is currently a journalism professor at West Virginia University. You’d think she’d get hired there because she’s an example of what we’d like to encourage among budding journalists. Yet her excuse for not revealing her sources is that she can’t remember who told her what.

During Tuesday’s hearing, Bernius also argued that Locy could not remember who gave her information specifically about Hatfill and that she should not be forced to disclose the names of roughly 10 FBI and Justice Department officials who spoke to her generally about the anthrax investigation.

That immediately drew a skeptical response from Walton.

"I’m not suggesting that Ms. Locy would not be truthful, but it would be convenient for reporters in this type of situation to say ‘I don’t remember’ and then be off the hook," Walton said. "That would be one way to avoid the serious consequences of the law."

Now maybe it’s solely because I use so many fewer anonymous sources (or use them solely as background), but when I do use them, I try to keep straight what I get where. But Locy–like several of the journalists interviewed by Fitzgerald in the Scooter Libby case (Judy, Novak, Cooper, Russert, and Viveca Novak)–seems to have pretty slack standards for keeping notes.

Of course, the subpoenaing of journalists is likely to make this worse, not better, since the best way to shield your sources is to keep no notes and forget who told you what.

But it does concern me that we continue to see really damaging stories on people based on shoddy or no note-taking. So I’d add one question to Grannis: at what point does note-taking become a part of good journalistic standards again?

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57 replies
  1. Ishmael says:

    “Professionalism’ and “journalism” can be a real chimera sometimes – lean too far one way, and you risk having a “licensed” journalist profession, where Judy Miller is licensed and EW is not. On the other hand, there should be some form of discipline imposed on journalists, presumably by the vaunted editors that we hear so much about, to look into their work habits and check their notes, sources, cataloging practices, etc. Of course, editors don’t exist in the blogosphere (I guess they never heard of comment threads). Matt Coopers notes, Judy’s notes, are pretty damning work product, even for history’s first draft written on the fly.

    • emptywheel says:

      I’m not sure I even want editors to baby-sit notes.

      But the shoddy standards of note-taking in the profession (don’t forget Novak, who doesn’t take them) ought to be an object of scorn. AFAIK, I’m the only one asking why Professor Locy’s notes aren’t up the standards of revealing who her sources are.

      And because I beat him up all the time, I should say that Isikoff appears to have had sufficiently detailed notes to reveal his sources for his story (after being released by those sources). So score one for Woodward (by far the best note-taker of the Libby trial) and, presumably, Isikoff.

      • Ishmael says:

        Libel law is not my field, but it would seem to me that if I were asked to review an article for publication, that a review of the notes would be the first thing I would do – so why would editors not want to do the same when they are responsible and presumably bound by the same confidential source obligations as the reporters?

        • emptywheel says:

          Hadn’t thought about libel, but presumably, yeah, the AP Hatfill articles should have gone through libel, not least because he wasn’t a public person.

          • FrankProbst says:

            Hadn’t thought about libel, but presumably, yeah, the AP Hatfill articles should have gone through libel, not least because he wasn’t a public person.

            Possible libel is really the only reason I see for this case going forward. Hatfill lost his job because he lied on his resume, didn’t he? I have little sympathy for him there. However, the media frenzy around him seemed to be based on the fact that anthrax-sniffing dogs went bonkers any time they went to places Hatfill had visited. That’s easy to verify with a few simple questions: We have anthrax-sniffing dogs? Really? Who was handling them during the anthrax investigation? Did they really go nuts when they were in places that Hatfill had been?

            I really don’t care who the sources were, but I’m VERY interested in who was charge of the dogs. Because I’ll give you even odds that that part of the story was pure bullshit. If so, THEN I’d like to know who the sources are.

            • emptywheel says:

              Yeah, that’s where I am on this. Lee was proven (mostly) innocent of the charges. Plame, too. But I’m not sure about Hatfill. Reporting to journalists at the scene of a search how the dogs are responding probably isn’t a crime at all. But making up the response of the dogs is, if that’s what happened. Though I’ll have to check, bc I think the sniffing dogs was Isikoff’s story (not that that discredits your point at all), and Isikoff has already revealed his sources to Hatfill. So it would be easy enough to check, right?

            • PetePierce says:

              I’m not expert in Hatfill’s CV/bio, but his medical training in Zimbabwe is pretty sketchy. In all fairness though, I don’t know what his medical training was like–getting South African board certification in heme path in 2-3 years less than it would take here and I don’t know how to extrapolate the quality of his education there to here. The one year spent in Antartica is kind of interesting. I’m not sure where you would apply heme path training there, but that’s also not what he did directly after getting boarded there.

              The other degrees he claims to have piled up read like science fiction. I’ve never seen that combo in a human physician walking in this country. He claimed to have 3 masters degrees in “microbial” genetics, biochem, and “experimental” pathology. He also claimed a concommitant Ph.D. in cell bio, but the institution denies he has this. Frankly he would need to be two people to have earned these concomittant degrees in this country–and why he would do this even if it were possible would be an interesting question. Wikipedia says that in discovery in his suit against Ashcroft he forged a diploma. I don’t know what the real facts are there.

              I don’t know whether his surreal CV (medically speaking) caused him to loose any jobs, but I can tell you when the FBI showcased him writ large as a person of interest in mailing anthrax to people, that alone was enough to make Typhoid Mary look like Angelina Jolie.

              • PetePierce says:

                I don’t know whether his surreal CV (medically speaking) caused him to loose any jobs, but I can tell you when the FBI showcased him writ large as a person of interest in mailing anthrax to people, that alone was enough to make look Angelina Jolie like Typhoid Mary(not the reverse).

  2. behindthefall says:

    I never was one for taking notes in bound books with numbered pages, but it always seemed that a third hand would be useful: two for doing the fiddling and one for taking notes. Of course, that’s why we had an assistant or two, or another researcher who stood around and asked questions about what was going on and wrote everything down. It’s not just the data; it’s how you got the data, too.

    For interviewers and journalists, I would have thought that notes were the data. You mean these people simply trust their memories?

    • MadDog says:

      In conjunction with your comment, and my suggestion at # 11, I also agree that there must be some type of “serious threshold” met regarding public need before a Judge may penetrate a journo shield.

      Hard to define what that “threshold” is, but that’s why doG gave us lawyers. *g*

  3. kspena says:

    OT–Adrienne Kinne, Arab linguist with military at NSA is now testifying at Winter Soldiers about the illegal wiretap listening she did on American in Iraq to American at home phone calls. Ooops…

  4. MadDog says:

    Perhaps a legal proviso is warranted wrt to notetaking such that in cases involving a journalist said notes can be reviewed by the Judge ex parte and in camera. Just like the House bill for FISA defendants.

    In the case of the journos, not having notes may then be inferred in arguments to reflect negatively on the journos’ publishings.

    As an example, Toni Locy would have to submit her notes to be reviewed by Judge Walton ex parte and in camera. Should she not be able to produce notes documenting her publishings, an inference that she “invented” material would be arguable against her.

    Not saying this entirely solves the problem, but it might “force” the journo profession to not adopt bad Cheney-like habits (i.e. if we don’t put it in writing, nobody can ever prove it happened.)

  5. chrisc says:

    I’ve never quite figured out Hatfill. I’ve always thought that the anthrax culprit was working in conjunction with those who wanted to force the passage of the Patriot Act. So, if it was Hatfill, wouldn’t he be working at someone else’s direction? And if so, why would the Bush Adm allow DOJ to go after him so hard? And if he did do it, why wouldn’t he spill the beans? Well, maybe they would just kill him if he did that. Still, I have doubts about him.

    If I remember correctly, Judy interviewed Hatfill while she was on the short leash after she got back from Iraq. He was showing off the portable wmd trailer. I think it was right around when the WH was trumping the story of the dude who buried the parts for Sadaam’s nuclear weapons program under his rose bush.

    The anthrax case has always mystified me- there is barely a peep in the press or from the terror president or Congress- you’d think they would have”moved heaven and earth” to find the terrorist in our midst by now.

    • behindthefall says:

      Youda thunk.

      Don’t the Continuity of Government executive orders (or whatever they’re called) put the Executive Branch in charge of seeing that the government functions in some form if Congress is no longer able to assemble in Washington? A few envelopes of powder were a pretty efficient way of coming close to making that happen.

