Miscellaneous Anthrax Articles - Part 14
The Kansas City Star
Posted on Sat, Nov. 24, 2007 01:12 AM

U.S. remains vulnerable to anthrax attack, experts say
Capital News Service

WASHINGTON | The United States is still “very poorly prepared” for an anthrax attack six years after a 2001 assault against Congress and television broadcasters, a former CIA director says.

“There is very little attention being paid to biological weapons,” former director James Woolsey said this week. “And that’s a shame.”

Woolsey spoke at a news conference called to release a report from ExecutiveAction, a Washington-based consultant, analyzing three anthrax attack scenarios, including a hypothetical attack at the Academy Awards.

Neil Livingston, ExecutiveAction chief executive officer, said the report was meant to be an “educational document” for the public and to show the risks that America faces.

“Terrorists could recruit a scientist at a laboratory who had access to a lethal strain of anthrax,” Livingston said. “Alternatively, they could break into a laboratory, bribe a scientist or threaten a scientist to obtain a sample.”

Livingston said that once obtained, anthrax “can be smuggled into just about any building in the United States.”

“Someone could just open up a sugar packet (filled with anthrax), spread it on a table and then leave the room,” he said.

Livingston pointed to the mystery that still surrounds the 2001 attack that struck in Florida, Connecticut, New York and metropolitan Washington as evidence that anthrax is on the back burner.

Five people died in the attacks.

“The most alarming thing is that we have not solved the 2001 anthrax attacks,” Livingston said.

Though the amount of anthrax used in the attacks was small, it was still enough to shut down the Hart Senate Office Building for five months and require millions of dollars in decontamination costs.

If terrorists were to step up the amounts of anthrax or “get creative” in another attack, the results could be devastating beyond the loss of life, said David Wright, president of the Annapolis-based biodefense company PharmAthene.

“A one-gallon Ziploc bag of anthrax is enough to destroy the U.S. economy,” Wright said. “I don’t want to scare people, but this is scary.”

The report also called for increased stockpiles of antibiotics, therapeutics (which provide protection after antibiotics lose their effectiveness) and a modern vaccine.

The anthrax vaccine is available only to the military, and is a six-shot sequence, Livingston said.

Wright said the federal government needs to step up its funding through Project Bioshield, created in 2004 to provide medical countermeasures in case of a biological attack.

The Badger Herald
Barrett continues conspiracy theory

by Lauren Cohen
Friday, November 30, 2007

At Madison Public Library Thursday, a former University of Wisconsin lecturer said America’s future is in jeopardy without 9/11 Truth, an organization that believes the Sept. 11, 2001 attacks were part of a conspiracy by the U.S. government.

Kevin Barrett, who gained nationwide attention for his controversial views about Sept. 11 when he was teaching an introductory Islam class at UW last fall, explained how searching for answers behind the Sept. 11 attacks, “a pseudo-religious act of human sacrifice,” affect Americans’ cultural, spiritual and physical survival.

“We are on the brink of a chemical war; you should care because your life depends on it,” Barrett, the founder of Alliance for 9/11 Truth, said.

He also said Americans’ survival was threatened by anthrax threats and said official sources have confirmed anthrax threats came from Fort Detrick, Md.

“Bush didn’t want an investigation after 9/11, and we can see why the administration didn’t want to talk about why is anthrax coming from within the U.S.,” Barrett said.

According to Barrett, not providing answers and a “lie of this magnitude” kills the human spirit.

“Their spiritual life has diminished since 9/11 because there is more fear in the air and people are afraid to really live and open up to the world, they go around looking like zombies,” Barrett said.

Barrett said he believes it is “absolutely reasonable” to believe the World Trade Center buildings were destroyed by controlled demolition and now there are CIA experts including Ray McGovern and Bill Christensen and colonels and generals coming forward.

“This monstrous lie will be far more pernicious, spiritually and every other way, than the actual murders,” Barrett said. “The lie is infinitely more harmful.”

Barrett said America’s current leaders are completely out of control.

“The war in Iraq has taken over a million lives so far,” Barrett said. “There have been executive orders where Bush can declare a state of emergency without getting approval from Congress. We are on the way to becoming a dictatorship.”

In terms of the future, Barrett said 9/11 Truth has the potential to change public opinion and finding out what happened “might unite us.”

UW College Democrats Chair Oliver Kiefer said while Barrett is free to express his speech, it is not an opinion he agrees with. Kiefer said he believes in a more “mainstream” view that the Bush administration has failed the country.

“The Bush administration didn’t adopt recommendations of the 9/11 Commission, nor take safety precautions, and have left us vulnerable,” Kiefer said. “For example, nothing was done with our ports until Democrats took over in Congress, and that’s just inexcusable.”

Madison resident Lou Stolzenberg said she doesn’t accept new information quickly. However, once she looked at information from scientists and engineers about the World Trade Center’s collapse, she agreed with the conspiracy theory.

“[These are] qualified, educated and reputable people — who don’t just accept any information, but have high standards for verifying information,” Soltzenberg said. “I believed the theory.”

New anthrax vaccine doomed by lobbying

America's sole supplier faced oblivion if its rival's product was adopted. It was time to call on political connections.

By David Willman, Los Angeles Times Staff Writer
December 2, 2007

WASHINGTON -- Shortly after the Sept. 11, 2001, terrorist attacks and the subsequent anthrax mailings, top U.S. science advisors said the country "urgently needed" a new, improved anthrax vaccine.

The existing vaccine often caused swollen arms and muscle and joint pain. Inoculation required six injections over 18 months, followed by yearly booster shots. The estimated shelf life was just three years.

The scientists' report, issued by the Institute of Medicine, called for "an anthrax vaccine free of these drawbacks" -- a vaccine that would require only two or three injections, achieve protection within 30 days, stay potent for a long time and cause fewer adverse reactions.

Yet nearly six years later, the old vaccine is still the only one available -- and the government is buying it in mass quantities for the Strategic National Stockpile.

The manufacturer, Emergent BioSolutions Inc. of Rockville, Md., prevailed in a bitter struggle with a rival company that was preparing what federal health officials expected to be a superior vaccine. The episode illustrates the clout wielded by well-connected lobbyists over billions in spending for the Bush administration's anti-terrorism program.

Emergent's rival, VaxGen Inc. of South San Francisco, had spent four years developing a new anthrax vaccine and had won an $877.5-million federal contract to deliver enough doses for 25 million people. The contract threatened Emergent's very existence. The old vaccine, its only moneymaker, would likely be obsolete if VaxGen succeeded.

Emergent responded by mobilizing more than 50 lobbyists, including former aides to Vice President Dick Cheney, to make the case that relying on the new vaccine was a gamble and that the nation's safety depended on buying more of Emergent's product.

The company and its allies in Congress ridiculed VaxGen and impugned the competence or motives of officials who supported the new vaccine. The lobbying effort damaged VaxGen's credibility with members of Congress and the Bush administration, a Los Angeles Times investigation found.

When VaxGen encountered a stubborn scientific problem and needed more time to deliver its vaccine, the firm found scant support, even among officials who had earlier backed its efforts. The government then imposed tougher testing requirements on the struggling company.

A senior federal scientist who oversaw the project said she sought authority to allow advance payment to VaxGen to help it work through the difficulties. Top administration officials blocked her requests, she said.

Finally, a year ago, officials canceled VaxGen's contract, all but capsizing the company.

Emergent, meanwhile, has won federal contracts worth at least $642 million for the old vaccine and is in line to win many millions more as the government expands the strategic stockpile.

Kimberly B. Root, a spokeswoman for Emergent (formerly BioPort Corp.), said the company's lobbying ultimately served the national interest.

"Had we just thrown up our hands, what position would we be in now?" Root asked. "Where would the government be? There wouldn't be, potentially, a vaccine in the stockpile."

Bill Hall, a spokesman for the U.S. Department of Health and Human Services, said VaxGen's "poor performance" sealed its fate. In canceling the contract, Hall said, officials acted "as effective custodians of government finances."

Yet Dr. Philip K. Russell, a vaccinologist and retired Army general who was a senior biodefense official in the Bush administration, described the outcome as "a big, dramatic failure."

"National security took a back seat to politics and the power of lawyers and lobbyists," said Russell, who supported the decision to award VaxGen the contract.

If officials had granted the company a bit more time, Russell said, it would likely have solved its scientific problem and delivered a superior vaccine. He noted that setbacks are common in developing vaccines and said VaxGen appeared capable of overcoming this one.

"It wasn't an insurmountable problem," said Russell, who after leaving the government did not lobby for or advise either of the competing vaccine companies. "It was a solvable problem."

Effort to contain threats

On the Sunday night after Sept. 11, 2001, Health and Human Services Secretary Tommy G. Thompson convened an urgent meeting of health officials and leading scientists.

"Tommy Thompson was really, really concerned that something could happen," recalled Dr. Donald A. "D.A." Henderson, a former World Health Organization physician who led successful efforts to eradicate smallpox. "There was intelligence information coming through and some chatter coming through, suggesting there was going to be a second event, that the second event could very likely be a biologic event.

"And anthrax and smallpox were both raised as possibilities."

The imperative was clear: Find a way to eliminate both threats.

About 10 p.m., as they filed out of HHS headquarters, Henderson and health department lawyer Stewart Simonson acknowledged their fears.

"I told D.A., 'We're going to make this work.' And he said, 'I just hope we're not too late,' " Simonson recalled. "That's how scared we were."

They and other federal officials later scored a victory over one of the two threats: Working closely with vaccine manufacturers, they assembled 200 million doses of smallpox vaccine.

Countering anthrax quickly proved to be more complicated.

In October 2001, six envelopes containing powdered anthrax were sent through the mail on the East Coast, killing five people and sickening about 20 others. Authorities closed contaminated buildings in Washington and Florida, and treated hundreds of congressional employees with antibiotics. No one has been charged in the attacks.

The anthrax mailings showed that the most reliable way to prevent death is with an antibiotic such as Cipro or doxycycline, administered quickly and for up to 60 days. Inhaled anthrax otherwise can kill up to 90% of those infected. The Strategic National Stockpile now holds enough such antibiotics to treat more than 40 million people.

Dr. Anthony S. Fauci, who directs the National Institute of Allergy and Infectious Diseases and has advised President Bush and Congress on U.S. preparedness, said: "We already know that we prevented a serious problem on the Hill by essentially blanket-treating people with [Cipro]. We know that because when we went back and did surveys, we found that many people who had absolutely no symptoms were actually exposed."

The success in limiting deaths from the 2001 mailings brought into focus the lack of expert consensus about the magnitude of the anthrax threat. Some scientists have said that terrorists could disperse anthrax over a wide area, inflicting casualties on the scale of a nuclear weapon.

Skeptics, however, note that although anthrax is relatively easy to obtain and can linger tenaciously on surfaces, it is not contagious and is difficult to deliver lethally outdoors.

Another attack, Fauci said, "would create massive panic in this country. It would create economic and other real, logistical problems. But at the end of the day, you're not going to kill as many people as you would if you blasted off a couple of car bombs in Times Square."

Nevertheless, fear of a panic-inducing anthrax event generated momentum for amassing millions of doses of vaccine as a backstop to the antibiotics that would be the first line of defense.

Bush underscored the threat as he rallied support for the Iraq war. In an October 2002 speech in Cincinnati, the president told a crowd that Saddam Hussein's regime had supplies of anthrax and other biological weapons "capable of killing millions." Such weapons could be easily deployed, Bush added: "All that might be required are a small container and one terrorist or Iraqi intelligence operative to deliver it."

The U.S. already had a military stockpile of anthrax vaccine, filled with Emergent's product. Now, support grew for creating a civilian cache, to allow mass inoculations immediately after an attack.

The idea was that a new vaccine -- faster-working, with fewer doses and fewer side effects -- would protect people who couldn't tolerate antibiotics and would work against anthrax that withstood antibiotic treatment. A vaccine might also help protect people reentering a building that had been contaminated.

In February 2002, the Institute of Medicine released its report, calling the old vaccine "reasonably safe" but "far from optimal" and concluding: "A new vaccine, developed according to more modern principles of vaccinology, is urgently needed."

Officials meeting privately in late 2003 -- including Russell, Simonson, representatives of the vice president's office, the Centers for Disease Control and Prevention, the Department of Homeland Security and Fauci's staff -- decided to push for the purchase of 75 million doses of a new, genetically engineered vaccine.

Dr. Kenneth W. Bernard, then a biodefense advisor to Bush, estimated that such a stockpile -- providing three doses for 25 million Americans -- would be enough to respond to simultaneous attacks on New York, Los Angeles and Washington.

Henderson and Russell said the requirement for 75 million doses was based as well on a desire to keep a manufacturer operating continuously, so it could quickly ramp up production in a crisis.

The problem now, both said in recent interviews, is that the nation has not gotten a newer, better vaccine.

Project BioShield contract

In July 2004, President Bush signed legislation called Project BioShield, providing $5.6 billion for "next generation" vaccines and drugs to counter threats of biological terrorism.

VaxGen had been working for two years on its anthrax vaccine, building on earlier efforts by the Army. VaxGen's early work had impressed Fauci's staff, which oversaw $100 million in federal research grants to the company.

Now VaxGen wanted to win the first BioShield contract. The company had been formed in 1995 by scientists from Genentech Inc., which retained an ownership stake. Lance K. Gordon, inventor of the first vaccine for infant meningitis, became VaxGen's chief executive in 2001.

But by 2003, the company's survival was in doubt. It had seen an experimental AIDS vaccine fail in late-stage testing. And in August 2004, the Nasdaq stock exchange delisted VaxGen for failing to file timely financial results; the company's stock price sank 35%.

VaxGen sought the BioShield contract by proposing to genetically engineer an anthrax vaccine with greater purity, more consistent potency and fewer unwanted side effects than Emergent's old vaccine.

But inside the company's salmon-colored walls facing San Francisco Bay, technicians were seeing disquieting data: Blood samples drawn from study patients showed that the vaccine failed to trigger enough anthrax-fighting antibodies.

VaxGen hired more vaccine experts, including a new chief scientific officer.

The complication did not deter federal health officials. On Nov. 4, 2004, HHS Secretary Thompson announced that VaxGen had been awarded the BioShield contract, worth $877.5 million. The money would start to flow when the company made its first delivery of vaccine, expected in two years.

"Acquiring a stockpile of this new anthrax vaccine is a key step toward protecting the American public against another anthrax attack," Thompson said.

The announcement was bad news for Emergent, whose vaccine remained the only revenue generator for its BioPort subsidiary.

"We were worried about it," recalled retired Navy Adm. William J. Crowe Jr., a former chairman of the Joint Chiefs of Staff who served on the company's board from 1998 through late 2005. (Crowe was interviewed at a hospital in Virginia in late August, two months before his death at age 82.)

BioPort was founded in 1998 by Ibrahim El-Hibri, a Lebanese financier. Along with Fuad, his U.S.-educated son, El-Hibri formed BioPort by purchasing vaccine-making facilities of the state of Michigan for $24.75 million. The company's only product was the anthrax vaccine, called BioThrax, which it sold chiefly to the U.S. military. In mid-2004, the company reorganized as Emergent BioSolutions.

To counter the challenge posed by VaxGen, Emergent invested where it could buy immediate impact: lobbying.

"We had 500 employees who were about to lose their jobs, and we went out and became advocates for them," said Allen Shofe, a company vice president who managed its lobbyists.

In 2005, Emergent's yearly spending for lobbying nearly quadrupled, to $1.41 million. Last year it reached $2.1 million, federal records show. All told, from 2004 through June 2007, the company used 52 lobbyists at a cost of $5.29 million, the records show.

During the same period, VaxGen spent $720,000 on six lobbyists.

Emergent's lobbyists stressed a core message:

* U.S. civilians were at risk of death without an immediately expanded stockpile of anthrax vaccine;

* Emergent stood ready to supply the civilian stockpile, whereas VaxGen had yet to prove it could deliver a new product;

* Emergent might stop making the vaccine if the government chose not to buy its product for the stockpile.

The company enlisted friendly members of Congress and recruited a cadre of former government officials to press its attack. Among them was Jerome M. Hauer, a former acting assistant secretary for emergency preparedness at HHS.

Hauer had been in the thick of decisions to pursue a new anthrax vaccine. While at HHS, he told Emergent in a February 2003 letter that the department had concluded a new vaccine was "a better long-range option than investing in expanding manufacturing capacity" for BioThrax. Hauer wrote that "the scientific basis" for a genetically engineered vaccine was "very sound and will result in an improved product."

But after leaving the Bush administration in late 2003, Hauer did an about-face, delivering Emergent as a client to his new boss, the Fleishman-Hillard public relations and lobbying firm, according to company records and people familiar with the matter.

At a December 2004 biotech-industry conference, Hauer said the government should purchase more of the old vaccine. He also took aim at Simonson, the HHS lawyer, who had succeeded him as assistant secretary. Hauer said that Simonson should be stripped of his authority for his handling of the BioShield contract.

In June 2005, Emergent placed Hauer on its board of directors. In that year and 2006, Emergent paid $360,000 to Fleishman-Hillard, records show.

In an interview, Hauer said he lobbied members of Congress and advised the company how to "educate" the administration. He said he changed his mind about Emergent's vaccine after concluding that he had relied earlier on "biased information" from his then-colleagues at HHS.

In the spring of 2005, VaxGen became more vulnerable to its rival's onslaught. VaxGen scientists determined that the problem with the new vaccine's potency was not the result of a lapse in refrigeration, as they had first speculated. The difficulty lay with the vaccine's formula. An aluminum additive, expected to increase potency, had the opposite effect.

"Our vaccine had a stability problem," said Dr. Marc J. Gurwith, a scientific executive with VaxGen. "The problem was going to take more testing to figure out what went wrong and how to fix it."

VaxGen needed patience and flexibility from its presumed allies in Washington. But Thompson had resigned as HHS secretary, and Emergent's lobbying had changed the atmosphere. Officials who had backed VaxGen's drive to deliver a better vaccine were no longer responsive.

"We had a very productive partnership with the government until we encountered a problem," said Piers Whitehead, VaxGen's vice president for corporate and business development. "Things deteriorated very rapidly."

In April 2005, Dr. Noreen A. Hynes took over the HHS office that oversaw development of new drugs and vaccines under Project BioShield. Hynes, previously a bioterrorism advisor in the White House, said she was concerned about whether any small company could shoulder the costs of developing a new vaccine.

The Project BioShield law allowed advance payments of up to 10% of the value of a contract. But when she sought permission to grant such payments, Hynes said, she was turned down.

"I was told that the administration had decided there would be none," Hynes said in an interview. Asked who made the decision, Hynes said that she did not know but that it flowed from "the highest level."