  6. WilliamOckham says:

    No, no, no! The First Amendment belongs to all of us, not some government-anointed set of miscreants. No special privileges for so-called professional journalists. Shield laws don’t protect freedom of the press. The federal shield law’s primary effect will be to further the creeping tyranny that’s destroying our democracy. Look at what’s happening at DOJ. With a federal shield law they will be able to destroy anyone.

  7. PetePierce says:

    If the FBI has substantive evidence on Hatfill or any of the other 12 people they say they are considering it’s moving at one of the most glacial paces I’ve ever seen in a high priority national investigation. Hatfill’s case reminds me of the Cold Case TV series.

    I haven’t seen any of the rationale for why he isn’t completely innocent. There’s no way in hell he can be made “whole” career wise, and it’s probably been a bitch to be Steven Hatfill.

    I remember EW did a couple at least previous well detailed and interesting blogs on Hatfill:
    this post and also this one.

    I don’t perceive that the the feds were trying to tamp down suspicions of Hatfill though. I think they were simply trying to lean on him with enough pressure to break him, or force some error helpful to cracking the case, believing he was guilty.

    I know in Spitzer’s case they were shameless basically trying to humiliate him and his family by writing a cheap porn subplot into their affidavits in addition to weighing a prosecution and investigating financial inpropriety in a way that makes the DOJ look pathetic, but this is a different paradigm. It has a common denominator of the same absolute lack of professionalism in the same agencys–DOJ and their branch FBI.

    The kind of damage done to Hatfill also stems from the fraternalism and drinking in D.C. bars that has gone on with FBI and people like Kelly
    Arena of CNN or as I think of her, Ms. Mute Button Stat.

    Should Hatfill have a remedy at law? Absolutely. Are there many or any–it doesn’t look that way. The litigation is tortuous to follow but he’s basically been slammed by every appellate court and trial court I’ve been able to find.

    Walton’s decision to fine one of the reporters who gratuitously leaked false information on him is pending in the D.C. Circuit and I don’tknow what the outcome will be.

    I don’t think anyone believes that if the FBI names you a “person of interest” in a terrorism case that has worldwide coverage, that your life is going to be anything but upside down and your ability to earn a living decimated.

    Hatfill is a doctor whose training is basically as a hematopathologist but it’s kind of patched together in an unusual way not accredited here in the U.S. From what I can tell of his resume, it’s doubtful, even had DOJ not trashed him completely, or he had any brush with the law if he were in “mint condition” he could get a job anywhere in that ballpark or as a pathologists in the U.S. without taking and passing pathology boards, and possibly even National Boards first that are required of all M.D.’s who practice in the U.S. (and aren’t adjusted per state–they really are National). But he does have experience and expertise he’s developed OJT with jobs in Infiectious Disease at the Army research institute, and he worked for DOD’s biological warfare defense unit subspecializing in Ebola virus treatment (if in fact any with efficacy exists yet).

    So while there is a niche for Dr. Hatfill’s experience/expertise since BW has gotten to be more in vogue today as a concern, DOJ foreclosed that fairly effectively when they trashed him. If in fact, as they claim he’s not a target or a suspect, and no longer a person of interest, they’ve done damn little in the rehabilitation department, and when you’re looking for an image/career builder–the DOJ ain’t it, unless you’re auditioning for the federal bench, or a job as an attorney.

    EW writes:

    The leakers should be fired, prosecuted, or both — and reporters who care about government accountability should be racing each other to tell us who these miscreants are. The fact that they shut their mouths tight and run the other way suggests that the image of reporter-as-watchdog does not reflect the current place of journalism in society, whatever may have been true in the past.

    I think in the Hatfill case the correct image of reporters are as shills for DOJ who have no desier or ability to fact check.

    Third, if the law prevents courts from ordering reporters to identify anonymous sources, what will prevent government officials from using the private information they keep on us for personal or political score-settling? What will prevent them from simply lying? What will prevent reporters from inventing anonymous sources who don’t actually exist?

    Exactly. Great point. Nothing will prevent this.

    You have two parties boogying in this equation. You have DOJ anxious to close a case and reporters who are dysfunctional facilitators of fiction about the case.

    If DOJ kept their mouths shut until they they had credible evidence, say like they’re doing with the emails trashed, the US Attorneys scandles (pleural), and torture this wouldn’t be a problem. Instead they are actively using reporters as their own personal Madison Avenue agency, and reporters are under pressure to sell their media content.

    And right now, whoever was or were mailing Anthrax to kill people is undetected.

    • Nell says:

      Should Hatfill have a remedy at law? Absolutely. Are there many or any–it doesn’t look that way.

      Didn’t Richard Jewell make the FBI pay for the way he was smeared as the suspect in the Olympic bombing? Or is his case different because they actually held him as a material witness, etc.?

      • PetePierce says:

        Didn’t Richard Jewell make the FBI pay for the way he was smeared as the suspect in the Olympic bombing? Or is his case different because they actually held him as a material witness, etc.?

        Jewell was hounded by FBI/media or the Federal Bureau of Hooker Investigation as I know it now (F.B.H.I. in a way every bit as systemic as Hatfill. The local media affiliates began camping literally on his doorstep 24 X 7. If only there had been some sex in the story, the FBI media conglomerate would have thrieved even more. In Jewell’s case, we learned that while working as private security, he actually evacuated people from the bomb site and saved many lives. To refresh people, Eric Rudolph, who also bombed three other places, two abortion clinic, and a lesbian night club, put the bomb under a bench. About 24 hours after the incident, the FBI BAU came up with a profile of Jewell.

        The FBI stole Jerwell’s rifles, but the FBI has also stolen thousands of automatic weapons and thousands of laptops and no one has made a peep. You paid for ‘em if you’re in the US. Welcome to Charity for the DOJ. Those items are either now the personal property of FBI or US Attorney theives, or they have been sold.

        Kent Alexander was the US Attorney that authorized the stealing and destruction of much of Jewell’s property. He now defends Emory University in cases where they amputate the wrong leg or excise the wrong eye when the patient isn’t examined immediately prior to surgery.

        Jewell was sued by two bombing victims–the media was obviously discovery enough for those attorneys.

        As the wikipedia points out Leno called him “Una Doofusfus” and others called him “Una Bubba.”

        Jewell is dead and Leno is studying record contract offers from Sony and the networks that are unprecedented for a late night talk show host.

        The lawsuits are listed in the wikipedia article.Jewell got monetary awards from NBC for Tom Brokaw’s reporting, the NY Post, Piedmont College.

        In a convoluted suit against the Atlanta newspaper, Attorney Lin Wood is dismissed an eleven year suit to pursue larger appeals now pending.

        The account of this convoluted libel case is here.

        • PetePierce says:

          FBI “thrives” should have been the spelling when they can function as “whore house police” if the john is a democrat. Otherwise they are whore house patrons, or leave them alone. Attorney Lin Wood dismissed the case against the Atlanta newspaper to procedurally appeal. His strategy was that he can gain larger libel damages for Jewell’s estate this way. Time will tell.

      • PetePierce says:

        They never arrested or held Jewell, but along with local media affiliats who fed national media air time, the FBI camped on Jewell’s doorstep for a few months and followed him every where he went literally like OJ’s Bronco, or more recently media choopers followed Spitzer’s SUV from NYC to Albany.

        I don’t know about you, but personally, I’m always educated and enlightened by these chopper cams with overhead views of SUVs bleeding gas onto an interstate.

  8. PetePierce says:

    I deleted it out of my post, but essentially I addressed the only evidence proferred by DOJ and I think scientifically it totally sucks.

    In a previous post, EW pointed out that bloodhounds brought to places Hatfill had been alerted, meaning they barked, and got a little more active than our friends Beckham and Satch are here.

    The FBI claimed they “went crazy.” I’d like to RX a course in “You Ain’t Nothin’ But a Hound Dog 101″ for the FBI agents in this case. I’ve owned Bassets and taken care of people’s blood hounds over the years, and the alerting of dogs as evidence in a court is about as reliable as getting your fortune read by Madam ZuZu off Route 83 who has a couple tires in her yard and some broken pink flamingos next to them who works the night shift doing lap dances.

    I can bring a dog into your home and have it “alert” and it’s worthless as objective evidence. That courts allow it is egregious– but we have several potential books in what the federal courtts do every day with respect to medical devices and other product liability situations when they don’t have a clue about the scientific aspect. Some recent S. Ct. cases speak to this and Daubert, Joiner, and Kumho Tire, haven’t been much help IMHO.