Hynes, an infectious-disease specialist now at Johns Hopkins University, added: "It was not surprising, frankly, that this new type of vaccine would have been delayed in development. That's just the way vaccine development is. . . . It's one of the reasons why you would want to have the advance-payment authority."

VaxGen officials said they sought advance payment three times in 2005 and 2006: twice in discussions with HHS and once in writing. Hall, the health department spokesman, said any consideration of such payments "became moot" because of VaxGen's lack of progress.

Emergent executives knew well the problems inherent in developing and manufacturing vaccines. The state facilities they acquired in Lansing, Mich., had been beset with problems. In 1999 and 2000, inspectors from the Food and Drug Administration found deficiencies in the company's vaccine, including problems with stability, potency and purity.

The company pledged to rectify the inadequacies -- and the government stuck with it as the sole supplier of anthrax vaccine to the military.

Now, as Emergent sought to neutralize the competitive threat from VaxGen, it added to its lobbying team John V. Hishta, who had deep ties to the Republican congressional leadership.

Hishta was chief of staff to Rep. Thomas M. Davis III (R-Va.) and has continued to serve him as a campaign advisor. Hishta also directed national efforts to elect Republicans to the House from 2000 through 2002.

In July 2005, he arranged for an Emergent executive to appear before the House Government Oversight and Reform Committee, which was chaired by Davis.

In his opening statement, Davis voiced "concern" that federal officials had "made insufficient efforts to stockpile existing countermeasures while new and improved ones are being developed."

The Emergent executive, Robert G. Kramer, told the committee that health officials were undermining national security by contracting for VaxGen's product instead of buying more of Emergent's.

"HHS has staked the nation's protection against the No. 1 biologic threat on an experimental product," Kramer said.

Kramer emphasized that Emergent would reassess whether to keep making the anthrax vaccine. The company, he said, "finds itself at a critical juncture in terms of its ability and willingness to commit resources to a product that lacks a committed customer."

Representatives of VaxGen were not invited to appear.

Asked about his role, Hishta said, "I don't want to comment on my lobbying work."

Davis did not respond to questions submitted through an aide.

Another key lobbyist for Emergent was Todd A. Boulanger, who had served as an aide to Republican members of Congress. Boulanger helped shape a letter by Sen. Charles E. Grassley (R-Iowa) to Thompson's successor as HHS secretary, pressing him to explain why his department had not purchased more anthrax vaccine from Emergent.

The selection of VaxGen, Grassley wrote, was "highly suspect." In his letter, dated Jan. 28, 2005, Grassley told the new secretary, Mike Leavitt, about "a number of troubling allegations" regarding the vaccine contract. Grassley suggested that HHS "acted prematurely" in awarding it to VaxGen. "Some have questioned the effectiveness" of VaxGen's product, he wrote, noting that the old vaccine "has been available for use in this country for several decades."

Nine weeks later, Grassley again wrote to Leavitt: "I remain greatly concerned that the department is not prepared to protect the American people from an anthrax attack."

Grassley also questioned the independence of Russell, the vaccine specialist who backed awarding the BioShield contract to VaxGen. Grassley claimed the former general had been involved in developing the vaccine years earlier with the Army.

Russell, who left the health department in late 2004, said he had no financial stake in the vaccine and no role in developing it.

"How do you confront a whisper campaign?" Russell asked. "The lobbyists have to earn their pay."

Boulanger's role in providing material to Grassley -- including language for the senator's January 2005 letter -- was described by people who said they had direct knowledge of his actions. Asked for comment, Boulanger said, "I'm not going to say anything about my private conversations with his [Grassley's] staff."

Emergent paid Boulanger's firm, Cassidy & Associates, $300,000 from 2004 to 2006.

A spokeswoman for Grassley, Jill Kozeny, said the senator's letters were "based on information from a number of sources."

Grassley's intervention hurt VaxGen on two fronts, company executives said:

Because of his reputation as a fiscal watchdog, his criticism sowed reticence about VaxGen within Congress and the administration. And the prospect of overcoming potent political opposition while trying to solve a tough scientific challenge weakened the resolve of VaxGen's major investors.

Emergent, meanwhile, broadened its connections to the White House by hiring Cesar V. Conda and Ron Christie as lobbyists. Both had been policy aides to Vice President Cheney, who championed Project BioShield.

According to people familiar with the lobbyists' conversations with lawmakers, Conda and Christie raised doubts about Simonson's handling of the vaccine contract, just as Hauer had.

As assistant secretary for emergency preparedness, Simonson could have made the case within the Bush administration for giving VaxGen an advance on its contract. But that prospect was dimmed after the lobbyists' attacks, said Russell.

"Simonson was neutralized," he said.

Simonson, who left the government in mid-2006, declined to comment on Emergent's lobbying effort.

Neither Conda nor Christie responded to messages seeking comment. Emergent paid their firm, DC Navigators, $340,000 from 2006 through June of this year.

One of Emergent's other lobbying firms, McKenna Long & Aldrich, has taken credit for helping write the Project BioShield law. Seven members of the McKenna firm subsequently registered to lobby for Emergent.

From 2005 through June 2007, Emergent paid the firm $380,000.

Government changes rules

VaxGen's contract called for delivery of the first 25 million doses of vaccine by November 2006.

In May of that year, government health officials extended the deadline three years.

But they also erected new hurdles: They required VaxGen to complete, at the company's expense, new testing of the vaccine in animals, plus an additional study in humans. The original contract had allowed VaxGen to defer such studies until after the company began receiving payments.

VaxGen fought without success for better terms, notably partial payment before delivering the vaccine. It objected to the new regulatory requirements. It kept at work on the stability problem.

After reviewing VaxGen's progress, the FDA on Nov. 2, 2006, denied approval to begin the new study in humans, citing concern about whether the vaccine was stable enough.

On Dec. 19, 2006, the health department canceled VaxGen's contract. By this fall, VaxGen had laid off 90% of its workforce, which peaked two years ago at 295 employees, a spokesman said. The company plans to merge with another Bay Area biotech firm.

In an October report, the Government Accountability Office said that health officials and VaxGen had been "unrealistic" in believing the company could deliver its vaccine on schedule. The GAO also said VaxGen was hindered by regulatory requirements that "were not known" to the company when the contract was awarded.

VaxGen's Gurwith said in an interview that based on lab results, he was convinced as of July that the company had figured out how to maintain the vaccine's stability. Chief executive James P. Panek said that if the government had stood by VaxGen, it probably would have delivered a better vaccine "well ahead" of any other manufacturer and at far lower cost.

Emergent, meanwhile, has continued to win contracts to deliver more of the old vaccine to the civilian stockpile. In a recent interview, two senior federal health officials, Gerald W. Parker and Carol D. Linden, said they remained determined to buy enough vaccine to inoculate 25 million Americans.

Henderson, the Bush administration advisor and former World Health Organization official, said he was uncertain how much of the old vaccine should be stockpiled for civilians, considering its shortcomings.

"All of us were quite persuaded that once you got the [new] vaccine, you wouldn't be buying the old stuff," he said.


Times researchers Janet Lundblad in Los Angeles and Sunny Kaplan in Washington contributed to this report.

Finding link to anthrax, professor set NAU apart

Anne Ryman
The Arizona Republic
Dec. 16, 2007 12:00 AM

One of the world's foremost anthrax researchers toils in a cramped, windowless lab at Northern Arizona University.

Inside a locked room only a few can enter, he and his research team study germs so dangerous that the U.S. government considers them top bioterror threats.

It was here that Professor Paul Keim made a significant discovery: the 2001 anthrax letter attack on a Florida photo editor came from a genetic strain identical to one developed in U.S. government labs. The finding led the FBI to rule out foreign terrorist attacks in the jittery days after Sept. 11. The FBI called the anthrax letters the worst biological attacks in U.S. history. 

Keim's anthrax analysis catapulted his career from niche researcher to the equivalent of a scientific rock star and shone a new light on NAU. His grant funding skyrocketed from less than $1 million to about $8 million a year, and his research on more-common diseases expanded.

Soon he will have a new lab to match his world-renowned status.

He and his team of 50 researchers are moving into the top floor of a $25 million three-story, glass-and-brick building billed as one of the most energy-efficient in Arizona. The lab space is more than triple what they have now. The building's most talked-about feature, besides the fact it will house anthrax, is the use of recycled blue jeans to insulate the walls. NAU needed to build the lab because of the increased biodefense research workload and more federal safety and security restrictions since 2001. Keim, 52, has come a long way in six years.

In early 2001, he had 25 researchers for his various projects and was among a handful of U.S. scientists who worked on Bacillus anthracis, the bacterium that lives in soil and causes anthrax disease. The lethal germ is considered a top bioterror threat because even a tiny amount of spores, smaller than the head of a pin, can kill if lodged in the lungs.

Keim was well-known in genomics circles, a scientific field that studies genes and their function. In the late 1990s, he and a colleague, Paul Jackson, pioneered a DNA fingerprinting technique to distinguish among the various anthrax strains. The finding revolutionized anthrax research but stopped short of elevating him to the ranks of famous scientists who transcend their fields.

Everything changed six years ago when doctors diagnosed Bob Stevens, a photo editor of the supermarket tabloid the Sun, with anthrax.

Fateful call

On the afternoon of Oct. 4, 2001, Keim was in his office when the telephone rang. On the other end was an FBI agent, who told him a plane was on its way to Flagstaff from Atlanta with a culture taken from Stevens' spinal fluid. The FBI wanted Keim to analyze the DNA and find out what type of anthrax Stevens had contracted. This could provide possible clues to where the anthrax originated.

Keim broke into a sweat, and his hands tingled.

He had expected the call. The FBI knew his reputation, and his NAU lab had the world's largest database of about 2,000 anthrax strains.

Four hours later, Keim jumped into his 1990 Toyota 4Runner and made the 15-minute drive to Flagstaff's Pulliam Airport. The setting sun painted the sky red as the small FBI plane landed. A door swung down, and a blond woman stepped out with a cardboard box in her hands.

"This is the anthrax," she said.

The plane and the blonde brought to Keim's mind visions of a famous movie and a moment of humor in an otherwise serious situation.

"I'm like Humphrey Bogart in Casablanca," he thought.

The agents filled out paperwork, then handed the box to Keim, who placed it in the back of his 4Runner and drove back to his lab. A glass tube nestled in ice held the culture from Stevens' body. Keim and a couple of his key researchers worked through the night, isolating, processing and magnifying the DNA using machines and computers similar to ones found in crime labs. In the early morning, they compared the results with their anthrax database. They found a match: a virulent type called the Ames strain. The U.S. Army developed the lab strain in the 1980s as a test for the anthrax vaccine.

Keim outlined his results the next morning in a conference call with the FBI and the Centers for Disease Control and Prevention in Atlanta.

The media knew nothing of Keim's analysis. Then a few days later, a Florida U.S. attorney held a news conference on the anthrax investigation and said the FBI had sent samples for analysis to NAU.

Within 90 minutes, television satellite trucks pulled up and news crews tried to push into his lab. University officials posted 24-hour guards and rushed to install extra locked doors. Hundreds of news reporters left messages on his voice mail.

A producer from the Oprah Winfrey Show wanted to have a camera in the lab when Keim discovered who committed the anthrax attacks.

"I knew I had made the big time when Oprah Winfrey called," Keim said.

He gave no interviews, based on advice from the FBI, which worried that revealing details could jeopardize the investigation and could make him a potential target of whoever committed the crimes. He snuck in and out of his lab using various doors to avoid the media and stopped answering his telephone.

He even had a stalker. A woman, convinced she had contracted anthrax, left messages on his voice mail and showed up outside the building. She wanted him to cure her. She called him once from the waiting room of a doctor's office in Prescott, adding "but I still want to see you, Dr. Keim."

Growing reputation

As the FBI investigation progressed, Keim gave limited interviews and confirmed his help to the government. The FBI sent more cultures for analysis. The Los Angeles Times and the Wall Street Journal featured him on their front pages. He spoke before Congress during terrorism hearings.

His sudden fame gave a new prominence to NAU, the smallest of Arizona's state universities and the least research-intensive of the three. In the university world, famous scientists lead to more research grants and enhanced prestige. Star scientists help draw other high-ranking scientists and students.

"As far as the biosciences go, Paul put NAU on the map, and he continues to do so," said David Engelthaler, a former state epidemiologist who has known him for a decade.

Keim stayed down-to-earth with his sudden fame, Engelthaler said. He could talk to top scientists one day and fit in with regular folk at a community event the next day.

Keim's higher profile had an important side benefit for Flagstaff's economy. In addition to his work at NAU, Keim since 2003 has been director of pathogen genomics at the Phoenix-based Translational Genomics Research Institute, or TGen. The non-profit organization opened a new facility, TGen North, in Flagstaff in 2006, and it has grown to employ 14 people.

"In a sense, he's an economic-development agent all by himself," NAU President John Haeger said.

Yet even as his national reputation grew, he and other researchers faced questions.

Investigators speculated that whoever committed the attacks had access to Bacillus anthracis and an intimate knowledge of how the pathogen worked.

Scientists came under scrutiny.

The bacterium that causes anthrax is rare. The average person's chances of coming into contact are slim. Anthrax is far more common in animals, and human cases often come from people handling infected animal hides.

The anthrax-spiked letters, which sickened 22 and killed five Americans, had been "weaponized." Someone had concentrated the bacterial spores to make them easier to inhale and more lethal.

Some mornings, Keim talked to FBI agents about his anthrax analysis. Then in the afternoons, other agents interviewed him about his whereabouts before the attacks. Keim had an alibi. He had been in Arizona, far from the East Coast where the letters were postmarked.

He, like many others, wondered who did it.

One night he woke up as his mind raced through possible suspects. He reported his suspicion to the FBI.

"They evidently investigated this person, and it wasn't him," Keim said. He declines to say whom he suspected.

More than six years after the crime, the FBI has made no arrests.

Research continues

Keim's current lab is in the locked wing of a science building.

"You might as well smile for the camera; they're recording you," Keim tells visitors as they go through several locked doors.

A sign outside the lab that says "Molecular genetics" hints at the important science going on behind closed doors.

Inside, machines hum. Undergraduate students in white lab coats prepare anthrax DNA samples for analysis. Students sit at banks of computers where they read and interpret DNA analysis from the machines.

The number of researchers in Keim's lab has doubled since 2001, and their research into other pathogens has expanded. Keim also has a second lab through TGen North near the Flagstaff airport.

Keim walks through the NAU lab dressed more like a business executive on a semi-casual day than a scientist, in his chocolate blazer and tan slacks and a blue dress shirt.

His schedule is a blur. The previous day he spoke at a biodefense meeting in Boston. On this morning, he gave Arizona legislators a tour of his lab. In two days, he leaves for Thailand, where he has a project with melioidosis, a lethal infectious disease found in Southeast Asia and northern Australia.

Since 2001, his research on other common diseases has expanded. His various projects read like an encyclopedia of illness and disease: valley fever, the staph "superbug," tuberculosis, salmonella, E. coli, plague, sepsis, pneumonia.

One grant is aimed at developing DNA fingerprinting for all bacterial pathogen threats. It's not science for science's sake. Faster identification of life-threatening illnesses means doctors can diagnose and treat patients earlier.

This year, Keim and his research team got a U.S. patent for a new method to identify various strains of the tuberculosis-causing bacterium. He has similar patents pending for salmonella and E. coli. The Centers for Disease Control and Prevention used his technology to track the recent California spinach E. coli outbreaks.

The anthrax attacks created a sort of "war dividend" for public health, Keim said, as scientists use labs and instruments developed for biodefense to also study common diseases.

"The improvements in public health would never have occurred without the 'anthrax letter' attacks," he said.

Reach the reporter at anne. ryman@arizonarepublic.com or at 602-444-8072.

January 2, 2008

Former CBS Newser Defies Court, Won’t Reveal Sources
By The Observer.

When Jim Stewart stepped down from CBS News in November 2006 after some 16 years of reporting on a range of topics for the Tiffany Network, the longtime Washington-based correspondent retired to the warmth of Florida. Now, depending on a judge’s ruling in an ongoing case, Mr. Stewart could be spending a part of his golden years in a much less sunny position—namely in contempt of a federal court.

In legal documents filed on the eve of the holidays, Mr. Stewart, citing promises of confidentiality, continued to defy a judge’s order to reveal the names of his sources for a series of reports he produced in 2003 for CBS News about the F.B.I.’s investigation into the domestic anthrax attacks of 2001.

If U.S. District Judge Reggie Walton decides in the coming months to hold Mr. Stewart in civil contempt for his defiance, the case, which lately has been unfolding largely under the news radar, could become one of the more tortured—and high-profile—media soap operas of the new year.

And, in the wake of the Valerie Plame affair, in which The New York Times’ Judith Miller served jail time for her own refusal to give up sources, it could offer additional ammunition to advocates of a federal shield law—which would increase journalists’ legal right to protect their sources in court. Norman Pearlstine, the former editor in chief of Time Inc. who earlier this year wrote a book about confidential sources, media law and his pivotal role in the Valerie Plame affair, told NYTV that Mr. Stewart’s case “is a perfect example of why we need a federal shield law.”

Some back story: In the summer of 2002, Attorney General John Ashcroft named Steven Hatfill, a former government scientist, as a “person of interest” in the government’s criminal investigation into the anthrax attacks. Roughly a year later, Mr. Hatfill filed a civil lawsuit alleging that by talking about him to reporters, FBI and DOJ staffers had violated his rights under the federal Privacy Act—a 1974 law that restricts the public disclosure of certain information about government employees.

Over the course of several months in the summer of 2003, Mr. Stewart, who was then covering counterterrorism for CBS News, produced three Evening News reports about the investigation and the FBI’s ongoing surveillance of Mr. Hatfill, whom many authorities considered to be a top suspect. According to court documents, Mr. Stewart’s reporting relied, in part, on four confidential sources at the F.B.I.

Fast-forward four years. This past August, with Mr. Hatfill’s lawsuit still unresolved, Judge Walton ruled that Mr. Stewart and a handful of other reporters who had covered the story—including Michael Isikoff and Daniel Klaidman of Newsweek, Brian Ross of ABC News, Allan Lengel of The Washington Post, and Toni Locy of USA Today—would be required to turn over the names of their sources.

When deposed this past September, Mr. Stewart declined to do so. (All the other reporters except Ms. Locy were apparently released by their sources from their pledges of confidentiality. Ms. Locy claimed in her deposition not to remember the names of her sources.) In response, Mr. Hatfill’s lawyers, who did not return phone calls from NYTV seeking comment, filed a motion to hold Mr. Stewart in contempt of court.

The contempt motion argued that Mr. Stewart’s “entrenched defiance” called for escalating fines, starting at $1,000 per day. And it added: “The risk of industry support for Mr. Stewart’s contempt calls for one additional measure: the Court should prohibit Mr. Stewart’s solicitation or acceptance of any reimbursement for any contempt fines it should levy.”