    Reggie is skeptical of Toni Locy’s lying that she doesn’t remember the source of info about Hatfill? LOL–he should have sanctioned the clown that’s defending her for that outrageous Panochio nose maneuver. Locy has notes stashed somewhere on some HD. Every place she ever darkened should be raided and her HDs and all paper work should be seized.

    Reggie may not be suggesting Tony Locy isn’t truthful, but I’d like to stipulate she’s lying through her teeth.

    EW’s analogy to the Libby case is right on point.

    As Scott Horton has suggested the last few days in many of his Spitzer commentaries this loose ethics relationship with federal law enforcement and journalists has become all too commonplace.

  9. readerOfTeaLeaves says:

    But it does concern me that we continue to see really damaging stories on people based on shoddy or no note-taking

    The very act of writing is a process that helps people clarify, refine, and organize information. Personally, if it’s business, I take notes. I draw diagrams. I use colored pencils to help me clarify relationships.

    Then, I date them. And I file them.

    I have no patience for people who ‘never take notes’.
    I admire geniuses with complete, instant recall.
    I’ve just never actually met one.
    And I’ve met plenty of very, v-e-r-y bright people.

    The people that I count on, or work best with, are also note takers.
    People who can’t be bothered to write notes irritate me.

    Anyone who doesn’t take notes, or leave tracks (aka: Cheney, Rove, Bush) is not to be trusted. Too much latitude for ‘plausible deniability’, which is form of evasion and deceit that allows the perpetrators to think they’re smarter than everyone else.

    If I ran the world, anyone without the presence of mind to take some notes, date them, and organize them would be guilty on grounds of shoddy stupidity; ‘plausible deniability’ be damned.
    Butt-covering by way of sloppy, lazy habits should not pass muster in any sane, orderly society.

    Not that I have any strong views on the subject… (ahem…)

  10. kspena says:

    The resonance between the Plame outing and the Hatfill accusations are bizarre: false leaks to the press, reporters who don’t remember, judge Walton, punishment to arouse fear, character assassination, circular second-guessing. As bush said, “We’ll never know…” Without Fitz’s investigation, we’d never suspect cheney/bush could/would personally pull-off a plot to out a noc. But now seven years into this administration, we can see how easily they take death and destruction in stride. Did cheney need an anthrax plot to further his schemes to claim power??? The plotter had to be a republican… But maybe that’s just the way Washington works…

  11. bmaz says:

    What if Hatfill is just a pig and leaves pizza crusts around everywhere he goes and the dogs are smelling that? What are the customary industry standards for certification of anthrax sniffing dogs anyway; and who sets and regulates them? Or is this just some “wonder mammal” like Lassie or Flipper or something? Was there video of the searches with the wonder dogs? Because there sure should have been. Or are these yet more video items of evidence that have been “misplaced”? What was the nature of the dog’s response? Did it emit a “plaintiff wail” like Nicole Simpson’s Akita? (Great trivia: Nicole’s Akita was named “Kato” too). I don’t see how the dog(s) here meet any evidentiary standards for admissibility or reliance by a court.

    • Ishmael says:

      Seems to me that neither the “bloodhound reaction”, nor the Locy story pass the “smell test” here – pardon the pun!

  12. BayStateLibrul says:

    I’m a Libra, and struggle with it but I’ve got mixed feelings…
    Without Fitzy jailing Judy, the plot might have ended in a circle jerk.
    Yet, I admire authors Mark Fainaru-Wada and Lance Williams, who were facing prison sentences of up to 18 months for refusing to divulge their source in the BALCO case. Federal prosecutors dropped the case when Ellerman pled guilty…
    Intersting to note that U.S. District Judge Jeffrey White who threatened
    the authors, also was the Judge who immediately closed down Wikileaks.org that allows whistle-blowers to anonymously post government and corporate documents (later he recanted)
    Hmmmm… so its
    Core violations of our criminal justice system that corrupts the legal system versus the value of leakers to us so we learn the truth…

    Personally, I hate the secrecy of our government, so bring on the light

  13. BayStateLibrul says:

    Fucking Dodgers, first screwing Brooklyn and now Vero Beach…
    Giving up Vero Beach for Arizona?
    Bmaz, how could you let this happen?

  14. Mary says:

    I never seem to have time to really dig in on this when it comes up, but I am hugely in favor of a shield law. Not the one Schumer has cooked up, which, IMO, is probably unconstitutional in that it attempts to great “free-er speech” for those who make money from their speech than for those who do not, but definitley in favor of a shield law.

    Hatfill got the raw end and that is too bad. In complicated situations with competing interests, that is going to happen, just like respecting due process means that now and then criminals go free.

    As to the lawyer’s questions:

    First, should people like Steven Hatfill — that is, people injured by government leaks — have a remedy at law, and if so, what?
    Yes. Libel and slander laws.

    It is not clear how victims like Dr. Hatfill can ever be made whole, if leakers and reporters join in a conspiracy of silence. Well, if he was injured by the reporting and that reporting was false, he can recover just as easily against the reporter and his/her paper (generally the deep pockets – along with their insurer – for the recovery) whether or not the source on their story is made known. Is it ideal? Maybe not, but with joint and several liability I don’t know how someone is made “more whole” by getting a big judgement against a deep pockets insurer and paper AND a 50,000/year FBI agent vs. getting that recovery just from the paper and its insurer.

    This isn’t a situation of no recovery. I will say that there may need to be changes to the burdens and presumptions to facilitate recovery for victims when sourcing is being deliberately obscured.

    But when I weigh the situation in the balance with having Carlotta Gall and Dana Priest caught on the AIPAC espionage hook that has been created, I’m very solidly in favor of reporter protection. The tiny glimmers of sunshine that we have had on torture, lies to take the nation to war, suveillance, nsl misuse, misuse of prosecutorial office to jail innocent people for poltical purposes, etc. – – those are all things were reporters have gone to not just risk, but extreme risk.

    Actually, with the current DOJ (and that includes Fitzgerald and his office who did, after all, help make precedent on getting torture statements accepted by ou civilian courts) the ONLY thing that has made the stance taken by the reporters in bringing government and DOJ crime to the forefront less risky is the tradition, now fast ebbing, of courts protecting journalists and of the espionage act not being used on recipients of information. We’ve seen a goodbye to both over recent years and it should be making people nervous – just as nervous as when they began to read about aluminum tubes and hear about yellow cake from Niger.

    And I know that Fitzgerald has been actively lobbying and propagandizing against the shield law, but before anyone gets too carried away on that, remember how strongly he lobbied FOR the Patriot Act (and for my part, I tend to obsess and dwell over how well he set up the civilian court system to accept torture evidence and the evidence of masked tortureds too, helping to pave the precedential path for unclean uses of the court system and law). Maybe I misremember but I tend to recall a spiel in one recorded debate section where he indignantly and with superiority told the ACLU lawyer and crowd that they could just trust the FBI/DOJ to not abuse its power (uh, would that be the FBI that was going to ship a detainee to Jordan to be softened up; or the FBI that has had year after year of thousands upon thousands of NSL violations; or the FBI that blew off the FISC and went ahead and collected information in violation of their ruling; or the FBI that collected information the NSA was prohibited from collecting only to feed that information to NSA databanks; or the FBI that never got around to collecting evidence on torture (or the DOJ that not only never got around to sending out preservation notices but that, in Maher Arar’s case, directly participated in the conspiracy to have him tortured including signing off on the Syria shipment paperwork); etc. etc. etc.

    I don’t think Fitzgerald was all that prescient or even believable when he was selling the worst parts of the Patriot Act and I don’t think he’s all that believable or a pillar to lean on regarding the shield law.

    And as to Hatfill’s lawyer’s point that, “The leakers should be fired, prosecuted, or both” I agree. But I disagree that a shield law will change things on that front much, one way or the other. There is no shield law now and not only is there no shield law, but Fitzgerald put a reporter in jail who did not even publish any lawbreaking or libelous information, merely to engage in he said/she said deconstruction of what her “source” for an unwritten story may have said to her that was different from what he admitted saying to her.

    What stands between the leakers being fired or prosecuted isn’t a lack of knowledge by the government (and how about requiring IT to provide information rather than the reporters), it is prosecutorial corruption.

    That prosecutorial corruption not only will not change if the shield law is blocked (we’ve seen it in play over the last 7 years on Executive Branch crime, all with no shield law) but it will be enhanced and strengthened beyond belief.