Just before Christmas, Mr. Stewart responded to the motion for contempt. In extensive court filings, he explained that he had reached out to three of his four F.B.I. sources, only one of whom had agreed to be named. That source, a former F.B.I. public affairs specialist named Edwin Cogswell, had previously been contacted by other reporters in the case and in due course had essentially outed himself.

Mr. Stewart’s legal team went on to argue that because of intervening developments—specifically, the fact that Mr. Cogswell and two other former F.B.I. and Department of Justice employees have come forward as reporters’ sources—the judge should reconsider his initial ruling compelling Mr. Stewart to identify his sources. Mr. Stewart’s lawyer, Lee Levine, declined to comment on behalf of his client.

CBS appears to have largely extricated itself from the affair. Last May, it quashed an effort by Mr. Hatfill’s lawyers to subpoena CBS Broadcasting Inc. A CBS spokesperson declined to comment on the case.

The case has some parallels to that of Dr. Wen Ho Lee, a former government scientist at the Los Alamos nuclear laboratory who had been accused of sharing classified nuclear information with China, and who subsequently sued the federal government under the Privacy Act. In the suit, Mr. Lee’s lawyers similarly subpoenaed six reporters, seeking the identities of their confidential sources in the government. The judge in the case ordered the reporters to testify, but the case came to an end before they did so when Mr. Lee settled with the government.

In Off the Record: The Press, the Government, and the War over Anonymous Sources, Mr. Pearlstine wrote that the Wen Ho Lee settlement would encourage “plaintiffs in other Privacy Act lawsuits against the government to seek testimony from the media whenever leaks from confidential sources are involved.”

And to some media-rights advocates, that appears to have happened, creating concern about reporters’ ongoing ability to credibly promise confidentiality to sources. “The [Privacy] Act was intended to cover such private information as medical data, psychiatric history and employment details,” Sandra Baron of the Media Law Resource Center told NYTV. “To the extent that this would mean that someone who is a suspect in an investigation can’t be reported on, I think that’s outrageous and unacceptable.” Ms. Baron called the pressure put on reporters to give up their confidential sources “a very ugly and very invasive side effect of these Privacy Act claims.”

Whether Mr. Stewart will become the next poster child for the cause depends, for now, on Judge Walton.

– By Felix Gillette 

The Los Angeles Times
Lawsuit claims 3 leaked name in anthrax case

Lawyers for Steven Hatfill, cited as 'a person of interest' in the investigation but not charged with a crime, say the federal officials gave damaging information about their client.

By David Willman, Los Angeles Times Staff Writer
1:34 PM PST, January 11, 2008

WASHINGTON--Lawyers for the former Army physician who was called "a person of interest" in the deadly anthrax mailings in the fall of 2001 today named three federal officials who they said illegally leaked confidential investigative information against their client.

Steven J. Hatfill, who has not been charged with a crime and maintains his innocence, is suing the FBI, the Justice Department and a handful of current or former law-enforcement officials. Hatfill is alleging that the leaks damaged his reputation and violated his right to privacy.

"We have identified three of the leakers who were previously anonymous," said Mark A. Grannis, one of Hatfill's lawyers, near the outset of a sparsely attended hearing in federal court. "Some of the most damaging information leaked in this case [came] straight out of the U.S. attorney's office."

The mailings killed five people and sickened about 20 others from Florida to Connecticut. Coming on the heels of the suicide attacks on the World Trade Center in New York City and on the Pentagon, the mailings led to the shutdown of a Senate office building and heightened the nation's fear of prolonged terrorism.

Hatfill's lawyers alleged that the three officials who leaked investigative details to the news media were Roscoe C. Howard Jr., who from 2001 to 2004 served as U.S. attorney for District of Columbia; Daniel S. Seikaly, who served as Howard's criminal division chief; and Edwin Cogswell, who formerly served as a spokesman for the FBI.

One of Hatfill's lawyers said during the hearing that he would soon seek "sanctions" relating to Howard's additional role in leading the government's defense in 2003 and 2004 against Hatfill's lawsuit. Hatfill's lawyers named the three purported leakers after questioning under oath six reporters from major news-gathering organizations.

Howard and Seikaly, who both now practice privately at the same Washington, D.C., law firm, did not return messages seeking their comment. Cogswell, who is still employed by the FBI but in another capacity, could not be reached. His successor said the bureau would not comment because it concerned a matter of "ongoing litigation."

An attorney with the Justice Department, Elizabeth J. Shapiro, did not confirm or deny the alleged leaking during the court hearing, held to discuss the status of Hatfill's nearly 5-year-old lawsuit. But Shapiro urged the judge presiding over the case to direct the parties to seek settlement of the matter out of court.

U.S. District Judge Reggie B. Walton ordered the lawyers for the government and for Hatfill to seek "mediation" over the next two months. The prospects of a mediated settlement notwithstanding, Walton said he expected a trial could begin in December.

Hatfill's lawyers, Grannis and Thomas G. Connolly, did not speculate in court on the likelihood for a settlement. Afterward, Grannis said, "The court has set a schedule for bringing this case to trial this year, and we're very pleased at the prospect that Dr. Hatfill will finally have his day in court."


The Los Angeles Times
U.S. attorney's office accused of anthrax case leaks

An Army doctor, a 'person of interest' never charged in the deadly 2001 mailings, names three federal officials.

By David Willman, Los Angeles Times Staff Writer
January 12, 2008

WASHINGTON -- Attorneys for the former Army physician who was branded a "person of interest" in the deadly 2001 anthrax mailings named three federal officials Friday who they said leaked investigative details that harmed their client.

The physician, Steven J. Hatfill, has not been charged with a crime and maintains his innocence. Hatfill is suing the FBI, the Justice Department and a handful of present and former law enforcement officials. He alleges that the leaks were illegal, damaged his reputation and violated his right to privacy.

"We have identified three of the leakers who were previously anonymous," one of Hatfill's attorneys, Mark A. Grannis, said near the outset of a sparsely attended hearing in federal court. "Some of the most damaging information leaked in this case [came] straight out of the U.S. attorney's office."

The anthrax mailings killed five people and sickened about 20 others from Florida to Connecticut. Coming on the heels of the suicide attacks on the World Trade Center in New York City and on the Pentagon, the mailings led to the shutdown of a Senate office building and heightened the nation's fear of prolonged terrorism.

Hatfill's attorneys alleged that the three officials who leaked investigative details to the media were: Roscoe C. Howard Jr., who from 2001 to 2004 served as U.S. attorney for the District of Columbia; Daniel S. Seikaly, who served as Howard's criminal division chief; and Edwin Cogswell, who formerly served as a spokesman for the FBI.

One of Hatfill's attorneys said during the hearing that he would soon seek "sanctions" relating to Howard's additional role in leading the government's defense in 2003 and 2004 against the lawsuit. Hatfill's attorneys named the three purported leakers after questioning six reporters under oath. Howard, Seikaly and Cogswell had released reporters from their earlier pledges of confidentiality, according to a lawyer familiar with the matter. Neither the reporters nor their organizations were named in Friday's hearing, held to discuss the status of Hatfill's nearly 5-year-old lawsuit.

Howard and Seikaly, who now practice privately at the same Washington law firm, did not return messages seeking their comment. Cogswell, who is employed by the FBI but in another capacity, could not be reached. His successor said the bureau would not comment because it concerned a matter of ongoing litigation.

An attorney with the Justice Department, Elizabeth J. Shapiro, did not confirm nor deny the alleged leaking during the court hearing. However, Shapiro asked the judge to direct the parties to try to settle out of court.

U.S. District Judge Reggie B. Walton ordered the attorneys for the government and for Hatfill to seek mediation over the next two months. The prospects of a mediated settlement notwithstanding, Walton said he expected that a trial on the lawsuit could begin in December. Hatfill's attorneys, Grannis and Thomas G. Connolly, did not speculate in court on the likelihood for a settlement.

Afterward, Grannis said: "The court has set a schedule for bringing this case to trial this year, and we're very pleased at the prospect that Dr. Hatfill will finally have his day in court."

Hatfill's lawsuit seeks unspecified monetary damages. It alleges that the defendants' actions impeded his ability to secure full-time work and that he suffered "severe emotional distress."

Hatfill, 54, formerly held government positions at the Army's medical research institute for infectious diseases and at the National Institutes of Health. He did not appear in court Friday.

A settlement of the case could carry political implications: On Aug. 6, 2002, then-Atty. Gen. John Ashcroft first identified Hatfill as a "person of interest" in the anthrax mailings. By settling with Hatfill, the government would all but dispel the possibility that he might ever be charged for the deadly mailings. And -- in an election year when fear of terrorism looms as an important issue -- Hatfill's exoneration would remind voters that no suspect has been caught.

The American Spectator
Special Report
Mystery of the WMDs
By Laurie Mylroie
Published 1/29/2008 12:08:38 AM

George Piro, a personable and handsome FBI agent, appeared on 60 Minutes Sunday to tell us Saddam Hussein's secrets. The 36-year-old Lebanese-American was Saddam's interrogator. In addition to whatever the show disclosed about Saddam, it also revealed a lot about how the U.S. media and bureaucracies have handled and stoked the controversies over Operation Iraqi Freedom (OIF) -- basically, afflicted by chronic Alzheimer's. The events relevant to understanding OIF go back nearly 18 years -- to Iraq's August 1990 invasion of Kuwait. Few people worked on Iraq all those years. Still, those doing so now ought to know that history. Neither 60 Minutes nor the FBI do.

Piro explained that when he finally asked Saddam about Iraq's weapons of mass destruction, Saddam replied that most were destroyed by U.N. inspectors (UNSCOM) and the rest were destroyed by Iraq. After their destruction, however, Saddam tricked the world into believing Iraq still had them. "That was what kept him...in power. That capability kept the Iranians away," Piro affirmed.

Yet in the first four years following the 1991 Gulf War, Iraq sought to do the opposite. It worked mightily to demonstrate that all its banned weapons had been destroyed and economic sanctions should be lifted. Baghdad was successful to a very significant extent. By March 1995, considerable pressure existed in the U.N. Security Council to reward the Iraqis for their cooperation and lift sanctions. Congressional leaders complained the Clinton administration was weak on Saddam, and the White House publicly promised to veto any attempt to end sanctions.

Yet the U.S. never had to use that veto. Although Iraq's chemical, nuclear and missile programs were thought to have been neutralized, one issue remained outstanding -- Iraq's biological program. UNSCOM began to address it in July, and as UNSCOM did so, Saddam prepared to toss the inspectors out (which he actually did three years later). In that context, Saddam's son-in-law, Hussein Kamil, who had overseen Iraq's unconventional weapons programs, defected. The regime panicked, fearing what Kamil might tell UNSCOM. It wanted to control the flow of information, and it then acknowledged that all its proscribed programs had been much larger and more sophisticated than it had previously disclosed.

Baghdad relinquished no further proscribed material. It claimed to have unilaterally destroyed what it had just admitted once having and provided no coherent account of the destruction of that material. UNSCOM concluded that the unilateral destruction -- in violation of the U.N. resolution which called for UNSCOM to supervise that activity -- had been a shell-game to conceal the retention of some of the supposedly destroyed material.

In particular, Iraq's biological program remained a "black hole," as UNSCOM chairman, Ambassador Richard Butler, repeatedly complained. In early 1998, editors and reporters of the New York Times met with Butler, who warned that Iraq had "enough biological material like anthrax or botulin toxin to 'blow away Tel Aviv.'" Days before, President Bill Clinton had warned similarly, "Think how many can be killed by just a tiny bit of anthrax, and think about how it's not just that Saddam Hussein might put it on a Scud missile an anthrax head, and send it on to some city he wants to destroy. Think about all the other terrorists and other bad actors who could just parade through Baghdad and pick up their stores."

EVEN IF WE ACCEPT that Saddam tricked UNSCOM, two successive U.S. administrations, indeed, pretty much the entire world, into believing that he retained dangerous proscribed weapons when they no longer existed, this still leaves a major problem. It fails to explain the first four years after the 1991 war -- when Iraq did the exact opposite, working to convince the world that its banned weapons programs had been destroyed and nearly succeeding in doing so.

Other explanations exist. One member of UNSCOM told this author that in April 2003, shortly after Baghdad fell to U.S. forces, an Iraqi biological scientist called to tell him that part of Iraq's biological program had been moved out of the country and part of it had been destroyed shortly before OIF began. Indeed, James R. Clapper Jr. headed the National Geospatial-Intelligence Agency during Operation Iraqi Freedom. He is now Under Secretary of Defense for Intelligence and the Director of Defense Intelligence. In October 2003, Clapper told reporters that "satellite imagery showing a heavy flow of traffic from Iraq into Syria, just before the American invasion in March, led him to believe that illicit weapons material 'unquestionably' had been moved out of Iraq," as the New York Times reported.

The Iraq Survey Group learned that Iraqi intelligence operated five biological laboratories until the start of OIF. In 2004, the Pentagon debated whether to release a cache of captured Iraqi documents. Individuals familiar with those papers say they justified the war. Then Under Secretary of Defense for Intelligence, Stephen Cambone, however, argued against publicly releasing them, and Secretary of Defense Donald Rumsfeld sided with Cambone. Subsequently, a handful of those documents were leaked to a small on-line news service.

Among the leaked Iraqi papers is one detailing the production of small amounts of anthrax and another detailing the production of small amounts of mustard gas. Such quantities could be used for terrorism.

Ronald Kessler also interviewed Piro, and Kessler's latest book, The Terrorist Watch, includes three important points absent from the 60 Minutes interview. First, "Saddam was very smart -- a lot smarter than we gave him credit for in the West," Piro told Kessler. Second, "after Desert Storm [the 1991 war], Saddam considered himself to be at war with the United States," Piro explained. Finally, Saddam's foremost concern was his legacy. Before OIF began, Saddam was offered a comfortable exile in Saudi Arabia, but Saddam told Piro "he cared more about what people would think of him in five hundred or a thousand years than they did that day."

These observations knock down two views embraced by Middle East experts after the 1991 war that helped buttress Bill Clinton's do-nothing policy toward Iraq -- that Saddam was "stupid" and that his foremost concern was his own survival and the survival of his regime. Taken together, Piro's three observations suggest that sometime in the future, when Operation Iraqi Freedom is no longer a political football, Americans will likely learn that Saddam was indeed a major threat and that he was not idle in the 12 years between the end of the 1991 war and the start of the second war.

Laurie Mylroie is an adjunct fellow at the American Enterprise Institute and author of Study of Revenge: The First World Trade Center Attack and Saddam Hussein's War Against America. Her articles can be found at lauriemylroie.com.

February 1, 2008, 7:40AM EST
Creating a Great Place to Work

Griffin Hospital created an award-winning work environment by honoring its commitment to open communication. Our columnist explains how

by Carmine Gallo

The research and consulting firm Great Place to Work Institute recently issued its annual list of the best companies to work for in the U.S. In the past several years, I have interviewed leaders at some of the companies on the list, including Google (GOOG), Intuit (INTU), Cisco (CSCO), Paychex (PAYX), Baptist Health South Florida, and FedEx (FDX). While benefits are important, our conversations show that employee engagement is crucial—employees want to work in an environment where they have a voice. For one example of a company that has managed to create such an environment, consider No. 49 on this year's list, Griffin Hospital in Derby, Conn.

Griffin Hospital leaders tell me the secret to landing on the list for eight straight years is a policy of open communication and action with their patients, employees, and volunteers. They say their managers go beyond simply listening to actively soliciting input, and managers turn that information into tangible improvements.
Standing Up Under Pressure

In my interview with Griffin Vice-President Bill Powanda, he told me a memorable story of how the hospital's communications policy was put to the test. In November, 2001, an elderly woman was admitted to the hospital and died several days later. Ninety-four-year-old Ottilie Lundgren had become the nation's fifth victim of anthrax inhalation. Although the hospital's lab had confirmed the results through multiple tests, the FBI had yet to come to its own conclusions. Griffin CEO Patrick Charmel had called a meeting to inform the 400 day-shift employees of the situation. The FBI was adamant about delaying the announcement until after it had completed its own tests, a full six days after Lundgren had been admitted. Even then-Governor John Rowland got involved, requesting that the hospital cancel its staff meeting.

With all this pressure bearing down, Charmel and Powanda were beginning to wonder if holding the meeting was the right decision. They called a representative from the American Hospital Assn., who said that if their situation had been taking place in any other hospital, he would have also recommended that the meeting be delayed. But Griffin was different: "If you do not follow the open and honest culture you have created at Griffin, you will destroy in one day what has taken you 10 years to build." Charmel held a staff meeting as scheduled to communicate the facts of the case, the results of the tests, and how anthrax is spread.

Griffin went on to win an award from a local newspaper for its boldness and commitment to the public's right to know. Charmel's actions were "nothing short of heroic," according to the New London Day. A front-page story told readers what his colleagues already knew: Charmel had become a hero to his staff long before the anthrax crisis because he committed himself to making them all feel as if they played key roles in the hospital's success, which they most certainly do.

Griffin leaders like Charmel have set a precedent with staff and provide a model for behavior that all employees—managers, doctors, nurses, and administrators alike—strive to emulate. Every employee is considered a "caregiver"—even the security guards, parking lot valets, and chefs—and they all feel comfortable addressing Charmel directly with praise, concerns, or suggestions. If an employee believes the hospital is failing to put the patient first in any area of care, Charmel is the first to know; he makes himself as available as possible. He keeps the lines of communication open with the following practices:

A long day's walk. Charmel spends most of the working day in the hospital, but out of his office. He typically starts office work after 5 p.m. because he meets with people in their own departments all day; they do not come to him. This is the ultimate open-door policy.

A monthly orientation. Charmel welcomes new employees with a two-hour presentation every month. This orientation is mandatory for all new employees and volunteers, and Charmel does not miss it. First impressions count.

A biannual meeting for everyone. Twice a year Charmel hosts a "State of the Hospital" meeting for all employees and volunteers, where everyone hears exactly the same information as the board of directors: strategic information, market-share data, financial statistics, and plans for the future. Everything.

Regular updates. Charmel contributes to a daily newsletter, Griffin Today, which is distributed to 700 hospital workstations accessible to both employees and patients. The daily is supplemented by an electronic newsletter.

Old-fashioned correspondence. Charmel sends letters directly to the homes of employees and volunteers, about hospital, community, or medical issues as they directly affect them.

Many CEOs talk about creating a "customer-centric" organization. But the management at Griffin Hospital provides a working example of how it's done.

Carmine Gallo, a business communications coach and Emmy-Award winning former TV journalist, is the author of Fire Them Up! and 10 Simple Secrets of the World's Greatest Business Communicators. He writes his communications column every week. 

The Times of New Jersey
Ex-mayor in Texas to share anthrax insight
Tuesday, February 19, 2008

There is life after Hamilton Township politics and former Mayor Glen Gilmore has found it 1,632 miles from his Hamilton Square home, at least for a few days.

While the former mayor is not making a career change just yet, he did accept an invitation extended in October from the National Emergency Response and Rescue Training Center in College Station, Texas, to share with other government officials what he learned from responding to Hamilton's anthrax scare in 2001. He is in Texas through tomorrow doing just that. 

 "I provided quite a bit of background and they asked if I'd come out here and critique a new leadership seminar for Homeland Security that they're doing," Gilmore explained yesterday in a phone call from this Texas A&M University town located about 100 miles northwest of Houston.

"I flew into Houston and drove here. It's a beautiful day. They were asking me how cold it was back home."

Called "Lessons in Leadership for America's Anthrax Crisis," the four-hour seminar for elected officials from jurisdictions with populations of 200,000 or greater will use Hurricane Katrina case studies prepared by Harvard University as examples. It was scheduled to begin this morning with a dozen officials participating. All the courses are funded by Homeland Security.

Gilmore was not paid for his participation, but he will receive reimbursement for travel and lodging.

Hamilton became the epicenter of the anthrax scare in October of 2001 with the closing of the township postal facility on Route 130 when it was discovered that three anthrax-laced letters had passed through it.

Gilmore's impatience with the government's response prompted the national press to praise him when, six days after the discovery, he ordered the postal facility closed and sent a police car to South Jersey to pick up 18,000 Cipro antibiotic pills for postal workers. More than 1,000 postal workers were treated.

Seven Hamilton-area postal workers were infected, but none died.

Time magazine called Gilmore a "man of action." To the Washington Post, he was a "high-energy suburban mayor."

To Rick Comley, director of executive programs for National Emergency Response and Rescue Training Center, Gilmore was a man whose name popped up when the subject of anthrax was explored.

"He's helping us develop a case study course funded by Homeland Security and is participating in the first pilot of this course. We asked him to come down and give us the benefit of his expertise," said Comley. "The first pilot will be on Katrina, the second on anthrax, the third on the Baltimore tunnel fire and the last on the attack on the Pentagon."

Today's seminar with Gilmore was designed, Comely explained, "to find out how off the mark we are" in terms of emergency security. Mayors from Sugarland, Bryan and College Station, Texas, will be among those in attendance.

An attorney by profession, Gilmore lost his bid for re-election in November to Republican John Bencivengo amid charges of budget shortages and mismanagement. Bencivengo has a bit of anthrax experience himself. He ran a company called Eterna and sold a product called Skin Guard that was advertised as the "first line of defense" against anthrax. He has since blamed the manufacturer for false or misleading claims.

Gilmore would not say what his future employment plans were and stressed that his visit to Texas was purely "accepting an invitation."

"The lesson I learned from what happen with anthrax in Hamilton was to make sure you do everything possible to protect lives and not wait for the cavalry to come," Gilmore said, "because the cavalry may not show up and, even if they do, they might not be fit for the fight."

Contact Joyce J. Persico at jpersico@njtimes.com or at (609) 989-5662.

PRESS RELEASE: The Reporters Committee for Freedom of the Press

FOR IMMEDIATE RELEASE -- Contact: Lucy Dalglish, (703) 807-2100
Reporters Committee calls for shield law after Locy held in contempt

Feb. 19, 2008

In light of the drastic contempt sanctions imposed on former USA Today reporter Toni Locy today, The Reporters Committee for Freedom of the Press calls on Congress to quickly pass the reporter's shield bills that have been progressing through the House and Senate.

U.S. District Judge Reggie Walton today found Locy in contempt of court for failing to cooperate in former Army scientist Steven J. Hatfill's Privacy Act suit against the government. His written order imposing the sanctions he outlined orally in court is expected to be filed in the coming week.

Locy faces escalating fines for her refusal to identify sources for her story about the federal government's investigation of Hatfill. She will be fined $500 a day for seven days, $1,000 a day for the following seven days, and $5,000 a day for the seven days after that. In all, she could accumulate more than $45,500 in fines over the 21-day period. Walton is also considering whether to order her to pay the fines herself, with no assistance from Gannett Co., owner of USA Today, or anyone else.

"Of all the federal court sanctions on reporters for refusing to reveal confidential sources over the past several years, this is perhaps the most disturbing," said Lucy A. Dalglish, Executive Director of the Reporters Committee. "Toni Locy is being punished for doing what reporters are supposed to do: making sure important information gets to the public about whether the government had the investigation into a major public health threat under control. We ask the U.S. Senate to take up the Free Flow of Information Act as soon as possible," Dalglish said.

"Toni Locy faces possible financial ruin for doing her job, and doing it well," Dalglish said.

Locy was one of five reporters Hatfill subpoenaed while trying to track down anonymous government sources who had identified him as a "person of interest" in the investigation into the 2001 anthrax attacks. Without identifying the source of those disclosures, Walton said, Hatfill cannot proceed with his suit against the government for releasing information about the investigation.

Since being subpoenaed, Locy has maintained that she does not remember the specific sources who identified Hatfill, but rather only a catalog of those who gave her information about the investigation generally. She no longer works for USA Today.

If Congress is able to get a shield bill through both houses and signed by the president, it should help Locy avoid the contempt sanctions. A bill has already passed the House, and the Senate Judiciary Committee has passed a similar bill, although that has not gone to the Senate floor yet.

Under the House bill, H.R. 2102, Sec. (2)(a)(3), the identity of a confidential source is protected unless it meets one of four specific exceptions, relating to: prevention of acts of terrorism, (2)(a)(3)(A); prevention of imminent death or significant bodily harm, (2)(a)(3)(B); certain trade secrets, health information, or financial information, (2)(a)(3)(C); and, classified information that will cause significant harm, (2)(a)(3)(D). None of those exceptions apply to the Hatfill case.

Under the Senate bill, S. 2035, the identity of a confidential source can only be compelled in a civil lawsuit if "the testimony or document sought is essential to the resolution of the matter," Sec. (2)(a)(2)(B). A number of the sources used by journalists in the Hatfill story have already come forward, and the case can be easily resolved without Locy's information, particularly because she has testified that she cannot specifically recall which of her many sources might have given her specific information that violated the Privacy Act.

Additionally, Sec. (2)(a)(3) of the bill requires that before a journalist can be compelled to reveal a source, a federal judge must determine "that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information." Again, since Hatfill has already obtained information regarding information released by government officials, there is little or no public interest in compelling a reporter to release more information, and the public interest in allowing reporters to cover government actions in something as critically important as an anthrax attack should easily outweigh the interest in disclosure.

At least 13 news media subpoenas have been served in this case, including to reporters from ABC, CBS, NBC, The Associated Press, The Washington Post, Newsweek, the Los Angeles Times, and Baltimore Sun. Most of those were withdrawn after either the government made sources available for depositions or the reporters' sources came forward. Walton today also delayed ruling on contempt sanctions again former CBS reporter James Stewart. Stewart has already identified three anonymous sources who granted him a waiver of his promise of confidentiality but refuses to identify any additional sources, saying they are no longer necessary for Hatfill to continue his case.

February 19, 2008
Judge holds reporter in contempt in anthrax case
By Kevin Johnson, USA TODAY

WASHINGTON — A federal judge held a former USA TODAY reporter in contempt of court on Tuesday for failing to identify sources who named former Army scientist Steven Hatfill as a possible suspect in the 2001 anthrax attacks that killed five people.

U.S. District Judge Reggie Walton said he would begin fining Toni Locy $500 per day, escalating to $5,000 per day, until she identifies the sources.

Hatfill's lawyers asked that Locy — and not her former employer or others — be required to pay the fines.

The judge said he would consider postponing the penalty, however, to allow Locy and her lawyers to appeal the contempt ruling. Walton didn't immediately decide whether Locy would be personally responsible for payment of the fines, if imposed.

At the same time, Walton delayed a decision on whether to hold former CBS reporter James Stewart in contempt for not disclosing sources for his reporting on the matter.

Hatfill, who was publicly identified in 2002 by then-attorney general John Ashcroft as a "person of interest" in the attacks, has never been charged. His lawyers have argued that news reports linking him to the federal investigation irreparably damaged his reputation.

"I don't like to hold anyone in contempt," Walton said. "I fully appreciate the importance of a free press. On the other hand, the media has to be responsible."

Hatfill was not present at Tuesday's hearing. His attorney, Patrick O'Donnell, declined to comment after the session.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, described the judge's order as a "drastic action."

"Of all the federal court sanctions on reporters for refusing to reveal confidential sources over the past several years, this is perhaps the most disturbing," Dalglish said.

"Toni Locy is being punished for doing what reporters are supposed to do: making sure important information gets to the public about whether the government had the investigation into a major public health threat under control," she said.

Dalglish also urged Congress to take up proposed legislation that would shield reporters from being forced to identify confidential sources.

"Toni Locy faces possible financial ruin for doing her job and doing it well," Dalglish said.

Locy is one of five reporters Hatfill has subpoenaed to disclose government sources who identified him as a possible suspect.

Now a journalism professor at West Virginia University, Locy has argued that she spoke to a number of officials regarding the anthrax inquiry, but she cannot remember which sources provided information linking Hatfill to the government's inquiry during her reporting for USA TODAY.

Published: February 21, 2008 12:33 am
WVU students get firsthand knowledge on anonymous sources

Journalism professor under judges’ threat of being held in contempt
By Katie Wilson
Times West Virginian

FAIRMONT — A West Virginia University professor is providing her students with firsthand experience.

WVU journalism professor Toni Locy teaches media law. At this time, Locy is under threat of being held in contempt by a federal judge for refusing to reveal her sources.

Locy said she has covered her case in class because it’s important prospective reporters understand what they may face on the job.

“I feel I have to prepare students for the real world and unfortunately, this is the real world for reporters,” Locy said.

According to The Associated Press, U.S. District Judge Reggie B. Walton said Locy defied his order last August that she cooperate with Steven J. Hatfill in his lawsuit against the government. Walton indicated he would impose a fine until she divulged her sources, but that he would take a few more days to decide whether to postpone the penalty as she pursues an appeal.

Hatfill, who worked at the Army’s infectious diseases laboratory from 1997 to 1999, was publicly identified as a “person of interest” in the 2001 anthrax attacks. He is suing the Justice Department, accusing the agency of violating the federal Privacy Act by giving reporters information about the FBI’s investigation of him.

“I will order she provide the sources of information,” Walton said during a hearing, as Locy looked grim and slowly shook her head in disagreement.

“I don’t like to have to hold anyone in contempt,” the judge added, but when it comes to cases where a person says his reputation was destroyed because of stories published about him, “the media has to be responsible.”

Walton indicated that the amount of the fine would be $500 each day for the first week, $1,000 each day the second week and then increased to $5,000 each day the third week. Hatfill’s attorneys had asked Walton to initially fine Locy $1,000 a day the first week, with the amount increasing by $1,000 each subsequent week to force compliance.

Locy is a former Associated Press reporter who wrote about Hatfill while working for USA Today.

During her classes, Locy is discussing some of the issues this case raises for reporters everywhere.

“It affects all of us,” Locy said. “We’ve talked about the dangers reporters covering police will face if this decision holds up. No reporter will be able to talk about an ongoing investigation if this holds up.”

Journalists everywhere are watching Locy’s case and renewing calls for a federal shield law for reporters. Last year, the House of Representatives passed a measure that would back the right of reporters to protect the confidentiality of sources in most federal court cases, but the full Senate has not yet acted on a similar measure.

One of those groups is the Society of Professional Journalists.

“This case is on point as to why we need to stop allowing the government, especially federal prosecutors and judges, to strong arm the free press into serving its needs,” said Kevin Z. Smith, assistant professor of journalism at Fairmont State and secretary-treasurer of SPJ. “Forcing reporters to reveal anonymous sources undermines our ability to do our work,”

Smith noted he didn’t like anonymous sources and when he teaches, he notes they should only be used as a last resort, but reporters in Washington, D.C., often face the fact that it’s nearly impossible to get a story without promising anonymity. He noted a lot of thought must go into every use of an anonymous source.

“When it’s met the ethical standards and that information is deemed necessary to unveil the truth to the public, especially since we are watchdogs of government, then we are doing a great service by telling the story, even with secret sources,” he said.

E-mail Katie Wilson at kwilson@timeswv.com.

Reporter risks ruin to protect sources
By Mike Cronin
Monday, February 25, 2008

Making history is not always fun, particularly when fighting for a principle could lead to financial ruin.

Reporter Toni Locy, a Washington County native, faces a $500-a-day fine -- possibly escalating to $5,000 a day plus jail time -- since a federal judge last week found her in contempt of court for refusing to name confidential sources who talked to her about the potential connection a former Army scientist had to the 2001 anthrax attacks.

USA Today, which published the stories and employed Locy at the time, is paying her legal bills. But U.S. Judge Reggie B. Walton of Washington, D.C., another Washington County native, is considering prohibiting USA Today -- or anyone other than Locy -- from paying any contempt fines that he imposes. Locy said she plans to appeal the contempt ruling.

"Reporters don't have subpoena power; there are limits to where we can go," said Locy, 48, who now teaches journalism at West Virginia University in Morgantown. "So we need insiders, people with a conscience. We need to know about abuses of power. 

"In our democracy, a robust press is crucial to making sure government is accountable," she said.

Locy has worked at The Associated Press, The Washington Post and The Boston Globe. She began her career at The Pittsburgh Press after graduating from WVU in 1981. Locy is the oldest of six children whose mother was a coal miner.

Lucy A. Dalglish, executive director of the Washington-based Reporters Committee for Freedom of the Press, said Walton's contempt charge against Locy is the most egregious of a recent spate of court decisions against journalists who refuse to identify confidential sources.

"If this is allowed to stand, no one will be able to report on a federal investigation until charges have been brought," Dalglish said. "If no one could do that in the anthrax case, that would've done an incredible disservice to the American public."

Five people died after being exposed in fall 2001, shortly after the 9/11 terrorist attacks, to anthrax spores sent through the U.S. mail. News outlets and the Washington offices of two Democratic U.S. senators received anthrax-contaminated letters. The FBI continues to investigate the case. No charges have been filed.

Then-Attorney General John Ashcroft publicly identified Steven Hatfill, a former bioweapons expert for the Army, as a "person of interest" in the investigation. Hatfill has sued Ashcroft, the U.S. Justice Department and the FBI, accusing them of violating his privacy rights. The federal Privacy Act limits the disclosure of personal information by government officials.

Walton said identifying Locy's sources would help Hatfill pursue his lawsuit.

The main story in question was published in May 2003 and reported that the FBI had Hatfill under round-the-clock surveillance. Locy reported that sources said the investigation focused on Hatfill because many investigators believed he was behind the anthrax mail attacks. Those sources requested anonymity because the anthrax probe remained active.

Hatfill's Washington-based lawyer, Mark Grannis, declined to comment beyond court documents he has filed on behalf of his client. In a May 9 memorandum, Grannis addressed Locy's and other reporters' contention that they should be allowed to keep sources confidential.

Grannis argued journalists "have no right to withhold evidence that private citizens need in order to obtain justice."

In an Aug. 13 opinion, Walton wrote that allowing journalists the privilege of always protecting confidential sources -- even when they have "allegedly illegally leaked information" -- can have "the perverse effect" of preventing someone such as Hatfill from repairing "his good name, reputation and ability to earn a living."

Bob Dubill, 71, executive editor at USA Today when Locy wrote the two stories at issue, said he was "sort of taken aback by this notion of judges requiring reporters to provide sources."

Sometimes, promising sources confidentiality is the only way to ensure the public receives the full story, Dubill said.

"That's what Toni did in her coverage of the anthrax-letter attacks," Dubill said. "That was a story with intense public interest. People were scared and, in some cases, petrified. Sources in stories like that won't come forth in the future if they can't rely on confidentiality."

Dubill described Locy in her post-9/11 reporting as dedicated and tenacious in "trying to draw a picture for our readers."

That cannot be allowed to cease happening, according to Kellen Henry, 21, a WVU senior who took Locy's media law class last semester.

Henry drafted a petition asking Walton to reverse his contempt decision. She circulated it to journalists and journalism students at WVU. Within hours, it made its way to the national office of the Society of Professional Journalists in Indianapolis.

"Journalists shouldn't be used as an investigative arm of the justice system," said Henry, a staff writer for WVU's paper, The Athenaeum.

"People open the paper and they want to know the truth. If the government or legal system is leaning on us and taking our information, it's going to hinder the public from making informed decisions."

Following Henry's lead, and in response to Locy's case, the Society of Professional Journalists released a statement urging immediate passage of a shield law. That would protect journalists and their confidential sources. The U.S. House of Representatives passed a version of a federal shield law in October. A Senate vote on its version is pending.

Walton continues to review whether to hold former CBS reporter James Stewart in contempt for refusing to reveal sources during his coverage of the anthrax investigation.

In his August opinion, the judge also ordered Newsweek reporters Michael Isikoff and Daniel Klaidman and Washington Post report Allan Lengel to reveal their sources. The Associated Press quoted attorneys involved in the case as saying those journalists had cooperated in revealing information after their sources identified themselves to Hatfill's lawyers.

Walton quashed subpoenas filed on behalf of Hatfill to obtain further information from ABC, The Washington Post, Newsweek, CBS, The Associated Press, the Baltimore Sun and The New York Times.

In the meantime, Locy said she worries about her financial situation and possible imprisonment. But she doesn't begrudge Hatfill his rights.

"He has every right to sue," Locy said. "I do not challenge that right. There's just got to be a way to make him as whole as possible without trampling on the First Amendment."

Mike Cronin can be reached at mcronin@tribweb.com or 412-320-7884. 

Hair Tells Tale of Where You've Been
Water molecules in shafts offer up personal history, researchers say
By Randy Dotinga
US News & World Report
Posted 2/25/08

MONDAY, Feb. 25 (HealthDay News) -- The water you drink stays in your hair, and it may reveal details about where you've been, new research suggests.

By analyzing the makeup of water molecules from human hair, University of Utah scientists were able to roughly determine the regions where people recently lived. While the approach isn't always accurate, the researchers say it's correct about 85 percent of the time.

Although the discovery has some implications for medical research, its more immediate use might be in tracking the history of unidentified bodies and perhaps testing the alibis of criminal suspects. "The big picture is for us to provide a tool for law environment," said study author James Ehleringer, a University of Utah biology professor. "This is an attempt to really try to help."

According to Ehleringer, the researchers wondered about the potential secret history exposed by water after the anthrax attacks of 2001. "We began to ask whether microbes might record the water environment in which they were living," he said.