    I’m not sure that many here know or care much about the value or threat of precedent and building precedent, but in areas and fields of law, people work for years and years to build lines of precedent to get them to their ultimate goal – picking the ‘best’ cases for their wanted outcome, which can then stand for the propositions they want in cases much less factually appealing.

    Hatfill’s case is factually appealing. Fitzgerald’s Saleh case re: torture statements was factually appealing. The AIPAC case is factually appealing. The Plame case was factually appealing.

    Nothing spreads legally transmitted diseases quite so thoroughly and so quickly as a factually appealing case.

    I’ll complete my heresy. In a world of do-overs, if I knew then what I know now (that Fitzgerald was never planning on pursing any “crime” other than the Clintonesque false statements crime) I don’t think I would have been able to muster support for Miller being sent to jail. It is very scarey precedent, IMO, to have prosecutors have the unfettered right to ship off reporters to jail over he said/she said matters involving those who may have been their sources, about stories never even reported. When that is bootstrapped on to the AIPAC situation, you are actually looking at lawyers who have 5th amendment problems and issues (and fwiw, I think in Hatfill’s case, given the arguments that have been made in the AIPAC cases about receipt of classified information as a crime, Locy and her lawyer better start thinking about invoking the 5th as her way of not disclosing some – wouldn’t probably work for all in that particular case – of the info).

    IMO, a case like Hatfill’s is a seven diamond hooker and no matter how many diamonds, if you go bareback with journalist protections there, you’re going to end up in intercourse with every other legal and factual intersections that hooker brings with it, and the likelihood that they will disease our legal system is just too high IMO.

    all fwiw – can’t do it justice in a few reactive paragraphs.

    • skdadl says:

      Mary, this is a question from an amateur (although one who is fascinated by and deeply grateful for your teaching), but an amateur who really believes in democracy and therefore believes that ordinary citizens should be able to grasp the law — or, put another way, there is something wrong with the law in a democracy when it becomes too convoluted for ordinary citizens to grasp.

      In my amateur view, there is a pretty clear distinction between serious independent research and laundering propaganda for a government, and I think that most citizens can and would grasp that distinction, and support it. I’ve spent my adult life in publishing; my dad and three of my siblings are reporters. So it took me a while to think through Fitzgerald’s pursuit of Miller — love the C18, and that was very hard to accept. But in Miller’s story (and others’) I saw the beginnings of a ministry of propaganda, which I also do not want to accept. I don’t see that it mattered whether she published or not. What mattered was that Cheney tried.

      You sort of upset my applecart by writing this, though:

      I’m not sure that many here know or care much about the value or threat of precedent and building precedent, but in areas and fields of law, people work for years and years to build lines of precedent to get them to their ultimate goal – picking the ‘best’ cases for their wanted outcome, which can then stand for the propositions they want in cases much less factually appealing.

      That’s a layer down deeper than I’ve ever thought before, and gosh, but I hope it is not true. I really do. This makes me so sad. I believe in your first amendment and our section 2 so much.

  15. JohnLopresti says:

    I think the commonlaw tradition from the other side of the pond has something to do with our currently ascribing greater expertness to bloodhound response on a trail than other breeds. Given the friendlines to canines for which this blog is renowned, I will defer to our millenial lab readers and others for verification of the accuracy of that gloss on their genus’ important traits and history.

    On the instant case, I find it cryptic and impenetrable still. On the Wall Street Journal opinion blurb by the attorney for Hatfill, its rhetorical devices as a text form reek of adversarial advocacy, though I should use a more palliative descriptor there, as the court as forum is intended to harbor energetic argument, which is the venue in which Grannis’ polemic style belongs. Granted: wsj editorial opinion section is a longtime continuum of biased and conservative commentary, and Grannis’ argumentation fits nicely with that tradition. Yet, as a commentator above begins to elaborate carefully, Grannis’ points seem overbroad; and, I would add, are transparently specious for their presumptions.

    The facts remain, as other writers observe, there was much politics about the reportage about Hatfill from the outset; the entire series of incidents occurred in those interstices of public anxiety which were extant at the time; and the targets of the poisonPowders in congress were more than postalWorker packageSorters; rather, the addressees were unlikely targets of extremism. I have no decision or inclination concerning Hatfill’s case.

    I can appreciate Walton’s sense of needing to discharge his responsibilities. And the substrate in law surrounding journalism in the US is a complex area upon which he might have to deploy sanctions.

    I agree, further, with w.o.’s anxious view about meddling with speech protections. But I think a federal shield is a start.

    The dynamic of the reporting on Hatfill also was in the setting of the expert A1 cutout strategies of various stripes being deployed by Libby and associates. But there was also a background of Tenet’s hassles with people who were busy compartmentalizing advisory groups within the executive branch, as well, concurrently. I think I am saying there are many suspect origins of the terrorism of the anthrax mail incidents. But there are a lot of power gambits by several interests involved in the due process part of making Hatfill as whole as possible in the matter, which is the stage in which we find affairs now. I support NYT’s and Dalglish’s solid concerns about increased pressures to limit reporting and increase exposure of reporters to jailtime; rcfp consistently publishes records of the heightened perils of being a journalist in the past few years; but I think NYT too conservative in its gauged positions, and rcfp’s tenor seems a excessively vivid without addressing the legal nexus which is binding both Walton and Locy into their mutual standoff.

    With respect to the confluence of problems that put Judy behind bars for a few months, I think it is important to recognize her circumstances were fairly unique; and, as a writer mentioned, only partly investigated. So, I think only as a protection of journalism consideration would Judy’s plight bear any relevance to Locy’s. I think there was a way of proceeding with Judy other than incarceration, and there is a similar out for Locy, if Walton can see the merits of that tack. I would put the Hatfill matter in cryostorage for a while and encourage investigators to follow all their leads even though years have passed. One commenter above seems to know a lot about bioscience; and I defer to that expertise; however, there could be a discrete discussion of professional standards as known to characterize pathology practitioners, a discussion unlikely to appear anywhere I know of at present, other than in personal private conversations. It is a fascinating branch of “medicine”; and it harbors many extravagant individuals.

  16. lllphd says:

    several quick points, and i apologize for not dutifully replying to each commenter.

    first, this thing with the dogs. ishmael, no kidding! does NOT pass the smell test, figuratively or literally. my question has to do with plausibility and noses, bloodhounds or otherwise. how the hell would you train ANY dog to “respond” to anthrax? i mean, would that not, by definition, kill them?

    on the other hand, if the dogs were instead trained to actually simply respond to anything hatfill, well then, of COURSE they would respond wherever he goes. by, er, design.

    which leads to another point; the way the story is unfolding here – especially the fact that there has been so obviously no more active intent to actually find the athrax culprit than there has been to find bin laden – very strongly leads to the suspicion that the anthrax was planted. and by a republican intent on disrupting congressional procedure in the face of the patriot act. i mean, the two offices – leahy and daschle – don’t require a lot of dot-connecting to draw that suspicion, if not conclusion.

    therefore, pete, i hardly think the ‘govt’ really believes hatfill is guilty. oh, the rank and file might have swallowed that koolaid for investigative and prosecutorial and PR purposes, but those at the top know he’s not. the facts that he is a fur’ner and his credentials were so easy to discredit both made him the best, if not perfect, patsy. (and by the by, a researcher, whether MD or PhD, does not require state board licensing anywhere that i’m aware in this country, especially at the lab level; that’s only required for clinical purposes. and it’s not at all difficult for me to imagine heme-path having research possibilities in the antarctic, for what that’s worth.)

    in this respect it does parallel the spitz case, in that they needed him out of power – just as the govt needed someone to go after in the anthrax case – and the prostitution made the case for them – just as hatfill’s credential situation made the case for them.

    anyway, pete makes this case in his #20 response.

    and finally, the shield law. bravo, ockham (such the razor, you are!) nailed it: A SHIELD LAW WILL **NOT** PROTECT FREEDOM OF THE PRESS!

    the ONLY thing a shield law will protect is leakers. doncha know that serial leakers like rove and cheney and the like would be delighted to have their sinister workings protected!!?!?!? let’s get real about this, people.

    now, granted, there are good leakers and bad leakers, just as there are good witches and bad witches. but the shield law is NOT the way to go on this one. the protections for whistleblowers who leak should remain in place and strengthened. THAT should take care of that end of the issue; no real need to exploit the reporter’s role in this sort of situation.