Water, after all, makes up a major chunk of the human body. It comes from not only the liquids that people drink but also the food they eat.

To figure out if they could detect a kind of fingerprint from water, the researchers extracted water molecules from protein in human hair. Then they broke the molecules apart and studied the concentration of heavy and light isotopes.

The study findings appear in this week's online issue of the Proceedings of the National Academy of Sciences.

The scientists found what they call an "isotopic fingerprint," a combination of the ratios of heavy and light isotopes in the hydrogen and oxygen of the water.

The fingerprints can give scientists a rough idea of where the water came from, depending on how heavy it is. This is not related to the more familiar concept of "soft" or "hard" water.

Due to variations in geography, water is heavier in some parts of the world than others, Ehleringer said. According to him, it's now possible to differentiate water that comes from different places.

The technique can't pinpoint an exact city or town, but can say whether water came from a kind of place, such as a coastal region, he said. "For instance, if you were to give me bottled water from Sacramento, California, and Denver, Colorado, I could easily tell them apart," using the technology, he said. "But I might not be able to tell apart something from Sacramento, California, versus Fresno, California. That might be too close a region."

And what about people who only drink bottled water that may come from far away? Unless they boil their potatoes and make their coffee and bottle their beer in the water, local water will still show up in their bodies, Ehleringer said.

The cost of the test is about $100, said Ehleringer, who works for a company promoting the technology.

According to the researchers, the technology could be used in medicine. Hair might indicate that someone such as a diabetic -- drinks a lot of water or could offer clues to someone's diet.

Law enforcement is already using the technology. In Utah, homicide detectives tested the hair of an unidentified murder victim and discovered that she probably moved around the Northwest in the two years before she died.

Next, the scientists are planning to figure out where she grew up by testing the water in her teeth. "I think you'll see this technology have an impact on (identifying) unidentified victims from around the country," said Todd Park, a Salt Lake County sheriff's homicide detective. "The more specific information I can get about my victim, the better the odds will be for me to find out who she is."

The Huffington Post
Sacrificing the First Amendment

Comment by Rod Lurie
Posted February 25, 2008

Boy, I'll tell you, there is something really insidious going on here.

A woman named Toni Locy is being held in contempt of court because she won't reveal her sources from a story she wrote in USA Today over six years ago.

I have just finished shooting a film called Nothing but the Truth which deals with this very topic. Kate Beckinsale plays a reporter who goes to jail protecting the identity of a confidential source who reveals to her the name of a CIA agent. The prosecutor in the film cites national security as a reason to coerce Kate's character into submission. It becomes the film's central conflict.

In her article, Locy revealed that Stephen Hatfill was a prime suspect in the government investigation of the 2001 anthrax attacks. Hatfill has sued the government for destroying his reputation. U.S. district court judge Reggie Walton, the judge in the case, is ordering Locy to reveal to him and Hatfill's attorneys who it was that gave her her information.

Judge Walton has found an unusual way to enforce the contempt citation. He wants to fine Ms. Locy on a daily basis until she talks. Its starting at $500 a day but will eventually grow to $5K a day. What's really interesting is that the judge is considering (at Hatfill's request) not allowing USA Today or Gannett to pay the fines. This is even more damaging than being sent to jail. After all, a few days out of the joint and you can go back to life as usual. The same can not be said for recovering from bankruptcy. If all this stands, Locy will be financially wiped out for having done her job and done it well.

Hatfill certainly deserves remedy for the damage done to him. But the First Amendment can not be sacrificed for his benefit... and sacrificed it will be...

Simply stated, sometimes journalists can only get their information from informants who must remain anonymous in order to protect their careers and sometimes even their lives:

Watergate: Confidential sources.
The Pentagon Papers: Confidential sources.
Enron: Confidential sources.

The examples of anonymous sources enlightening society, holding the government or corporations accountable for their behavior, goes on an on.

True, sometimes, anonymous sources, when merely stating opinions or running a smear campaign, are certainly cowards. I have no respect for those who spoke under the veil of secrecy to the New York Times in last week's attack on John McCain. A prominent first amendment attorney told me he feared the proposed Federal Shield law now before the Senate may well be shut down because of Republican anger at the New York Times article.

However, when reporters are in the business of obtaining hard facts that service the free flow of information, journalists should have a right to obtain that information without fear of personal ruin or incarceration.

The ability of the press to print their stories without the government trying to get them to betray their sources is as essential to a free press as the ink it is printed with. Otherwise, who will hold accountable those who hold power over us? For what is the nature of a government without accountability? We should all shudder at the thought.

And so should Judge Walton.

U.N. Inspector Gets a Rash, Raising Contamination Suspicion

Staff Reporter of the Sun
February 27, 2008
The New York Sun 

UNITED NATIONS — Just as its work is wound down toward final shutdown Friday, the unit that for 17 years hunted for Saddam Hussein's weapons of mass destruction — and in the process became the most watched U.N. operation — survived a new scare yesterday, as one of its inspectors developed a rash, leading to suspicion of contamination by a remnant of a chemical or biological weapon.

The NYPD's Emergency Service Unit responded to the scene, and the FBI was also contacted, according to a police spokesman, Paul Browne. After tests were conducted on air quality in the building adjacent to the United Nations' main compound on First Avenue, where the inspector worked, "no traces of harmful substances were found," a U.N. spokeswoman, Marie Okabe, said. The U.N. Monitoring, Verification, and Inspection Commission staffer first noticed the rash in December, after handling material brought to New York from Iraq. The rash disappeared at the time, and the inspector did not even report the incident to his superiors. Yesterday, however, after wearing the same ski gloves that he had used when he contracted the initial rash, the malady returned, and the inspector asked "out of precaution" to be checked at a U.N. medical facility, according to Ms. Okabe. The incident was then reported to the U.N. security authority.

Officials at the U.N. Department of Safety and Security called the "host country authorities," Ms. Okabe said. The inspector, whose name was not released, was in fine health yesterday, she added, but his gloves were sent to a laboratory in Edgewater, Md., for further examination.

When Unmovic shuts down its operation Friday, all the material will remain in U.N. possession. It has "already been continuously decontaminated for the last year and a half," an official who asked not to be named said. Last August, however, a vial that was found at the Unmovic offices led to an evacuation of its building, as it was suspected of containing traces of a chemical weapon. The scare was one of the reasons the Security Council decided to shut down the operation.

Unmovic was established in 2000 to replace older inspection teams that, since the 1991 Gulf War, were charged with verifying that Baghdad destroyed its previously documented arsenal of chemical and biological weapons, as well as all of its long-range missiles. The Vienna-based International Atomic Energy Agency handled Iraq's nuclear weapons disarmament.

Although the head of Unmovic just prior to the March 2003 invasion, Hans Blix, declared that the inspectors found "no smoking gun," none of his reports to the Security Council made a conclusive statement saying Saddam's Iraq had been completely disarmed. Since the war, the inspections team, financed by Iraq, mostly worked on archiving the mountains of material collected during its years of work. Last summer, the Security Council decided to dissolve the team by the end of February.

By yesterday, only three Unmovic workers remained on staff, attempting to complete all the preparations to archive documents, vials, and other materials that had been brought over from Iraq.

The Reading Eagle (Editorial)
February 28, 2008
Shield law needed to protect sources

The Issue: Another journalist has been found in contempt of court for refusing to reveal her confidential sources.

Our Opinion: A shield law is making its way through Congress that would protect journalists from having to reveal their sources. It needs to be passed as soon as possible.

Again the ability of journalists to keep the public informed is under attack, demonstrating the need for federal lawmakers to finish work on the proposed shield law as quickly as possible.

Last week a federal judge found a former USA Today reporter, Toni Locy, in contempt of court for refusing to reveal her confidential source for stories she wrote about an Army scientist, Dr. Steven J. Hatfill, identified by investigators as a person of interest in the 2001 anthrax attacks.

The attacks, which involved anthrax powder in envelopes mailed to various individuals, killed five people. The case remains unsolved.

Investigators became interested in Hatfill because of his background in biochemistry.
Hatfill had worked for Science Applications International Corp., a defense contractor, but was fired after his name began to appear in news articles about the anthrax attacks.

He also had worked at the Army’s biodefense laboratory at Fort Detrick in Frederick, Md., between 1997 and 1999.

Investigators searched Hatfill’s apartment at least twice, but no charges were filed against him. Hatfill has denied having anything to do with the anthrax attacks.

Hatfill is suing the federal government, claiming his reputation has been ruined because of leaks to the news media from law enforcement officials.

Locy and Jim Stewart, a former reporter for CBS, were subpoenaed to testify in Hatfill’s civil trial against the government, but both refused to reveal the sources for their stories.

Judge Reggie B. Walton said he would impose a sliding scale of fines beginning at $500 for each day Locy refuses to name her source. After three weeks he will consider other options, including jail time.

Walton said he would consider imposing contempt of court charges against Stewart at a later time.

In citing Locy with contempt of court, Walton said her testimony could help Hatfill pursue his case against the government.

However, Lucy A. Dalglish of the Reporters Committee for Freedom of the Press saw it differently.

“Of all the federal court sanctions on reporters for refusing to reveal confidential sources over the past several years, this is perhaps the most disturbing,” she said. “Toni Locy is being punished for doing what reporters are supposed to do: making sure important information gets to the public about whether the government had the investigation into a major public health threat under control.”

The danger in forcing journalists to reveal their confidential sources is that soon there will be very few people who will be willing to provide journalists with information concerning governmental fraud and corruption.

The Supreme Court has ruled that under the Constitution journalists cannot be afforded immunity from subpoenas to testify in court.

That’s why a federal shield law for journalists is crucial. Similar laws already have been passed by 32 states, including Pennsylvania, but they do not provide protection at the federal level.

The House has passed its version of a federal law by an overwhelming vote of 398-21. The measure is now being taken up by the Senate.

Passage of this measure should not be seen as a victory for journalists but for the public, because it’s the public who ultimately will be left in the dark if journalists are unable to do their jobs.

The Los Angeles Times
Crying wolf over bioterrorism

The threat posed by synthetic bugs is microscopic. So why are U.S. officials making such a big deal?
By Wendy Orent
March 2, 2008

'Mother Nature is the most dangerous terrorist," says Michael Kurilla, the nation's unofficial biodefense czar. "The microbial world is almost unlimited in its [terrorist] potential."

But despite the emergence of such new diseases as SARS and the H5N1 avian flu, it isn't Mother Nature only that worries Kurilla, the director of the Office of Biodefense Research Affairs of the National Institute of Allergy and Infectious Diseases. He's also concerned about the threat from synthetic biology -- the possibility that rogue scientists and bioterrorists could make diseases in the laboratory to be used for terrorism. As he puts it, "The threat and the reality of synthetic biology is becoming greater and greater every day."

A recent report in Science magazine seems to add another arrow to the quiver of those who worry that synthetic biology could become a source of terrorist weapons. A group of scientists, among them J. Craig Venter, whose team decoded the human genome in 2000, has succeeded in synthesizing a bacterial genome entirely from scratch.

Venter's feat, however, doesn't mean that terrorists will be making new germs to kill us. And it shouldn't mean that the government should spend billions of dollars trying to counter a chimerical threat by developing an equally chimerical antidote.

Synthesizing a bacterium from an existing genome changes nothing fundamental in our understanding of synthetic biology. Virologist Eckhard Wimmer synthesized poliovirus in 2002, and Venter's team made a bacteria-eating virus in 2003. But Venter's latest experiment was the first to synthesize so large a piece of DNA. He hasn't gotten his germ to "boot up" yet -- it still has to be put into a living cell and show that it can grow and multiply. Even so, scientists skeptical about the significance of his achievement think Venter will get his synthetic germ up and running in a matter of months.

Venter's work makes the creation of murderous new life forms seem more believable. Indeed, the fear of dangerous synthetic germs has prompted the enormous, cumbersome apparatus that is the U.S. biodefense program to lurch in a new direction. If we don't know what pathogens are coming, the reasoning goes, we had better develop new ways of countering them -- not one at a time but all of them.

After the anthrax letter attacks of 2001, which began a week after 9/11 and killed five people, the biodefense establishment's immediate response was to focus on the greatest and likeliest of bioterror threats -- the unholy trinity of anthrax, smallpox and plague. In 2004, billions of dollars were set aside for Project Bioshield, which was jointly run by the departments of Homeland Security and Health and Human Services. The program aimed to produce new, safer vaccines and treatments for anthrax and smallpox, in particular.

Almost four years later, Project Bioshield has little to show for all the billions of dollars showered on it. The old "one-bug-one-drug" strategy -- designed to develop vaccines and therapies for anthrax, smallpox and plague separately -- has been abandoned in favor of "broad spectrum technology" -- drugs and methods that will, at least in theory, kill many types of germs.

Rutgers microbiologist Richard Ebright believes that the broader approach is better. As the effectiveness of the antibiotics we already have wanes, it makes sense to search for new classes of these drugs, he believes. The same goes for antivirals. Very few effective ones exist, and viral strains can develop resistance to them too, as some influenza strains have already done with Tamiflu, the newest licensed drug for treating the flu.

But new antibiotics and antivirals represent only a small part of the National Institute of Allergy and Infectious Diseases' current biodefense program, according to Ebright. The institute is assigning higher priority to radical new approaches. Chief among them is the modulation, or enhancement, of "innate immunity."

Simply put, there are two components to human immunity: innate, or general, immunity and acquired, or specific, immunity. Innate immunity involves killer cells and chemicals the body launches to fight invading germs. While the germs are held at bay, so to speak, the body develops specific antibodies to mop up the infection. In theory, enhancing innate immunity means creating ways to intensify or strengthen these immune responses so the body can fend off all infections, whether newly evolved or artificial, as soon as they appear.

This sounds good. If you could treat any new disease before the germ is even identified, then artificial bioweapons, or such naturally emerging germs as SARS, would cease to be terrorist specters.

But things are never that simple. Innate immunity is an exquisitely fine-tuned system, honed by millions of years of natural selection.

"It's not like a stereo system where you can just turn the volume up or down," says evolutionary biologist Paul W. Ewald of the University of Louisville. He points out that ratcheting up innate immunity might turn the body against itself, producing such autoimmune diseases as lupus or multiple sclerosis. Besides, if innate immunity could really wipe out all infections, why hasn't it already done so? Why did we evolve the second system of acquired, or specific, immunity at all if innate immunity could completely protect us from disease?

There's lots of research into innate-immunity enhancement but precious little data supporting it. The scientist most prominently associated with the idea is Ken Alibek, a bioweapons designer who defected from the Soviet Union in 1992 and for years peddled an immunity-boosting nostrum on his commercial website. Harry Whelan, professor of neurology and pediatrics at the Medical College of Wisconsin and lead author of a 2005 article backing this approach in the Journal of Allergy and Clinical Immunology, cites Alibek as one of the "experts" consulted for the article. But though Whelan and his coauthors reviewed a host of research projects testing how various chemical compounds boosted innate immune activity, they reported no data on how well these compounds worked in preventing disease and death.

Charles Hackett of the National Institute of Allergy and Infectious Diseases offers some evidence that limited stimulation of innate immunity can provide some advantages. He points to various vaccine adjuvants, or boosters, that prompt innate immunity to turn on acquired immunity more quickly. But that, Hackett acknowledges, isn't the same thing as enhancing general innate immunity. "Innate immunity is an area that's evolved over millenniums and is very clever," he told me. "If you want to [enhance] it, you really have to understand it better than we understand it now."

Artificial germs remain an illusion. Venter, like scientists before him, has not made a new germ. He used a genome map to re-create an old one. Similarly, despite all the interest in enhanced innate immunity, no one has been able to show that the approach works. The wreckage of Project Bioshield shows that the one-bug-one-drug approach is a failure. But by banking on the possibility of boosting innate immunity, the U.S. biodefense leviathan could well be, once again, staggering in the wrong direction.

Wendy Orent is the author of "Plague: The Mysterious Past and Terrifying Future of the World's Most Dangerous Disease."

PRESS RELEASE: The Reporters Committee for Freedom of the Press

FOR IMMEDIATE RELEASE -- Contact: Lucy Dalglish, (703) 807-2100
Reporter's Toolkit: Toni Locy contempt citation

March 10, 2008
The Reporters Committee for Freedom of the Press

Reporter's Toolkit: Toni Locy contempt citation

This memorandum is a call to arms to all American journalists from the Reporters Committee for Freedom of the Press.

Late Friday, U.S. District Court Judge Reggie Walton in Washington, D.C. issued an order holding former USA TODAY reporter Toni Locy in contempt for refusing to reveal confidential sources in the Hatfill/anthrax stories she wrote about five years ago.

Judge Walton denied Locy's request for a stay pending appeal to the DC Circuit and ordered that all fines must come out of her pocket: she will not be allowed to accept assistance in paying the fines. In a couple of weeks, the fines will accelerate to $5,000 a day and not even her own mother will be allowed to help her pay them. Her first payment is due at midnight tomorrow.

Gannett Co. has filed a motion for an emergency stay of the contempt citation with the U.S. Court of Appeals for the D.C. Circuit. A coalition of about two dozen media companies and non-profit journalism organizations has also filed an amicus brief in support of Locy.

In the meantime, the Reporters Committee for Freedom of the Press urges you to pay attention to this case. Accordingly, we have prepared this memo as background as you write stories and editorials about this outrageous situation. Below you will find useful links to copies of court pleadings and orders, helpful background on the proliferation of subpoenas in recent years in the federal courts and information about the status of proposed federal shield laws in Congress.

We'd appreciate your help in impressing upon journalists, lawmakers, and the public that this situation is untenable. As always, the Reporters Committee stands ready to help you. We can be reached at 703-807-2100.

A few bullet points for you:

    *      No judge has ever officially ordered that a reporter held in contempt may not accept reimbursement from an employer (or anyone else.) Read the Reporters Committee's list of recent contempt citations nationwide.

    *      Ms. Locy has cooperated to a degree. But she can't remember who her specific sources were, so the judge has ordered her to reveal the names of up to a dozen confidential sources she routinely relied upon in the Justice Department (many of them who were sources for stories more sensitive than this one.) Read her declaration, deposition and legal brief challenging the contempt citation.

    *      The fine (up to $5,000 a day) is punitive. If the judge wants to punish Ms. Locy, he should try her for criminal contempt and let a jury find that she willfully, intentionally and criminally forgot who her sources were for these stories. Read plaintiff Hatfill's motions for sanctions against Ms. Locy and former CBS News reporter Jim Stewart.

    *      The judge's order can be interpreted as unjustly and unfairly coercing Gannett to participate in a settlement with Hatfill. Because the media companies involved in the Wen Ho Lee case were willing to participate in a settlement with the government, Judge Walton believes he can force Gannett to the negotiating table to come up with part of the damages sought by Hatfill. Read a "White Paper" describing the threat to newsrooms of subpoenas in federal civil cases and a story describing the Wen Ho Lee settlement.