    as for protecting the journalists, i happen to believe journalists should, and good journalists DO (however rarely these days), know how to take care of themselves and their craft.

    the complaint i always hear in reaction to a position that resists a shield law, or in reaction to the resistance to disciplining a journalist for not revealing sources, is that these things will freeze out the relationship that journalists must have and keep with their sources in order to continue informing the public. other potential sources would be afraid to come forward, etc.

    well, this is just so weak on two counts. first, why would any journalist have such an iron clad rule as this? for my part, and ianaJ! i would have no problem whatsoever holding to a professional rule that i would not reveal any sources UNLESS i received evidence that the source was lying or using my position to advance an abuse of power.

    then, and only then, all bets are off.

    because, my friends, count two: the purpose of a free press is to EXPOSE ABUSES OF POWER.

    instead of a shield law, we need laws that provide for showing reporters who resist revealing a source who might have engaged in criminal activity – under cover of the court with appropriate agreements and protections of that reporter AND the information in place – such evidence that might expose the source is lying or abusing power. the reporter can then still choose what to do, but his/her decision is not based on his need to keep sources at all costs, it’s based on his need to exercise his first amendment RESPONSIBILITIES, i.e., exposing abuses of power.

    after all, what reporter would not really want to report that a source had used him to report a lie that protected their crimes and further their abuses of power? sure, novak, judy, that ilk. but such a shift in the way reporters view their responsibilities – and the way they actually talk about those responsibilities – would do wonders in exposing and damning the likes of novak and judy and faux news, etc.

    it seems to me what is holding back any reasonable debate on these particular issues is the fact that the prevailing attitude is just so damn wrongheaded. tucker carlson was ever so correct (ha! fancy that!) and candid about it when he recently exposed the currently accepted role of the press in this country: the role of the press is to PROTECT those in power, whether they abuse it or not, implicitly in order to maintain a steady stream of stories (read, cash).

    i agree with ew and those here who’ve said that claiming to not take notes is just unbelievable because it’s so unprofessional. but this, as with my suggestion on the first count, above, speaks to a need within the profession of journalism for some very very serious reformation along the lines of recovering the ORIGINAL INTENT OF THE FREEDOM OF THE PRESS. there really do need to be serious debates about what journalistic integrity means, and that has to include discussion of the real meaning of a free – and responsible – press.

    notions of a shield law reflect the press as an information stream whose source must not be disturbed. that is simply NOT the purpose of the free press. moreover, there is NO other profession – not priests or doctors or lawyers – that does not have exceptions to that relationship protection. all of us, as professionals, are mandated to report the existing or impending committal of a crime. journalists should not be held above these other pillars of our society, especially if doing so will only serve to protect criminals bent on destroying our democracy. reporters should be granted privileges, certainly, and protecting their work in exposing abuses of power should be sacrosanct.

    so, in essence, it requires immense integrity to hold true to these principles at such a vulnerable and fragile boundary in our democracy, that place where power and scrutiny of it meet. it is at this boundary where our mettle as a democracy is tested, which requires the clearly articulated exercise of that integrity in order to function.

    but we have to get to that boundary. to my mind, we’re floundering out here in medialand whining about choking reporters, as if that would never be a good idea! some form of quality control is required of this profession, as well, and – not to repeat myself – it would seem the simplest rule to take on actively would be to adjust the source protection to a QUALIFIED source protection: do not lie about this story, or you are outed. do not use me as a conduit to abuse your power, or you are outed.

    that will flush out or silence the liars and abusers, and that would be, i’m thinking, just fine for the profession, for the first amendment, and for the democracy. the reporters can not only keep their professional integrity intact on a personal level, this position would work toward recovering the integrity of the profession on a general level, working to preserve not just the application, but the spirit of the first amendment ‘protections’ (which – never forget – carry with them immense responsibilities).

  17. emptywheel says:

    I’m not sure that many here know or care much about the value or threat of precedent and building precedent, but in areas and fields of law, people work for years and years to build lines of precedent to get them to their ultimate goal – picking the ‘best’ cases for their wanted outcome, which can then stand for the propositions they want in cases much less factually appealing.

    [snip]

    I’ll complete my heresy. In a world of do-overs, if I knew then what I know now (that Fitzgerald was never planning on pursing any “crime” other than the Clintonesque false statements crime) I don’t think I would have been able to muster support for Miller being sent to jail. It is very scarey precedent, IMO, to have prosecutors have the unfettered right to ship off reporters to jail over he said/she said matters involving those who may have been their sources, about stories never even reported.

    Two points.

    First, your argument about precedents works two ways. The precedent here was Floyd Abrams and the NYT attempting to use Miller to push Branzberg far beyond where it went. Abrams made that choice, not Fitz. It was a stupid choice–one the WaPo, with a lot more at risk–chose not to make. But you have Abrams to thank as much as Fitz for precedent here.

    Second, I understand you like to think solely through hindsight and ignore the record on Plame, but the record simply doesn’t support your repeated assertion that Fitz was only going after perjury. There is abundant reason to believe that Judy shaded the truth to avoid revealing that she knew Plame was covert, which put IIPA off the table for Libby. It’s easy to say now that, well, Judy didn’t have notes proving she knew Plame was covert,so Fitz was just tilting at windmills, but Fitz had good reason to suspect (and probably still suspect) that Judy got an IIPA leak.

    Furthermore, if we didn’t have Judy’s testimony, we would now know that Dick Cheney ordered Libby to out Plame. We may not have been able to prosecute Cheney, but I am glad it has been revealed.

  18. lllphd says:

    ew, did you mean to say “we would noT know that dick cheney…” in your last graf? if not, that’s the only way it makes sense to me, and i’m therefore missing something.

  19. Rickbrew says:

    We need to find a middle ground, where journalists can protect real journalism, but where officials cannot hide behind journalist’s privilege to ruin the lives of people like Wen Ho Lee, Valerie Wilson, and (arguably) Steven Hatfill–or even to use legitimate legal inquiries into people like Eliot Spitzer to score political points. Anything less turns the press into a witting tool of government abuse of power.

    I once supported shield laws, but Judith Miller and Dick Cheney clearly demonstrated how such laws could be used to get classified info that supports the government position out into the media while preventing any reasonable evaluation of that info.

    I have also seen no proposed middle ground that did not establish some kind of review over what reporters could legally protect and what they had to reveal. Whatever institution that is given such review power becomes a super Press censor sooner or later.

    My conclusion has been that, contrary to the tradition of American culture, in this case no solution is better than any solution. That makes every case be resolved individually on its own merits in the final court of public opinion. It is an inherently unsatisfying “solution” that means any reporter who promises a source immunity does so at risk to his or her own freedom, and the court of last resort is always going to be the public.

    So a reporter and his editor who promises a source immunity better be damned sure they are right and ready to fight for their story, one story at a time. If they are not right, then they will pay a penalty.

    Some things just can’t be solved by rules or laws. That’s the lesson here.

  20. Jkat says:

    let’s also place into the equation that anthrax is a naturally occuring spore present in many places simply by nature .. especially the southwest ..and even moreso south of the border .. so it wouldn’t just be a matter of training the dogs to “sniff out anthrax” .. but to discriminate between varying levels of potency ..

    yes ??

    • behindthefall says:

      Sniffing for anthrax spores sounds to me like a good way for someone, human or dog or whatever, to contract the respiratory disease. I suppose that the fungi responsible for respiratory mycoses give off some volatiles with a typical ‘musty’ smell, but it would not be healthy to hunt for them by inhaling the air beneath the boards in old chicken coops, say. Liquid cultures of bacteria like E. coli, S. faecalis, etc. certainly have distinct and different smells, so I suppose that B. anthracis would, too, and that smell might linger in concentrations of dried, sporulated forms.

      Dunno. I’d consider outfitting any dog I cares about with a HEPA-filter mask before I sent him/her to sniff suspect locations or objects.

      This is hardly a legal consideration, I know. Just thinking.

        • behindthefall says:

          Cleanliness is its own reward …

          BTW, Wiki is my friend, too. Bacterial spores contain dipicolinic acid, which can be released from them by heating and then detected (fluorescence, in the Anthrax Detection Device), so there is a semi-volatile compound characteristic of spores. Never knew that …

          I also note that a HEPA filter will block the spores, according to the ‘Anthrax’ article on Wiki, and is recommended.

          From my own experience and from the Physician’s Desk Reference, I would point out that prepping your anthrax-sniffing dog with Cipro is a bad idea, because Cipro has a side effect in certain individuals of destroying the Achilles’ tendon, or at least that portion of it about halfway along its length where the collagen and the elastin join up. Last year I was crippled for a few months after taking Cipro, and the PDR notes the side effect in dogs given the drug. It is particularly ill-advised, I would think, to give Cipro to troops who have to march and carry heavy packs; I have wondered how many troops have been lamed by Cipro, whether the reality of the effect is acknowledged, and why we haven’t (or I haven’t, at least) heard anything about it. (Then, considering how troop deaths and casualties are hushed up, maybe there’s little to wonder at there.)

          • PetePierce says:

            I should have added that as to anthrax, troops are given a vaccine and their has been litigation over the side effects of the vaccine with a recent court ruling that I saw the other day that indemnified the armed forces from forcing the innoculation in troops.

            The case is on appeal in the D.C. Circuit.

            Anthrax Ruling to Be Appealed

            I received the anthrax vaccine as part of a study in 2002 or 2003 and didn’t have any side effects to it, but I didn’t have access to the final results because they were proprietary. NIH and several companies have been trying to study how much dilution could still have efficacy. Some selected docs and nurses in my state were offered the vaccine as part of some kind of preparedness program, but most of them refused because they were scared of side effects and I believe foolishly so. I’m glad I’ve had it. Shrub got it. I wonder why shrub has gotten it and almost all of the population in the US hasn’t.

            • Jkat says:

              thank you pete for that elucidation .. i’ve never taken cipro .. but i have been over rx’ed antibiotics during a course of treatment for a chronic inner-ear infection years back .. it took me about three years to get my “natural resistance” back.. meantime i caught every little bug that came down the pike …

              i seriously dowbt there are any antrax sniffing dogs .. i’m discounting that passage heavily ..

              • PetePierce says:

                This dog material came up because as EW pointed out in one of the other two posts I linked, FBI said that they took dogs to different sites where Hatfill had been–his place, a Denny’s, his girlfriends and they alerted.

                But as Bmaz pointed out, that so-called “evidence” leaves a lot to be desired, and at the very least they should have videoed them, but on its face I would discount that kind of evidence. I can’t stop the courts/gov from trying to use it, but I’d attack its use.

      • Jkat says:

        well btf .. having actually gotten curious enough to google “anthrax sniffin’ dogs” .. all i got was 81,000 plus hits on “explosives sniffin” dogs” .. ergo sum .. i’m taking all the input from the doggies and puttin’ in that other ^^ posters catbox .. to be thrown out ..

        on due consideration ..i don’t thinks it’s applicable as evidence ..

        an will someone please sic the ASPCA on these apparent cretins who are subjectin’ these poor pooches to the dangers inherent in smellin’ out anthrax spores …

      • PetePierce says:

        Jkat @36/behind the fall @37,@39

        I’m sorry for your side effect with the drug, but that side effect is so rare it is automatically literature case reportable. The reality of the side effect is acknowledged, and it’s very rare as the lit reports. If you hit the PDR for any drug, you’ll find most have rare side effects as well as common ones. No one is hiding it, but it’s just not common. I don’t know if GIs are profolaxed often with Cipro, or what the studies have been as to the downside of that, but the most common downside whether they march or not is drug resistance far and away. The efficacy of Cipro or any other flouroquinolone to prevent inhalation anthrax isn’t proven and I wouldn’t want to test it.

        prepping your anthrax-sniffing dog with Cipro is a bad idea, because Cipro has a side effect in certain individuals of destroying the Achilles’ tendon.

        Anthrax spores are extremely dangerous, and I would never want to be anywhere near them, or my dogs, even if I had a Cipro factory in my back yard.

        Achilles tendinitis/rupture and other tendinitis from quinolones is a side-effect that is extremely rare. There have been about 30 of those cases reported in the lit. since the first article appeared from New Zealand in 1972. These patients tend to be elderly, although not all are, and often on concomittant steroids, and the use is more long term–and they have slightly decreased renal clearance at a baseline. Almost all docs who use flouroquinolones throughout their career will never see this.

        Every antibiotic has the potential for rare, out of the mainstream side effects and Cipro has others but we’re talking few people out of several hundred thousand.

        Quninolone side effect profiles are fairly comparable to many other antibiotics. Gastrointestinal effects (e.g., nausea, diarrhea) and central nervous system (CNS) effects (e.g., headache, dizziness) are most common.

        The major problem with them and all antibiotics is overuse by physicians for prophylaxis or situations in which they aren’t even needed, or are inappropriate choices. That’s why we have so many drug resistant bugs. When WWII got penicillin into the mainstream market, shortly after 1945, it could treat staph. It did not take long before staph became resistant to Pen. We have somewhat more rapid resistance from them compared to many other antibiotics, but they are still widely used and very useful.

        Prepping a dog or a person with oral or IV Cipro or any other quinilone in hopes of preventing pulmonary anthrax is as safe as loading a gun with 4-6 hollow points in a chamber and firing all of them into your mouth.

        I have no idea how people who use dogs to detect dangerous substances protect against the “canary in a coal mine phenomenon”. I do know that it’s more effective to train dogs to sniff out hazards in airports like explosives, than it is reliable to try to elevate alerting evidence in a court. Bmaz expressed it very well.

        What the CDC and most ID experts who research and deal with anthrax learned from this is that it does not take x amount of spores to cause fatal anthrax as they used to think. Julie Gerberding who runs the CDC and many physicians who have left say has runs it into the ground foolishly turned over the anthrax samples to the fourth floor of DOJ and delayed Dx and Rx in the postal employees who died or lived and suffered irreversible pulmonary sequelae.

        It was interesting that right after the anthrax episodes, that local phramacies in large cities and small sold out all their Cipro and other quninolones, and for a while they couldn’t get supplies. All the pharmacists I talked with said that about 85% of their sales had been to physicians. Antibiotics are way overRX’d and very inappropriately Rx’d much of the time, and the quinolone group of drugs that Cipro belongs to are terribly over Rx’d particularly by surgeons. Resistance to all of them is a known quantity and can occur rapidly with prolonged use.

  21. mikenportc says:

    behindthefall, good to know . Thanks . One more bit of potential malfeasance to investigate .

  22. Mary says:

    32 – EW, taking your second point first, what makes you say that “I understand you like to think solely through hindsight” or gives you that understanding? I was typing on the fly, but I think I spelled out that I was looking at something in hindsight, but what I was looking at in hindsight is a point I made contemporaneously when I did argue FOR Fitzgerald’s approach, but with the caveat. I said AT THE TIME that if he was going for IIPA, then he was in one position, but I also said at the time that it was a dangerous thing to jail journalists and especially so to jail them for something that was about what their source did or didn’t tell them that ended up being something they didn’t write about anyway.

    So I’m not sure how this became a “you like to think solely through hindsight” on Plame, but I’d be interested in why you think that. I also said AT THE TIME that having the investigation in-housed was a horrible idea, no matter how good or honorable the investigator and I said AT THE TIME that the scope parameters were too narrow and that the manner of the appointment was not, as everyone else was saying, so plenary as to let Fitzgerald do or pursue anything he wanted.

    But here is what I will also say about the Miller situation. The IIPA claim, vis a vis Libby (as opposed to Rove), was always light and primarily what I meant by the on the fly reference was if I had known that he was never going to stairstep to Rove – which is where the claim was more valid – and I did say that was hindsight and you can’t make decisions on hindsight. I also think that without the aggressive action re: Miller Fitzgerald would have never gotten to what I think was his biggest accomplishment in the whole case (and what is much more than a he said- she said scenario) – because of the pressure regarding Libby and Miller he worked in the revelations of the President’s NIE “leaks” that (and again, I’ve always said this, not just in hindsight) were not ‘insta-declassifications’ but were instead using classified information to plant covert domestic propaganda in violation of the National Security Act.

    So although it was outside his scope of authority because of the in-housing and limited delegation, Miller’s testimony was in the end actually important to the revelation of another crime, at the highest level, and one that he couldn’t do anything about other than reveal its existence. For me, that’s always been – and I’ve always said it was – a staggering accomplishment.

    You mention that we now “know” that Cheney ordered Libby to out Plame, and I think you can hypothesize that and make a case for it, but I don’t think you can make the bald statement that we “know” that to be the case, because there was never any evidence put on to that effect or findings on that. OTOH, the evidence of the Presidential direction to leak the NIE is something that Fitzgerald put in the record specifically in his motion and it has remained undisputed.