    *      Some of the sources in this case have "self-identified." We know the Justice Department leaked the information. So what we're involved in here is essentially an effort to increase the financial settlement by trying to multiply the damages by keeping track of: (1) How many sources were involved, (2) How many times each spoke, and (3) How many different "facts" they revealed.

    *      This case is a prime example of why we need a federal shield law. You can read the bills that are pending in the Senate and that passed the House, as well as a memo prepared by the Newspaper Association of America that describes them. Last week, Senators Patrick Leahy (D-Vt.) and Arlen Specter (R-Pa.) urged Senate leadership to send the bill to the floor for a vote.

    *      Journalists across the country need to cover this issue. To that end, we hope you will find the Reporters Committee's "Shields and Subpoenas" web page to be useful. You may also be curious as to how your own state handles subpoena issues; see The Reporters Committee compendium of state and federal reporters privilege laws.

    *      The Reporters Committee continues to explore ways in which we can financially support Ms. Locy without violating the judge's order. We will keep you apprised of those efforts.

The Los Angeles Times
Anthrax case judge orders ex-reporter to reveal sources or pay fines
Levies would escalate fast, and no one would be permitted to help her pay them.
By David G. Savage, Los Angeles Times Staff Writer
March 11, 2008

WASHINGTON -- Upping the ante in the fight between the press and the courts over confidential sources, a judge here has imposed daily fines on a former reporter for USA Today that could quickly bankrupt her unless she reveals all of her sources at the Justice Department and the FBI.

Toni Locy, who now teaches journalism at West Virginia University, faces a $500 daily fine beginning at midnight. Next week, the fines will go up to $1,000 per day, then to $5,000 a day the week after.

"I don't have that kind of money," she said Monday.

The judge has prohibited her friends, family and former employers from helping her pay the fines.

But lawyers for Dr. Steven J. Hatfill, the biowarfare expert who came under investigation after the mysterious wave of anthrax attacks in 2001, said Locy can spare herself by telling the full truth.

"We hope it [the judge's order] hastens the day when the media returns to exposing, rather than covering up, wrongdoing on the anthrax investigation," said Patrick P. O'Donnell, whose Washington law firm represents Hatfill in his lawsuit against the Justice Department.

In recent years, judges have taken an increasingly hard line against reporters who refuse to cooperate with prosecutors or plaintiffs who are pursuing a civil suit against the government.

In this case, Hatfill sued the Justice Department for leaking information that damaged his reputation. In August 2002, Atty. Gen. John Ashcroft called Hatfill a "person of interest" in the unsolved anthrax case, which sent reporters and camera crews in pursuit of the former government scientist.

Subsequent news stories cited unidentified persons in the FBI or Justice Department who described Hatfill's background -- including, for example, his research on bio-toxins at Ft. Detrick in Maryland.

But Hatfill was never charged in the anthrax case, despite what has been described as the largest investigation in the FBI's history.

When government officials refused to help with his lawsuit, his lawyers turned to the reporters who wrote about the case.

In May and June 2003, Locy wrote two articles about the continuing investigation of Hatfill. She described the reports as routine.

"These were just wrap-up stories. They were not scoops. I was skeptical of what the government was doing to Hatfill," Locy said. "Hatfill's lawyer told me his client was still under surveillance. And I called some people at the FBI to confirm the details."

But Locy has steadfastly refused to disclose the names of every person she talked to. She says she does not recall who supplied information for the Hatfill story.

At that, U.S. District Judge Reggie B. Walton ordered her to disclose the names of all of her confidential sources within the Justice Department.

Several other reporters have cooperated with Hatfill's lawyers.

"We have identified three of the leakers who were previously anonymous," Mark A. Grannis, an attorney for Hatfill, told Walton in January. Grannis named Roscoe C. Howard Jr., the former U.S. attorney for the District of Columbia; Daniel S. Seikaly, who headed the criminal division under Howard; and former FBI spokesman Edwin Cogswell.

Despite that revelation, Walton pressed ahead to fine Locy for refusing to cooperate. In Friday's order, he said she must "personally pay the monetary sanction. . . . The court will preclude Ms. Locy from accepting reimbursement to satisfy the monetary sanction imposed by the court."

On Monday, 29 major news organizations, including the Tribune Co., which owns the Los Angeles Times, joined with Locy's lawyer in urging an appeals court to intervene and to put Walton's order on hold. "No court has previously issued such a punitive, financially ruinous order against a journalist, merely for asserting constitutional and common law privileges," said the organization's lawyers.

It is not clear, however, whether the 1st Amendment or federal law provides protection for reporters who defy a judge's orders in such cases.

Most states shield reporters from disclosing confidential sources.

Last year, the U.S. House of Representatives passed a federal shield law for reporters, and a similar measure is pending in the Senate.

Two years ago, five news organizations, including The Times, paid to settle a somewhat similar suit brought by Wen Ho Lee, a nuclear scientist at Los Alamos National Laboratory who had been identified in news reports as the target of an espionage investigation.

He sued the U.S. Department of Energy for leaking damaging information about him, and his lawyers pressed reporters to reveal who had disclosed the information to them.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said she worried that the Hatfill case was moving in the same direction.

"I think this is verging on a shakedown of the media," she said. "The judge might want to see all the media companies pitch in and settle this case. If so, that is a frightening scenario because they didn't do anything wrong. They were just covering one of the most important stories of our time."


The Charleston Daily Mail
Tuesday March 11, 2008
WVU professor defying U.S. judges
Former USA Today reporter Toni Locy says she will not pay fines

by Jake Stump
Daily Mail Capitol Reporter

The West Virginia University professor ordered by a federal judge to pay up to $5,000 a day in fines says she's not forking over any of the money.

Starting today, Toni Locy must pay $500 a day for a week, then $1,000 a day in the second week, and $5,000 for each following day until she reveals her sources for a series of stories she'd written on the anthrax attacks in 2001.

In three weeks, Locy, a former USA Today reporter, will owe a federal court $45,500.

That's about 60 percent of her salary of $75,000 that she earns as a journalism professor at WVU.

"I'm not paying," Locy told the Daily Mail. "I can't. You can't get blood from a stone. I don't have it."

Locy's attorneys have filed a petition in the U.S. Court of Appeals for the District of Columbia Circuit seeking to block those fines, set by U.S. District Judge Reggie B. Walton. The judge is presiding over a lawsuit against the government filed by Steven J. Hatfill, a scientist who alleges that government agencies violated privacy laws when they disclosed details of criminal investigations into the anthrax attacks in 2001.

Walton had ordered Locy to reveal her sources for stories on Hatfill, whom the Department of Justice named a 'person of interest' in the anthrax attacks. Hatfill was never charged, though several media outlets reported on him being investigated by the federal government.

"I can't pinpoint who told me specific information about Steven Hatfill," Locy said. "I can remember a whole body of people who told me information on anthrax and terrorism, generally. But his (Hatfill's) story was not a scoop. It was a routine update of the status of the investigation. Therefore, it is harder for me to tell what sources gave me specific information about Steven Hatfill."

Locy's petition states that she normally discards her notes after writing her articles and has no other documents or information that could help her identify the sources.

Still, the court decided to impose "harsh sanctions upon her," reads the petition. Locy must pay the fines out of her own pocket. She is prohibited from receiving financial help from anyone, including her former employer, USA Today parent company Gannett Co. Inc.

"The judge has treated me as if I am public enemy No. 1," Locy said. "In his eyes, I committed a heinous crime.

"I informed the public about the status and the quality of the FBI's investigation into the first biological attack on U.S. soil. Even Mafia bosses and White House aides are permitted to have legal defense funds. Neither my family nor my friends can help me pay these fines, according to the judge. My students can't even hold a bake sale to help me. That, to me, seems extreme."

At least her students have a hot topic to discuss in the classroom.

Locy, 48, of Canonsburg, Pa., arrived at WVU in August. She teaches classes on media law and public affairs reporting.

"The students are very, very interested in what's happening in this case," she said. "We talk about it in class. Absolutely.

"This is a danger that faces each and every one of them who wants to be a reporter. It's a real danger."

Locy is now awaiting a decision by the U.S. Court of Appeals on her petition. If it's denied, she could go to prison after an April 3 hearing if she continues to defy the judge's orders.

"First, the Order is vastly overbroad," Locy's petition states. "The constitutional reporter's privilege long recognized in this Circuit must be sustained unless a source's identity is 'crucial' to plaintiff's case. Yet the district court has ordered Ms. Locy to reveal her many confidential sources, so plaintiff can question all of them in the vague and unlikely hope that some of them might recall and admit that, years ago, they disclosed information that appeared in two discrete news articles."

Locy is being represented by Robert C. Bernius and Leslie Paul Machado, of Nixon Peabody LLP, of Washington, D.C.

Locy has covered beats ranging from the U.S. Supreme Court to the Mafia, according to her WVU bio. She graduated from the university's School of Journalism in 1981 and began her career at the now defunct Pittsburgh Press.

She also was a reporter at the Philadelphia Daily News, Boston Globe, Washington Post, U.S. News & World Report and the Associated Press.

In 2006, she left journalism for the University of Pittsburgh's School of Law and later earned a master's degree in the studies of constitutional and criminal law.

"This is the real world we live in right now," Locy said. "This judge believes that reporters should not write about ongoing criminal investigations until someone is charged, tried and convicted. Unfortunately, that's the system in Great Britain. But it's not in the United States of America."

Contact writer Jake Stump at jakest...@dailymail.com or 348-4842.

Editor & Publisher
Media Coalition Letter Urges Shield Law Approval

By Joe Strupp

Published: March 11, 2008 5:00 PM ET

NEW YORK A group of 50 media companies and organizations, as varied as News Corporation and the Association of Alternative Newsweeklies, have penned a letter urging Congress to take up a pair of federal shield law bills and enact them as soon as possible.

The letter, signed by a group that includes several newspaper companies such as Hearst Corporation and The New York Times Company, follows last weekend's court ruling ordering a former USA Today reporter to personally pay contempt fines for refusing to reveal confidential sources.

In the letter, the signers urged “immediate and favorable” Senate floor consideration of the Free Flow of Information Act (S.2035/H.R. 2102), saying the legislation is “vitally important to the national interest and an informed citizenry,” according to the Newspaper Association of America, which facilitated the message.

Both bills have passed through committees, with the House version receiving a full House approval months ago. The Senate version could be reviewed by that governing body if congressional leaders chose to pursue it, NAA contends.

The letter follows a federal judge's decision days ago requiring Toni Locy, a former USA Today reporter and now college professor, to personally pay contempt fines for refusing to reveal her confidential sources. "In an unprecedented ruling in former Army scientist Steven Hatfill’s Privacy suit against the federal government, U.S. District Judge Reggie Walton ordered Ms. Locy to personally pay fines up to $5,000 per day until her next court appearance in early April and prohibited her former employer, or anyone, from reimbursing her," the NAA release stated.

The entire letter is posted below:


Media Coalition Supporting the Free Flow of Information Act

March 11, 2008

The Honorable Harry Reid
Office of the Majority Leader
United States Senate
Washington, DC 20515
RE: S. 2035 and H.R. 2102, the Free Flow of Information Act

Dear Majority Leader Reid:

While the calendar has turned from 2007 to 2008, the pressing need for a federal shield law remains and includes a new twist: bankrupting journalists into revealing their confidential sources.

Over the weekend, a federal judge issued a stunning decision requiring Toni Locy, a former USA Today reporter and now university professor, to personally pay contempt fines for refusing to reveal her confidential sources. In this unprecedented ruling in former Army scientist Steven Hatfill’s Privacy suit against the federal government, U.S. District Judge Reggie Walton ordered Ms. Locy to personally pay fines of $500 a day for the first week, $1,000 a day for the second week and $5,000 thereafter until her next court appearance in early April and prohibited her former employer, or anyone, from reimbursing her. All around the nation, this ruling sends a chilling message to journalists, whistleblowers and other confidential sources.

On behalf of the men and women across the country who work to bring the American people vital news and information, we, the undersigned media companies and organizations, urge the Senate to send a different message that now is the time to expeditiously pass the Free Flow of Information Act (S. 2035/ H.R. 2102), legislation that is vitally important to the national interest, an informed citizenry, and a free and vibrant press.
Protecting confidential sources through federal legislation has broad support on both sides of the aisle, in both chambers of Congress, and from state attorneys general across the nation.

Your support is essential to ensure that the American public has access to news and information about their government and the institutions that affect their daily lives.
S. 2035, which was favorably reported out of the Senate Judiciary Committee by a 15-4 vote, has been stalled in the Senate since last October.

Last week, Senate Judiciary ChairmanPatrick Leahy (D-VT) and Ranking Member Arlen Specter (R-PA) urged party leaders to schedule floor consideration on this important legislation. Chairman Leahy and Ranking Member Specter emphasized in a letter to Majority Leader Harry Reid (D-NV) and Minority Leader Mitch McConnell (R-KY) that “the bipartisan majority support in the House and in the Senate Judiciary Committee demonstrates that federal shield legislation deserves floor time.”

Last fall, a similar shield bill (H.R. 2102) passed by an overwhelming 398-21 vote. Both versions of the Free Flow of Information Act are available for immediate floor action on the Senate Business Calendar. As the strength of these votes suggests, Senators and House Members from opposite ends of the political spectrum have joined together to support the public’s right to have essential information and to protect confidential sources who are sometimes the only way the public can get this information.

The chilling order issued by the federal court in Ms. Locy’s case, unfortunately, reflects a growing trend by the federal government and civil litigants to coerce journalists to reveal their sources. More than 40 reporters and media organizations have been subpoenaed or questioned about their confidential sources, their notes, and their work product in criminal and civil cases in federal court over the last few years. It is this trend that threatens the integrity of investigative journalism and underscores the need for a federal shield law.

While the Free Flow of Information Act will protect confidential sources by establishing a uniform standard for obtaining information from reporters in federal court proceedings, it is important to note that both versions of the legislation have been amended to ensure that national security is also protected.

While many state laws provide for a more absolute privilege, both versions of this legislation are limited to a qualified privilege with exceptions for acts of terrorism or other significant harm to national security, eyewitness observations or commitment of criminal or tortious conduct by the covered person, and the prevention of death or substantial body harm.

With 49 states and the District of Columbia having either common law or codified protection for confidential sources, there is a growing (bipartisan) acknowledgement that enactment of a federal law is imperative.

In a brief filed with the United States Supreme Court, a group of 34 state attorneys general pointed out that lack of a clear standard of federal protection undermines state law. These state laws have worked successfully for many years, defining those covered by the law and the limits of that coverage. At the same time, they have protected the public’s right to information while still allowing these states to investigate crimes and protect public safety.

News organizations prefer to have their sources on the record whenever possible. However, history is replete with examples of news articles critical to the national interest that would have never been written had it not been for the protection of confidential sources.

As many of your Republican and Democratic colleagues have stressed and state legislatures have recognized, the time is now for the protection of confidential sources, and the safeguarding of the public’s right to know. This issue is too important to remain unresolved. We urge you to support immediate and favorable Senate floor consideration of the Free Flow of Information Act (S. 2035/ H.R. 2102).

If you have any questions or need additional information, please contact Paul Boyle or Laura Rychak of the Newspaper Association of America at 202-783-4697.

Thank you.
Very truly yours,

ABC News
ABC Owned Television Stations
Advance Publications, Inc.
Allbritton Communications Company
American Business Media
Media Law Resource Center
American Society of Magazine Editors
American Society of Newspaper Editors
The Associated Press
The Associated Press Managing Editors Association
Association of Alternative Newsweeklies
Association of American Publishers
Association of Capitol Reporters and Editors
Belo Corp.
Bloomberg News
Clear Channel
Coalition of Journalists for Open Government
The Copley Press, Inc.
Court TV
Cox Television
Cox Newspapers
Cox Enterprises, Inc.
Daily News, L.P
First Amendment Coalition of Arizona, Inc.
Freedom Communications, Inc.
Gannett Co., Inc.
Gray Television
Hachette Filipacchi Media U.S., Inc.
Hearst Corporation
Lee Enterprises, Inc.
Magazine Publishers
of America
The McClatchy Company
The McGraw-Hill Companies
National Association of Broadcasters
National Federation of Press Women
The National Geographic Society
National Newspaper Association
National Press Club
National Press Photographers Association
National Public Radio
NBC Universal
News Corporation
Newspaper Association of America
The Newspaper Guild-CWA
The New York Times Company
North Jersey Media Group Inc.
Online News Association
Radio-Television News Directors Association
Raycom Media, Inc.,
The Reporters Committee for Freedom of the Press
Reuters America LLC
E. W. Scripps
Society of Professional Journalists
Time Inc.
Time Warner
Tribune Company
The Walt Disney Company
The Washington Post
U.S. News & World Report
White House News Photographers Associations

Pittsburgh Tribune-Review (Editorial)
Wretched judiciary
Tuesday, March 11, 2008 

The First Amendment guarantee that government cannot abridge "freedom of speech or of the press" is one of America's most sacred protections. Yet it means nothing if journalists are afraid to do their job because federal judges like Reggie B. Walton of Washington, D.C., insist on forcing reporters to name their confidential sources.

Toni Locy, 48, is a Washington County native and West Virginia University journalism professor. As a USA Today reporter in May of 2003, she relied on unnamed sources to report that the FBI considered former Army bio-weapons expert Steven Hatfill a "person of interest" in the mailing of anthrax spores that killed five people.

Mr. Hatfill, though still under investigation, never has been charged. Now he's suing just about everyone in the Justice Department, charging his rights were violated when government officials disclosed his personal information.

Hatfill's lawyers want Locy to name her sources. Judge Walton concurs and has found Ms. Locy in contempt of court and is threatening her with draconian daily fines -- to be paid personally and not by USA Today -- until she names names. 

So, not only does Judge Walton have no respect for the First Amendment, he also believes it is leverageable by decreeing whence journalists can derive money to defend a right. It is judicial wretchedness incarnate.

Pittsburgh Tribune-Review (Opinion)
Wrong, Trib, wrong
Thursday, March 13, 2008

You are oh so wrong on your editorial defending former USA Today reporter Toni Locy and criticizing the judge who has found her in contempt for refusing to reveal her sources in the Steven Hatfill anthrax-mailing case ("Wretched judiciary," Editorial, March 11 and PghTrib.com).

For American freedom and liberty to survive, the rights of individuals, especially the right to face one's accusers in court, must trump the rights of the state and the "Fourth Estate" as well.

USA Today, Toni Locy and individuals in the Justice Department conspired to convict (ex-Army bio-weapons expert) Hatfill in the court of public opinion. That is an abuse of both government power and the power of the press.