    So I’m not saying that Fitzgerald was doing anything horrible, but I am saying that you do have to look down the road (as a matter of fact, one thing I very much agreed with him on was his caution in his investigation and later on the use of the Espionage act for retributive purposes in the Plame case, much as it would have been nice to nail the bad players there, and it bothers me to see so many of the considerations he mentioned lose out in the AIPAC case.

    I know people get very touchy about any kind of criticism of anything Fitzgerald does or did and I think it’s great to have heroes, but I don’t have many and even the ones I have don’t always weigh competing concerns (and the world is about competing concerns and shades of gray more often than it is about black and white) the same way I would. As grand a job as I think Fitzgerald did with what he had, I was always critical of the way he was appointed, always critical of how Comey pushed through the in-house special prosecutor approach and his politicking of the Dems in Congress who were wanting to do something much more aggressive and independent. I made a lot of contrarian observations during the process, not just out of my love of hindsight

    So, to leave behind the thing that I do see as the main accomplishment (leaving it behind because it was an ancillary revelation not within the scope of his authority to investigate and Congress never did anything with it) and which I don’t regret and will always appreciate, to get to the first part of your question, I don’t really agree that Abrams was pushing unprovoked into new and unchartered territory.

    Every First Amendment argument anyone has ever made has, in essence, chartered new waters. Everytime somone stands up for protections of peoples or the press’s free speech rights, there is new ground laid. Personally, I don’t think journalists should have to out sources except in very precarious situations (and let’s face it – this does not mean, generally, that there is no recourse for someone injured because the can go after the journalists directly – the journalist doesn’t lose liability by protecting their source, if anything, they shoulder more liability in most situations when they protect their source because they are responsible for what they write).

    Once Fitzgerald indicated that he was willing to take a statement(s) from Libby, then (as devil’s advocate for the propositions) start jailing journalists until they fessed up to some deviation in detail from someone who was a source, I don’t really see that there were many choices from the paper’s standpoint on how they were going to handle the journalist. I did, at the time, argue that if Fitzgerald really was going after a IIPA case, there was a vastly different setting (even if he ended up having to drop that IIPA case later) and I do believe that. It’s just that there is very little about Plame’s facts (as presented in court and pleadings) or prosecution that indicates there was ever much interest in IIPA, with Armitage not getting much of a second look and Rove dying on the vine.

    Maybe Fitzgerald did have some good faith pursuit of IIPA charges and if so, those certainly put things on a different legal justification. But without being able to see the redactions and classified info, the surface of the Miller case lends itself very easily to being used for precedent where the only use is to take a person and build a person based prosecution, not a crimes based prosecution. I still believe that is a scarey precedent, although it was an almost inevitable one once the decisions were made to go after the press. The fact that some people less forthright and reliable than Fitzgerald will be able to bootstrap much less attractive uses onto his precedent is the scarey part – not that someone going after an IIPA violation in good faith fell short.

    There is NO source for really bad, criminal government wrongdoing who is not going to lie to the FBI about whether or not they gave the information about govt crimes to a reporter. And now the precedent is that a reporter can go to jail, not based on what they printed even, and even if what they were told was not – in the revelation to them – even a crime (Fitzgerald never pled that Libby’s conversations with her about Plame were a crime) but solely to conjure up a discrepancy in the statements given to support an obstruction crime.

    That really smacks of paving the way to allowing investigations of the person and not of the crime (let’s take your statement and then go and see if, by putting them in jail, we can get anyone to dispute anything you said to justify an obstruction claim). I know, Fitzgerald is the “good guy hero” who would never actually do that, because he is above and beyond ever giving in to an adverse impulse, but when you make the rules you make them for everyone. Including Biscupic, Garcia, Gonzales, etc.

    Part of why I was assuaged at the time was that, IIRC, there were reports of an off the record conversation with Fitzgerald and perhaps someone like Abbe Lowell (??? I can’t really remember or trust my memory on this) where they were discussing the future use problems with Fitzgerald and he (again, IIRC) reassured them with something like a representation that he had an iron clad case. In any event, as with Fitzgerald’s decision not to pursue Espionage Act violations (DOJ found a better, sexier facts case for making RECEIPT of classified information a crime now), a prosecutor (and Judge) should make decisions knowing how the precedent will be used. Like the precedents set, for example, by Comey’s use of a state secrets affidavit in Maher Arar’s case.

    Again, it wasn’t scarey that Fitzgerald may have tried for IIPA and fallen short, but it is scarey IMO that the attempt left a case like Miller’s behind as precedent, where the unredacted pleadings and evidence mostly indicate pursuit of a false statements crime. Because that will ALWAYS be at issue in any whistleblower case and also in almost any case where gov picks a person to target and then decides to see if they throw lots of things, if there will be anything left to stick.

    And those things happen. Maybe not on St. Patrick’s day, but they do happen.

  23. Mary says:

    35 –

    I once supported shield laws, but Judith Miller and Dick Cheney clearly demonstrated how such laws could be used to get classified info that supports the government position out into the media while preventing any reasonable evaluation of that info.

    I think you misunderstand what is going on. There was no shield law that protected Miller, so there is no argument that shield laws had anything to do with classified info that supports the government position getting out into the media. And here’s the thing about leaks supporting the government position – – with the thoroughly corrupt DOJ that we have, only reporters who are willing to be stenographers for the Executive Branch are protected. Reporters who are NOT willing to be Executive Branch stenographers, and their sources for illegal activities of the Executive Branch, are the only ones at risk from the lack of a shield law vis a vis criminal protection for themselves and their sources.

    The downside, and there are always downsides – pro and con columns – is that a private individual injured by libelous statements may be limited to seeking recovery against the reporter and their paper, vs. the underlying source. That, in and of itself, is a strong incentive for reporters and papers to try to get things right on the individual front – like Hatfill’s situation.

    Another downside is the situation you point out (where there is no direct claim of something like libel by a private party, but rather a series of misrepresentations to the nation) of the media publishing info where there is no reasonable way to evaluate that info. But keep in mind, that will be the case shield law or no on things like the WMD stories. There is no person who has standing to sue the NYT to try to find out the basis for their biolabs stories or the basis for their anonymous source stories of WMDs.

    The only entity that could pursue those kinds of investigations would be a DOJ investigation of the leak of classified information, and if that information is leaked for the benefit of the Executive Branch, DOJ has shown that it won’t be investigating those leaks. If the leak, like on blacksite prisons and torture, is one that hurts the Executive Branch, not only will DOJ take action to track down and prosecute and punish the leakers, but they have shown that they will also specifically work to make misrepresentations and fibbing press confs to the public, fib to the courts, and expediate the destruction of evidence.

    So the absence of a shield law (not that I like or advocate the one that is pending, bc it is too flawed) doesn’t hurt the government stenographers who helped create 1.5+ million Iraqi refugees, thousands and thousands of Iraqi and US dead and wounded, and thousands tortured and living in concentrated population camps with no recourse. They are fine and protected by the corrupt DOJ and will continue to be. The absence of a shield law does put Dana Priest at risk. And now, with the AIPAC case rulings on the Espionage act, the combined Miller precedent and AIPAC precedent open the door to her being subject to a criminal violation of the Espionage Act for merely being TOLD about Executive Branch classified crimes, even ones she never writes about.

  24. Mary says:

    skdadl – “In my amateur view, there is a pretty clear distinction between serious independent research and laundering propaganda for a government, and I think that most citizens can and would grasp that distinction, and support it” I agree with that observation and actually, we do also have laws here in the US that, if there were not corruption throughout DOJ and if Congress were not so pathetic, adresses those difference. Under our National Security Act it is a crime to covertly plant domestic propaganda. Period. Even when the President does it as an “insta-SECRET-declassification” If the law worked, Bush would be facing charges. But the law doesn’t work any better than the DOJ works. So he isn’t and no one who leaks and plants FOR THE BENEFIT OF THE EXECUTIVE BRANCH will be. DOJ protects the Executive Branch crimes with a fervor.

    This gets to:
    31 –

    the ONLY thing a shield law will protect is leakers. doncha know that serial leakers like rove and cheney and the like would be delighted to have their sinister workings protected!!?!?!?

    How so? There is no shield law now and I haven’t noticed the serial leakers – Cheney and Rove (if they are, and IMO they likely are) – bearing any consequences. It isn’t a shield law that has protected them, it is the DOJ and President. Your own example makes it pretty clear that pro-Executive Branch leakers aren’t the ones who need a shield law. They are in good shape already.

    now, granted, there are good leakers and bad leakers, just as there are good witches and bad witches. but the shield law is NOT the way to go on this one. the protections for whistleblowers who leak should remain in place and strengthened. THAT should take care of that end of the issue; no real need to exploit the reporter’s role in this sort of situation.

    What’s your definition of good withc – good whistleblowing leaker v. bad whistleblowing leaker? Who makes that decision? DOJ? And the protections for whistleblowers never involve protections for leaking “national security” classified information (like the surveillance program, black sites, torture, etc.) and I can’t imagine any Congress that would even try to come up with laws to protect the leaking of classified information based on a DOJ determination of whethe or not it was a “good leak” or a “bad leak” Whistleblower protections are primarily for making reports to internal policing entities, like an IG’s office, and sometimes for going to the press with misfeasance information (HUD contractors have poker nights with strippers for HUD employees to decide who will get contracts – I made that up, but as an example) that may end up in the press via exhaustion of internal remedies with no response.

    I’m not sure I want to see “whistleblower” protections for leaking truly national security information, but if you have every whistleblower decide, in their conscience, what info is “truly” national security or not, of if national security should nonetheless be overriden for other interests, you have a big problem; if you have DOJ decide, you have an equally big problem.

    So should Libby be able to say, for example, that when he outed Plame he was only being a “whistleblower” on CIA nepotism? So it’s ok to override national security concerns and the IIPA to blow that dogwhistle?

    i would have no problem whatsoever holding to a professional rule that i would not reveal any sources UNLESS i received evidence that the source was lying or using my position to advance an abuse of power.

    Who decides that abuse of power? If you are a neocon journalist and think Congerss is abusing its power if it impeaches the president or exercises oversight – is that the definition? Or if you are a pro-Palestinian journalist and think US support of Israel is an abuse of power so that it is justified to reveal troop positions or weapon information or CIA agent identities to prevent that abuse, is that the definition? Is it an “abuse” if they leak you a true but unflattering story about someone, solely for political purposes?

    And why do you think that, without a shield law, you would have a leg to stand on in the “I would not reveal a source UNLESS” part of not revealing? So are you saying that it would be ok to put you in jail, indefinitely, for years, with no charges other not revealing who your source is and what they told you, for something where you decided they were not lying and not trying to abuse power, but someone else wants the info (civil or criminal case)? If not, why not and how does anyone ever do anything about it?

    the purpose of a free press is to EXPOSE ABUSES OF POWER.

    instead of a shield law, we need laws that provide for showing reporters who resist revealing a source who might have engaged in criminal activity – under cover of the court with appropriate agreements and protections of that reporter AND the information in place – such evidence that might expose the source is lying or abusing power.

    Again, the heart of the First Amendment is that people are going to have different opinions. I’m not sure what you mean by abusing power, but I think you mean to say that someone like Cheney is by definition abusing power by covertly leaking. But the same argument could be made by the DOJ with respect to anyone who has been entrusted with classified information and then leaks that information. If they leak – they are commiting a crime and someone can reasonably argue that they are abusing power by not following channels for that information to be released. And what about information that might not have been a crime to reveal (as Fitzgerald seemed to think Libby’s revelation to Miller was not a crime until he lied to the FBI about it). And what is the legal basis of taking a reporter to a judge and saying they should be forced to reveal information about their source to see if their source is “abusing power” and what is meant to be the remedy?

    Part of the First Amendment, just as important as the part about exposing abuses of power, is the part that protects people’s different opinions as to what constitutes an abuse of power. Certainly, the neocons believe that the NYT abused its power by printing the wiretaps info, while others may think the NYT abused its power by sitting on the story. So a judge is supposed to determine which definition is correct and somehow fashion a punishment (or lack) for the reporters and their sources based on the court’s reaction to whether or not it was more abusive for the NYT to report or not report? And that judge would be — someone like Fuller? Like Bybee? Like Kavanaugh?

    I’m not saying there is a perfect solution and I definitely believe in protecting whistleblowers much more than they are so far, but I think that but for a few very specific carveouts like IIPA, journalists need to be free to print and to use anonymous sources for what they print. People should question and discount, based on circumstances, the anonymous attributions and reporters who libel and slander should bear the consequence and their source should live under the cloud of whether or not the journalist will be willing to pay for the consequences of their source’s lies – because they can and will in a private setting.

    In the public setting, misdirection about WMDs and the like will, after the precedent of the Bush DOJ, always be something that only gives rise to politically based prosecution to attack the administration’s critics using the full force of the DOJ to accomplish that end. So by taking away any shield protections, you very simply foster the use of the DOJ as a political tool. Once the decision was made within DOJ, institutionally, to become a political tool, then the precedents to support using the absence of a shield law to go after administration critics has been laid pretty carefully.

    I won’t suffer any more or less through the absence of protection for someone like Jane Mayer, but the nation will IMO. YMMV, it’s not cut and dried, black and white. And if DOJ wasn’t an agent of torture and criminal cover up, I might take a different view.

    • skdadl says:

      Thank you, Mary. One last thing, though:

      actually, we do also have laws here in the US that, if there were not corruption throughout DOJ and if Congress were not so pathetic, adresses those difference. Under our National Security Act it is a crime to covertly plant domestic propaganda. Period. Even when the President does it as an “insta-SECRET-declassification” If the law worked, Bush would be facing charges. But the law doesn’t work any better than the DOJ works. So he isn’t and no one who leaks and plants FOR THE BENEFIT OF THE EXECUTIVE BRANCH will be. DOJ protects the Executive Branch crimes with a fervor.

      I still don’t see how the offence could have been demonstrated in the case we’ve been talking about without compelling Miller’s testimony. (And now I’m trying to remember how Fitzgerald knew to look there.)

  25. bmaz says:

    To quote the one good line that pint sized cult cluck Tom Cruise has ever uttered, from the movie Risky Business:

    Mary, sometimes you just got to say what the fuck!

    I have mixed and conflicting feelings about what you have said in relation to Plame; in some ways I agree, in some I don’t. Bottom line, in a decent justice system you have to have a baseline trust in the intentions of the prosecutor and the exercise of the powers and discretion of office. That the Department of Justice no longer has that baseline trust is now a feature and a fact, thanks to Cheney, Bush, Rove, Ashcroft, Gonzales and now Mukasey; not to mention the supporting torturing cast of god knows how many.

    However, from everything I know, I have no problem whatsoever in giving Fitzgerald and his SC office this baseline trust and benefit of the doubt. For better or worse; to the parts you don’t like as well as to the parts you do. No, not everything was perfect (contrary to the strange belief of far to many, but Marcy is not one of the so blinded in my opinion), but on the whole he appeared to run his investigation properly, discreetly and with dignity, and with proper intentions. I have seen nothing to countermand that thought; and until we do, I think we have to accept the results for better or worse. As you know, i am pretty touchy about making bad law, when you do both trial and appellate work, you really get an idea how critical actions in one place are to what occurs in another. I have even had the pleasure of being crucified several years later with an appellate decision that I briefed, argued and won years before. (Irony sucks sometimes). If you trust Fitzgerald’s motives, and I do, you have to believe that what he was after was worth the potential bad precedent. I think he was after Cheney, and if he had gotten him, we wouldn’t be having this discussion. But we also have to live with it even though he didn’t. sometimes you eat the bear; sometimes the bear eats you; just the unfortunate way it is.

    Now I will say one thing, and that is that this discussion is exactly why I think, and have repeatedly stated, that there is an easy case to be made that Fitzgerald should have gone ahead and also charged Rove, at a minimum, and maybe charged them with IIPA violations to boot. I felt this before the Libby jury rendered it’s verdict, and their statements only confirmed it to me. Were other cases as totally solid as what he tried Libby on; no, but they were good enough to fly with if he wanted to. I respect his decision not to do so; I also would have respected his decision win, lose or draw if he had.

    • BayStateLibrul says:

      I would like, and the American folks deserve a reason why.
      I think Fitzy should explain why…

      Fitzy, why didn’t you indict Rove?
      Fitzy, why didn’t you charge staffers with IIPA violations?

      Once we hear the answers, we can move on…
      We need a final reprt, too. I know, I know, the law says none will
      be granted (bad fucking law)…

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