The ability of the press to destroy an individual is second only to that of the government. 

Look at what you guys did to Richard Jewell, the security guard falsely accused of setting off a bomb at the Atlantic Olympics.

Give Mr. Hatfill his day in court. Present all the evidence and let a jury decide.

Craig B. Clemmens

The real cost of fining a reporter

By Ken Paulson
USA Today
March 12, 2008

It's the rare politician who steps up to confess crimes or corruption without a little prodding from the police or the press.

That's why the image of New York Gov. Eliot Spitzer standing at the podium Monday to acknowledge his misconduct was so disappointingly familiar. Law enforcement had busted a prostitution ring, and The New York Times had revealed that Spitzer was "Client 9."

Virtually every day in this country, in communities large and small, news organizations reveal misconduct or betrayal of the public trust by public officials. They base their reporting on their own investigations or, at times, those of law enforcement agencies.

That's why the decision by federal Judge Reggie Walton to hold former USA TODAY reporter Toni Locy in contempt of court for refusing to reveal her law enforcement sources in the anthrax-letters case is so disturbing.

 Under Walton's order, Locy is to be fined $500 a day for a week, then $1,000 a day for a week and then $5,000 a day for a week unless she discloses her sources' identities. Further, Walton has taken the unprecedented step of ordering that no one can help her pay her fines. Late Tuesday, those penalties were put on hold because a three-judge panel issued a stay in the case. But if implemented, the fines would almost certainly mean financial ruin for Locy, now a professor of journalism at West Virginia University.

Why is Walton trying to compel Locy to reveal her sources? And why is protecting her sources important enough to Locy to risk bankruptcy and jail?

The anthrax attacks

The case began just one week after the horrific attacks of 9/11. On Sept. 18, 2001, letters tainted with anthrax were sent to NBC anchor Tom Brokaw and the New York Post. About two weeks later, a photo editor at American Media Inc. died after inhaling anthrax. Then letters containing anthrax were sent to U.S. Sens. Tom Daschle and Patrick Leahy. The cases mounted. Over time, five people would die from anthrax exposure.

The Justice Department was under tremendous pressure to solve the case and to ease public anxiety, but progress was slow. On Aug. 6, 2002, Attorney General John Ashcroft publicly called Stephen Hatfill, a former researcher at the U.S. Army Medical Research Institute of Infectious Diseases, "a person of interest" in the case.

As the investigation continued without any arrests, Justice Department and FBI officials shared what they knew of the investigation with a wide range of reporters. They wanted to convey to the public that they were making progress and that the threat had been contained. Hatfill's name continued to figure prominently in those reports.

But in the end, Hatfill was never charged. Indeed, no arrests were ever made in the case, and the true culprit remains unknown. Hatfill filed suit against the government, contending that officials of the Justice Department and the FBI had violated the Privacy Act by disclosing confidential information about him.

To win damages from the government, Hatfill's lawyers are trying to compel reporters to disclose who told them about Hatfill and the investigation.

We don't use a lot of anonymous sources at USA TODAY. We believe readers will trust us less if they don't know where our information is coming from. But there are times when confidential sources are needed to expose misconduct and mishandling of public business. A whistle-blower will not come forward if he runs the risk of having his identity known. Someone who can expose corruption will stay silent if he can be outed by a federal judge.

Keeping an eye on people in power and how they do their jobs is a driving force behind American journalism. In this case, Locy is being ordered to disclose the identity of public officials sharing information with her (and in turn the public) about one of the most important criminal investigations in modern history.

The judge is not ordering disclosure of sources because national security is at stake or because someone has published leaked grand jury testimony. This is just about improving Hatfill's chances of a big payday from the government.

To the extent the government unjustly accused this man and damaged his reputation, he has every right to be compensated. But Hatfill's attorneys don't need Locy. They're ready to go to trial and already have a number of people — including the former attorney general — whom they can identify as the sources of information to reporters.

The articles in question

So what was so damaging about these articles that Locy wrote? The story published on May 29, 2003, reported that Hatfill had been hounded by the FBI. Far from implicating or damaging Hatfill, the story cited sources suggesting that evidence against him was thin and that "one of the law enforcement sources says investigators sometimes wonder whether they focused on Hatfill too soon and ignored someone who deserved more attention." A second story published in June said that the FBI had begun draining a pond near Hatfill's home to look for possible evidence, but that an early report of anthrax contamination there had been contradicted by further tests. (These stories can be seen at www.usatoday.com/news/nation/locy.htm)

That was it. No stunning disclosures or fingers pointed at Hatfill. To the contrary, Locy wrote a balanced report on where the FBI's investigation was and why it had not led to an arrest. At the time, Hatfill's representatives complimented Locy on her coverage. Five years later, she faces possible bankruptcy for those same articles. The upshot is that Toni Locy is about to lose all her life savings because of two updates on the investigation that revealed virtually no new or incriminating information. And if Locy's tips were "leaks," then the attorney general had already blown up the dam.

In its most basic terms, Locy is being punished by one arm of the government for listening to another arm of the government.

One complication in this case is that Locy can't recall precisely who gave her information. Some might be skeptical, but they shouldn't be. Many reporters write more than 100 stories a year, with a number of sources in each. These were minor stories five years ago, published inside the paper and not on the front page. And she received information in casual conversations over the course of several days; she wasn't meeting Deep Throat in a garage. Judge Walton's solution: Tell us about all your anthrax sources so they can be questioned further by Hatfill's attorneys.

News organizations throughout the country have rallied behind Locy because they recognize the stakes here. Journalism in the public interest sometimes requires reliance on government insiders with confidential information. But investigative reporting will be forever undercut if journalists are unable to protect the confidentiality of those who would seek to disclose wrongdoing.

And while some journalists are prepared to go to jail to protect these principles, it's an open question how many are willing to see their life savings disappear and families be irreparably harmed by a judge willing to take unprecedented steps to aid a plaintiff in a civil suit.

Our free press

A federal shield law is under consideration that would provide better protection for reporters, a long overdue measure that would help in instances such as this. But it's coming too late for Locy.

It inevitably sounds self-serving when members of the news media talk about their First Amendment rights. But courts have long recognized that the free-press clause was intended to serve as a check on government, and there has to be latitude for reporters to accomplish that mission.

I was reminded of that once again Saturday night at the annual Gridiron Dinner, a good-natured roast of the press and politicians held in the nation's capital.

President Bush brought down the house with a Texas-themed parody of Green Green Grass of Home, but it was his closing comment about the First Amendment that struck exactly the right note.

The president, who has had his share of battles with the news media, simply said: "You can't have democracy without a free press. Period. End of debate."

I only wish Judge Walton had been in the front row.

Ken Paulson is the editor of USA TODAY.
Posted at 12:16 AM/ET, March 12, 2008

The Fort Worth Star-Telegram
Posted on Thu, Mar. 13, 2008
A clash of less than titanic import?
Star-Telegram Staff Writer

The Justice Department still hasn't found the anthrax messenger who killed five people and sickened 17 others with poison-laced letters in 2001.

Former government researcher Steven J. Hatfill still hasn't found out which federal investigators gave reporters details about him even though he never was charged.

So why should former USA Today reporter Toni Locy have to pay thousands of dollars in fines for not revealing her unnamed sources?

A federal appeals court in Washington gave her a reprieve Tuesday, but it's probably only temporary.

An army of news organizations warns that this is the latest cold wind threatening to chill reporters' ability to expose government wrongdoing or bring whistleblowers' insider revelations to light for the public good. But I wonder whether this isn't instead another fight with bad facts likely to lead to more bad precedent.

The anthrax letters that circulated shortly after the Sept. 11, 2001, terrorists attacks understandably caused panic. In August 2002, then-Attorney General John Ashcroft identified Hatfill, who had worked at the Army Medical Research Institute in Maryland, as a "person of interest" in the investigation. Various journalists received and reported personal details about him, citing unnamed sources.

Locy wrote one long piece in 2003 about the FBI dogging Hatfill 24/7 and about the circumstantial evidence against him, citing at least five government sources. A shorter piece briefly mentioned him.

Hatfill never was charged, and in 2003 he sued the Justice Department for violating the Privacy Act, which is designed to prevent government agents from discussing individuals' records without authorization.

Unable to pinpoint who had fed information about Hatfill to the media, his lawyers subpoenaed an array of reporters. Eventually, several got their sources to waive anonymity and provided identities. But Locy and James Stewart of CBS refused to name names.

U.S. District Judge Reggie Walton has held Locy in contempt, and last week he ordered her to pay fines escalating from $500 a day to $5,000 a day out of her own pocket. He concluded that the identities go to the heart of Hatfill's ability to make his case and that because she's the only one who could provide them, she should bear the brunt of refusing to talk.

It sounds harsh and sweeping -- and has been put on hold, at least until the appeals court decides whether Walton was right.

The problem for Locy (who now teaches journalism at West Virginia University) is that the law is not on her side.

The Supreme Court has ruled that the First Amendment doesn't protect reporters from having to answer court subpoenas just as other citizens must. Most states have laws that shield reporters' sources under some circumstances, but they vary, and there's no such federal statute, though a bill is pending in Congress.

Such disputes come down to competing public interests: the value of having the best possible information by which to do justice in court cases versus the value of providing the public with insight that it might not otherwise get if sources were afraid to come forward.

Viewed from Hatfill's perspective, is it more important that he get compensated for the damage to his reputation or that flouters of privacy law get to retain their cloak of invisibility?

Viewed from Locy's, is it more vital to give Hatfill a financial bonanza or to reassure future sources that they won't be hung out to dry?

But Locy's stories arguably were unremarkable in the grand scheme. So why the big fight?

She has said that she can't remember who gave her details about Hatfill, and she doesn't want to reveal all her anthrax investigation sources, even though Walton said he would give them only to Hatfill and his lawyers. She can't refer to her notes because she tossed them.

This brouhaha strikes me as less like the case of two reporters held in contempt for using grand jury transcripts to reveal details of pro athletes' steroids use and more like the ruckus over Judith Miller, who went to jail for 85 days before admitting that Vice President Dick Cheney's top aide, Scooter Libby, told her the identify of CIA operative Valerie Plame Wilson.

Libby wasn't valiantly helping to uncover administration misdeeds -- not intentionally, anyway. He was gossiping, it seems, to undermine a critic. No public interest in free speech or good government was advanced by protecting his ... um, identity.

That case turned out badly for the news media on appeal. I'm not optimistic about this latest episode.

Linda P. Campbell is a Star-Telegram editorial writer. 817-390-7867

Posted at 12:15 AM/ET, March 14, 2008
Columnists' Opinions
'Whistle-blowing' or just blowing smoke?

Plain Talk by Al Neuharth, USA TODAY founder

It's the latest example of a free press that sometimes unintentionally is unfair.

Both the editor and editor of the editorial page of USA TODAY were understandably disturbed this week when a federal judge threw the book at a former reporter for the newspaper.

Judge Reggie Walton ordered ex-reporter Toni Locy, now a journalism professor at the University of West Virginia, to personally pay heavy fines if she doesn't reveal some anonymous sources. An appeals court temporarily stayed the order. But if implemented the escalating fines could add up to $45,000 or more in just a few weeks.

Those fines are unfair. But Locy's use of anonymous sources was unwise and unnecessary.

Locy used unnamed government officials in two stories in 2003 about the fingering of former Army medical researcher Steven Hatfill in the 2001 anthrax attacks. The stories actually were more favorable than unfavorable to Hatfill. He never was charged and has filed a lawsuit against the government.

The most disturbing thing to me about Locy's stories is that she now says she can't remember who her anonymous sources were.

The two USA TODAY executives, both longtime, highly regarded associates of mine, who denounced the judge's decision:

* Editor Ken Paulson.

* Editor of the editorial page Brian Gallagher.

Gallagher's lead editorial on Monday said "some stories won't get told if whistle-blowers fear retaliation."

Paulson echoed that in a long, half-page opinion column Wednesday saying "a whistle-blower will not come forward if he runs the risk of having his identity known."

What Paulson, Gallagher and many other otherwise good editors of good newspapers still don't get despite repeated regrettable repercussions:

Considering any anonymous sources as reliable "whistle-blowers" is a mistake. Too many of them just blow smoke.

Feedback: Other views on anonymous sources

"Whistle-blowers have revealed airline safety violations, Medicare fraud, sleeping guards in a nuclear plant, wasteful government spending and the abuse of civil liberties. Surely Al wouldn't want to keep Americans in the dark and corrupt politicians in office. At USA TODAY, we believe confidential sources should be used sparingly and for the right reasons, but not so sparingly that we let corruption go unreported."

— Ken Paulson and Brian Gallagher

"Is Al serious? I don't know any reporters who don't try to get all sources on the record. Sometimes secret sources are the only way to get information to the public."

— Lucy Dalglish, executive director, The Reporters Committee for Freedom of the Press

Seattle Post-Intelligencer
Last updated March 15, 2008 9:42 a.m.
Media shield law remains in doubt


WASHINGTON -- As federal judges order more reporters to disclose their confidential sources, news organizations are pinning their hopes on congressional passage of a media shield bill the Bush administration opposes as a threat to national security.

The legislation being considered in the Senate offers only modest shelter for reporters wanting to protect the identity of confidential sources. In many cases, it would leave the fate of journalists - and their sources - to the discretion of judges who increasingly have been willing to jail or fine them.

Out of nine high-profile cases since 2003 where journalists were ordered to reveal information, four might have turned out differently had the proposal awaiting Senate action been law.

For them and dozens of other reporters subpoenaed for confidential information or the names of those providing that information, judges generally would have to weigh the "public interest" of the media reports; that is a legal analysis many judges already do. They would retain the power to jail reporters who refuse to name sources who leak information involving national security.

If the Senate bill were law, former New York Times reporter Judith Miller still may have gone to jail for 85 days for refusing to identify the government official who breached national security rules by leaking a CIA agent's name.

But two San Francisco reporters might not have faced the prospect of 18-month jail terms for refusing to name the source for leaks of secret grand jury testimony that shed light on a steroid scandal in professional baseball.

Former USA Today reporter Toni Locy might benefit if a judge assigns enough "public interest" value to her reports about the government's investigation into the 2001 anthrax attacks. For now, she faces fines of up to $5,000 a day unless she discloses her Justice Department sources. This ruling, if embraced by other courts, could confront reporters with the prospect of bankruptcy for protecting sources.

Supporters of the Senate bill and a House-passed version cite press reports about secret CIA prisons, warrantless wiretaps of U.S. citizens and top Nixon administration officials' crimes that came to light through confidential sources.

"Reporters, editors, publishers and their lawyers cannot with assurance articulate the rules governing confidentiality because legal standards are hopelessly muddled," said Ted Olson, a former solicitor general in the Bush administration who is backing a shield law to create uniformity in the courts.

"Fearing the consequences of exposure, sources withdraw," Olson said.

The administration opposes both versions and says it would be nearly impossible to enforce laws against unauthorized releases of classified information.

The government would have to provide evidence of "significant and articulable harm" to national security - rather than a general claim - in addition to making judges weigh the public interest in protecting confidential sources.

Attorney General Michael Mukasey has said the Senate bill defines a journalist too broadly.

News organizations win about 60 percent of state and federal cases involving reporters' privilege each year, with journalists losing more often when a grand jury is involved, according to a 2007 analysis by media lawyer James Goodale.

Goodale, who represented The New York Times as its general counsel in the Pentagon Papers case, is the architect of the news media's largely successful legal strategy since a 5-4 Supreme Court decision in 1972 against a reporter ordered to testify before a grand jury.

But the fifth vote in that case, by Justice Lewis Powell, left the door open for state and lower courts to allow a reporters' privilege by considering First Amendment interests of publicizing information.

Since then, 33 states have passed shield laws and 16 others have established judicial precedents protecting reporters to some degree in state courts. Only Wyoming offers no protections for journalists.

Federal judges began offering leeway to reporters as well in civil litigation and criminal trials, so long as the information sought was not critical to the government's or plaintiff's case and was available elsewhere. At times, they protected journalists from having to disclose unpublished, nonconfidential material.

"By a stroke of genius, media attorneys were able to turn what was actually a loss for the press in 1972 into a qualified privilege for 30-plus years," said University of Arizona law professor RonNell Andersen Jones. "There is now an unsettled feeling among members of the press about whether this carefully constructed house of cards is going to be blown down."

Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized media losses in recent years. Those defeats, she says, have emboldened more lawyers to subpoena journalists.

Her survey, which got responses from 761 news organization, found 21 federal subpoenas seeking names of confidential sources in 2006 and an additional 13 seeking material other than a source's name that was received on condition of anonymity.

Those numbers are substantially higher than the 19 subpoenas since 1992 cited by the Justice Department when arguing that a federal shield bills is unnecessary. That count includes only subpoenas by department prosecutors who want reporters to disclose sources' identities to grand juries. The tally does not include civil lawsuits, cases involving special prosecutors or trial subpoenas by federal prosecutors seeking confirmation of material already published in news stories.

Some experts say the tipping point prompting some courts to rethink their prior inclinations to favor reporters was a ruling in 2003 by Richard Posner, a federal appeals court judge in Chicago. Possner said judges were wrong to give more leeway when a case did not involve grand juries and when reporters were seeking to protect nonconfidential material.

"Subpoenas should be reserved for the very rare case," said Patrick Fitzgerald, the special prosecutor who compelled scores of reporters to testify in the CIA leak case. "But there is national security information going out the door on a pretty staggering basis. You can't say there's not a lot of serious information being compromised."

Fitzgerald, a federal prosecutor who subpoenaed the telephone records of Times reporters Miller and Philip Shenon in a separate case, argues that a shield law is unneeded and potentially dangerous. He says federal prosecutors already are already bound by Justice Department guidelines to issue subpoenas only in compelling situations.

Dismissing notions that media subpoenas would dampen investigative reporting, Fitzgerald said, "Journalists have been saying the sky is falling since 1972 ... and that suddenly the stories will dry up. But I'm not seeing big blank spaces on the front page."

Media groups are not so sure.

They cite Locy's case in which she is refusing to identify a dozen Justice Department sources to lawyers for Steven Hatfill. The former Army scientist is suing the government for invasion of privacy after he came under scrutiny in the anthrax attacks. Locy says she cannot remember if her dozen sources specifically talked about Hatfill.

"If journalists can't find protection in the courts, then legislation is the only answer," said Nathan Siegel, a lawyer who represents the AP and other news organizations.

The shield legislation is supported by several media organizations, including the AP, the Newspaper Association of America, the American Society of Newspaper Editors, The New York Times Co. and The Washington Post.


On the Net:

Information on the bills, S. 2035 and H.R. 2102, can be found at http://thomas.loc.gov/

USA Today case builds momentum for reporter shield law
Writer is threatened with having to pay $5,000 per day for not revealing her sources in anthrax scare; Senate may vote soon.

By Rebecca Carr
The Austin American-Statesman
Sunday, March 16, 2008

WASHINGTON — Some members of the U.S. Senate say the prospect of former USA Today reporter Toni Locy paying $5,000 per day for not revealing her sources is spurring them to expedite legislation that would protect journalists from being compelled to reveal confidential sources in most cases.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. Arlen Specter, R-Pa., are urging party leaders to swiftly call a vote on a reporter shield bill.

"We need to protect the relationships between reporters and their sources," Leahy and Specter wrote in a recent letter to Senate Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., citing the Locy case as the reason for a vote.

The U.S. Court of Appeals for the District of Columbia intervened in the case Tuesday, temporarily blocking a lower court's ruling that would have forced Locy to personally pay as much as $5,000 per day for three weeks for failing to identify sources who named former Army scientist Steven Hatfill as a possible suspect in the 2001 anthrax attacks.

The appeals court granted Locy's request to contest a contempt citation issued last month by U.S. District Judge Reggie Walton for failing to identify all of her sources, which were sought in a lawsuit filed by Hatfill against the federal government.

Hatfill alleges that his reputation has been permanently damaged because of law enforcement leaks to the media suggesting that he played a role in the mailed anthrax attacks that killed five people.

Walton had ordered Locy to pay the fines from her own wallet, forbidding her to seek assistance from her previous employer or even her family.

"I am relieved that the court of appeals granted the stay and that the court is going to consider my legal arguments," Locy said. "That's all I want is for the court to consider my arguments."

Walton has ordered Locy and five other reporters to reveal their sources, saying there isn't a "scintilla of evidence" to suggest that the former Army bioterrorism expert had anything to do with the attacks.

The case is unusual because Locy wasn't the first journalist to write about Hatfill as a possible suspect.

Her stories also came after former Attorney General John Ashcroft had announced in 2002 that Hatfill was a "person of interest" in the attacks.

But Locy is one of six reporters whom Hatfill's lawyers subpoenaed in their quest to find out who fingered him as a possible suspect.

Four of the reporters have obtained waivers from their sources. Walton is considering whether to hold a fifth reporter in contempt.

Locy said she turned over the names of two sources who agreed to release her from her confidentiality agreement.

But she said she isn't sure if they are the same people who supplied the information because they were part of a larger pool of about a dozen law enforcement officials she interviewed about terrorism cases.

Thomas Connolly, Hatfill's lawyer, has asked that Locy reveal the names of all the sources.

Some of those sources helped Locy on sensitive stories about the hunt for al Qaeda and about the federal inquiry into the anthrax attacks that had nothing to do with Hatfill.

"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 necessarily result in my disclosure of confidential sources who had nothing whatsoever to do with the articles at issue," Locy said. "If the judge's view prevails, it will have a chilling effect on the quality and the depth of coverage of crime, whether it's white collar or street crime, in this country because there will be a fear of being sued just for doing your job."

Momentum has been building on Capitol Hill for passage of legislation that would protect reporters.

The House passed a reporter shield bill in a veto-proof 398-21 vote last fall. But the Senate version has been stalled since October because of objections from the Bush administration and Sen. Jon Kyl, R-Ariz.

The main thrust of their opposition is concern that the measure would hamper investigations into illegal leaks of classified information as well as efforts to thwart an impending terrorist attack. Another sticking point is whether bloggers should be included in the definition of a reporter.

Sen. John Cornyn, R-Texas, has been working with Sens. Dianne Feinstein, D-Calif., and Richard Durbin, D-Ill., to reach a bipartisan definition of a journalist.

"All parties are committed to fixing the definition," a Cornyn aide said. "Progress is being made."

Open government groups have started a lobbying campaign of their own.

"We are at a critical stage," said Paul Boyle, senior vice president of government affairs for the Newspaper Association of America. "We are redoubling our efforts to talk about the importance of a shield law and to press the Senate leadership to take the bill up as soon as possible."


American Journalism Review
February/March 2008 
'Hell on Heels' 

Online Exclusive » Toni Locy awaits a court decision that could have monumental consequences for her and her profession. But shaking in her shoes in the face of danger has never really been her style.

By Kevin Rector
Kevin Rector is an AJR editorial assistant.

During a newspaper career that spanned two-and-a-half decades, Toni Locy says, she was never afraid on the job.

Not when she was writing about the mob in Philadelphia, not when she was defending not-so-flattering police stories to not-so-flattered police officers in Boston, not when she was portraying the president of the United States as an intern-canoodling liar in Washington, D.C.

"I was a little uncomfortable at times, but never scared, although I was in a couple sticky situations," says Locy, the former USA Today reporter recently found in contempt of court by a federal judge for refusing to name confidential sources. "I extracted myself quickly. I didn't do anything stupid, which is probably why I was OK."

An old-school reporter who has worked at numerous publications — among them the Philadelphia Daily News, the Boston Globe, the Washington Post and USA Today — Locy, 48, has helped report important news over the years. She shook the leadership of Boston's police force in the early '90s after writing in the Globe about its inability to solve serious crime, and was part of the Washington Post team that covered the Monica Lewinsky story. She reported on 9/11 and its aftermath and the Bush administration's practices at Guantanamo. She has covered the courts throughout her career. 

Unfortunately for her, it's her own court battle that has thrust her into the news — a battle she hasn't been afraid to fight.

In February, a federal judge ruled Locy would have to pay up to $5,000 a day out of her own pocket until she identified unnamed sources in stories she wrote for USA Today in 2003 about Steven J. Hatfill, a former Army scientist who is suing the federal government for naming him a "person of interest," but never charging him, in connection with the post-9/11 anthrax attacks. Although the U.S. Court of Appeals on March 11 granted Locy a stay on the fines until her appeal of the contempt charge is heard, the case continues, and she may still face a steep financial penalty.

Newsworthy in its own right, her story has also caught attention for being what many call a compelling example for why the U.S. Senate should approve a federal shield law for journalists, which has been pending there since October. The House has passed similar legislation. The measure would protect journalists from being coerced into giving up confidential sources, and would retroactively protect Locy as well. Media organizations around the country have rallied behind her in support.

For Locy, now a professor at West Virginia University, her current situation is a reminder of her days as a reporter, when people weren't always happy with how she wrote a story or with how she responded to their complaints.

"People's instincts are to shoot the messenger," she says. "It's not uncommon for people to lash out at the person who's delivering the bad news."

For former editors and colleagues, Locy's stoic stance and stalwart refusal to name her sources isn't surprising. Throughout her career, Locy has never backed down from people railing against her.

"She's one of those reporters who loves getting in people's faces. It's one of the things that make her a great reporter," says Walter Robinson, Locy's editor at the Boston Globe. "There's no question she won't ask, there's no one she won't confront or whose face she won't get in to get an answer to a question."

"She certainly wasn't a shrinking violet," says Michael Days, a fellow reporter of Locy's at the Philadelphia Daily News and now the paper's editor. "She's extremely strong. She's very much a fighter."

Despite the prospect of facing financial ruin — something many observers fear is in Locy's future if the fines aren't overturned — Locy still conveys a thick skin and a certain tenacity. She was in the business too long, she says, to cower. She learned early in her career how to handle adversity without backing down.

"As a young reporter you were taught to be sassy and to talk back and to raise hell, and I did," Locy says. "I was taught to question authority everywhere, even in the newsroom."

Says Robinson: "If a reporter lies down for an editor, you worry about how tough she is on the reporting end. [Locy is] a handful, but the best reporters are, and they're worth it, and she certainly was."

"This probably isn't politically correct, but she's a tough broad with a heart of gold," says Days.

Locy began her journalism career at the Pittsburgh Press after graduating from the West Virginia University's School of Journalism in 1981. She worked general assignment at night. Around that time, the city's steel industry began to collapse, and Locy suddenly found herself "writing stories about five, six, seven thousand people getting fired at one time" early in her career.

The experience was profound, she says. "This part of the country has never been the same because of what happened to the steel industry. It was an economic and cultural change for the southwest part of Pennsylvania," which is where Locy grew up. "It was incredible to be writing about the transformation of an entire region and industry."

After the Press, Locy went to the Daily News in 1986, where she says she joined one of the most eclectic staffs she's ever been a part of. The freewheeling atmosphere of newsrooms like that one, Locy says, was one of her favorite aspects of the news business.

"It used to be that there were as many characters in newsrooms as there are in life," she says. "You had oddballs and interesting people, so it was never dull."

Asked if she was one of those characters, she said: "Probably."

Days' response to the same question: "Absolutely."

The Daily News' conference room has a "wall of distinguished characters" who at one time worked for the paper, says Days, and Locy's picture is up there. She was known around the newsroom for being extremely tough but also for being extremely well pulled together, he says.

"Journalists aren't the most well-dressed group on the planet, but she always was," Days says. "We called her 'Heels' because she always wore stiletto heels, even on the toughest of stories."

(It seems the nickname followed her: Robinson says Locy was called "Hell on Heels" in the Globe newsroom. Beverley Lumpkin, a former ABC News reporter who covered federal courts in Washington, D.C., alongside Locy in the mid- to late-'90s, remembers her amazement at Locy's ability to traverse the granite halls of the courthouse all day long in high heels.)

Fashion aside, though, it was Locy's style as a reporter — and her presence in the newsroom — that people most remember. "In any room full of 100-watt bulbs, she's 150 watts," says Robinson. "Great presence, great personality. She sort of made up in her own way for the fact that the newsroom no longer had clattering typewriters."

According to Lumpkin, who had covered federal courts in Washington for eight years when Locy came onto the beat for the Washington Post in 1994, Locy was a reporter who immediately left a mark.

"When you're a reporter you can tell when somebody else knows what's going on, you can tell when someone's read the entire brief instead of the summary or when somebody's been talking to people you know — or worse, someone you don't know. So it doesn't take long for reporters to size each other up and decide who's the potential competition," Lumpkin says.

Locy was clearly competition, Lumpkin says.

"She's a straight-shooter, thorough and doesn't take chances," said Joan Biskupic, a fellow courts reporter who first met Locy at the Washington Post in the mid-'90s and later worked alongside her at USA Today, in an e-mail interview. "Overall, she was very good with documents, a thorough reader. She wasn't looking for shortcuts. She has a natural sense of fairness and automatically gave both sides of any dispute a fair shake."

"Toni was all over the courthouse. It was totally her turf," says Lumpkin. "She knew every judge and every clerk and she always knew what was going on."

Locy says she was just doing her job — and having fun: "When you cover a good trial, there's nothing else like it. It's so much fun," she says.

But aside from having fun, Locy was also networking. As she moved from the Post to U.S. News & World Report in 1999 and then to USA Today in 2000, she continued to make connections with high-ranking government officials, many of whom spoke to her confidentially. Such connections were necessary for her beat, and they helped her become a top reporter.

"Inferentially, I think [sources around the courthouse] held her in pretty high regard, just for the fact that she would get stuff out of them — stuff no one else could get," says Lumpkin.

Then 9/11 happened.

"I just remember we were working at least six days a week, 10 to 12 hours a day or more, and we went from trying to figure out who the hijackers were right into the anthrax attacks, and I think we went through the rest of that year and into 2002 before any of us thought to catch our breath," Locy says. "The stakes were so high for everyone — for the FBI, for government, for journalism. We were chasing every little snippet of information."

It was during that whirlwind time that Locy wrote the two stories involving Hatfill — the stories that drew her court subpoena and stories that do not stick out in her mind at all, she says.

"I wrote thousands of stories in my career and these two were routine — painfully routine. They were not scoops, they were not on the front page, and as a result they don't stand out in my memory at all," Locy says. "Everywhere I worked I usually was one of the most productive members of the staff, so I cranked it out. I did. So I apologize that I can't remember every single line in every single story I wrote, but I wrote a lot of stories."

Locy says she can't remember which FBI or Justice Department source told her about Hatfill because she regularly spoke to more than a dozen such sources about anthrax and other terrorism issues, often confidentially. She refuses to name all of them because of something one of them told her, she says.

As she moved on in her career, leaving USA Today and going to the Associated Press in 2005, Locy continued to write a lot of stories. But after two decades as a reporter, she started itching to put down her notepad. She never wanted to be "an old lady reporter," she says, and the business had changed for her.

She had wanted to be a reporter since she was 8 years old in 1968, watching Walter Cronkite announce the news and seeing student protests of Vietnam. "I grew up at a time [when] there was so much political turbulence, and I wanted to be a reporter," she says. "I was struck by everything that was going on in the country at the time, even though I was a little kid."

Some 40-odd years later though, she found herself in a different situation. "You start out as a kid and you think, 'Am I ever going to get this?' And then you wake up one day and you say, 'I actually do know what I'm doing, and nobody wants to hear it, so it's time to move on and do something else.'

"I promised myself that when journalism stopped being fun I would get out, and it stopped being fun," Locy says. "I wanted to do something different while I was still young enough to do something different and enjoy it."

Locy says she has always had a great appreciation for the law — an irony that she doesn't miss, saying "I love the law, which is interesting because I'm caught up in this legal mess" — and in thinking about getting out of journalism, she was immediately drawn to the prospect of legal studies. She'd also thought about teaching, but needed a master's degree to do so.

In 2006, she plotted her next move. She left the AP to attend the University of Pittsburgh's School of Law, where she earned a master's degree in constitutional and criminal law in 2007. Although legal studies are notoriously arduous, Locy said her time at the law school was relaxing compared to her years as a reporter.

"It was nice to be able to sit back and read and think about cases," she says, adding that it was sometimes a "weird experience" because she had covered and reported on many of the cases that she and her law school peers were studying.

After finishing her master's degree, Locy started as a professor at West Virginia University, her alma mater, where she currently serves as the Schott Chair of Journalism. It was a transition that Locy accredits to perfect timing: "For once in my life the planets lined up."

In her new role, Locy teaches media law and public affairs reporting. She says she still reverts back to her days as a reporter to provide real-life examples of things that occur to journalists in the field.

"Something will pop into my head, I'll remember something and I'll try to use that as an example so I can bring it alive for them," Locy says. "I don't want to just stand up there and be a professor who tells war stories, but I'm trying to make it relevant to what I'm teaching them, so I use stories I've written or situations I've been in as a reporter to illustrate the point I'm trying to make."

Her current plight is one of those illustrative experiences. Locy says she has brought it up with her students as an example of what can happen to a reporter in the court system, and they are worried for her. At the same time, though, Locy says she is worried for them, the future journalists of the world. She worries her case will stand as a precedent for future reporters.

"I've told my students, 'If you really do want to be a reporter, and if you want to cover courts and law enforcement and the kinds of things I did, you need to have a long, serious talk with yourself about whether you are willing to work in the environment that we live in right now,'" Locy says. "'It is very, very difficult right now to be that kind of reporter, and you have to make a decision whether you really want to do that kind of reporting and to take the risks personally that you apparently have to take now.'" 

The Philadelphia Inquirer
Posted on Sun, Mar. 23, 2008

The Point: Media - and public - need strong shield law

By Mark Bowden
Inquirer Currents Columnist

Any reporter who has ever promised anonymity to a source ought to be paying close attention right now to what is happening to Toni Loci, a former staff writer at the Philadelphia Daily News.

Loci is facing financial ruin for defying U.S. District Judge Reggie B. Walton, who is presiding over a civil lawsuit against the government by Steven Hatfill, the man Attorney General John Ashcroft named as a "person of interest" in the still-open anthrax-mailing case of 2001. The anthrax letters killed five people and sickened 17, sending the nation into a panic over a possible terrorist chemical attack.

The anthrax mailer has not been caught. Hatfill, a virologist and biomedical research scientist, has always asserted his innocence and has never been charged with the crime, but his reputation and career have been destroyed. FBI and Justice Department officials repeatedly identified him off the record to newspaper reporters as the prime suspect. One of those reporters was Loci. In two stories she wrote for USA Today in 2003 naming Hatfill as the primary suspect, she mentioned first four unidentified law-enforcement sources, and then three. Walton wants to know who they were.

My heart goes out to Loci. I was in a similar position once myself. I was fined (along with Philadelphia Tribune columnist Linn Washington) a total of $60,000 for refusing to answer questions during a criminal trial here in 2000. In my case, The Inquirer paid the fine. In Loci's, the judge has fined her personally up to $5,000 a day for refusing to name names, and he has forbidden anyone from paying the fine for her. The order has been appealed.

I am hoping Loci wins on appeal, for her own sake but also for every working reporter in America, myself included. There are two important lessons to take from her predicament, one for journalists and the other for society at large. Reporters should be aware that promising a source anonymity is a big deal, carries major risks, and ought not to be done lightly. Society needs to learn that if it wants journalism that functions as a watchdog on power and plays a relevant independent role in our democracy, then reporters need strong protection in court.

A big part of this problem is journalism's fault. In Loci's case, the use of unnamed sources in her stories was unnecessary and had the effect of both further staining Hatfill's reputation and inviting her current troubles. Neither of the stories she wrote was remarkable or exclusive.

The first reported in essence that the FBI was tailing Hatfill around the clock; the second that agents searching for evidence were draining a pond near his former home in Frederick, Md. The same stories were covered by many reporters from many news outlets at the same time. In both of Loci's accounts, the facts alone told the story. It was newsworthy that the government was taking these dramatic steps, and particularly in the context of Ashcroft's statement, it was abundantly clear that Hatfill was suspected of the mailings and remained under aggressive federal scrutiny.

Loci went further. In the first story she cited "four law enforcement sources" of her own who told her that "many" investigators but "not all" involved in the case believed Hatfill was "behind the mail attacks." Two of her unnamed sources told her that the evidence was "largely circumstantial." This suggested that while most investigators considered Hatfill their man, some felt they still lacked enough evidence to charge him. The second story cited "investigators" who confirmed that they were interested in the pond because it was near Hatfill's home and they suspected he might have discarded evidence in it.

These off-the-record additions to the stories added little beyond advertising Loci's access to inside information. It is the sort of thing reporters do all the time. It shows them to be diligent and hardworking, and to have well-placed sources, but beyond that does not significantly advance the story. Given the power of courts to coerce reporters to testify, announcing the input of unnamed official leakers is like waving a red flag.

That said, Hatfill's legitimate interest in finding out who was trashing him in the Justice Department is not as important as Loci's need to protect her sources. This is one of the places in our democracy where two important priorities collide. Judges have a legitimate interest in finding the truth, while society benefits greatly from an unfettered press. If Watson's unprecedented penalty against Loci is upheld, Hatfill may come closer to collecting well-deserved damages, but at an absurdly high cost. The blow to journalism might be the worst in U.S. history.

Great reporting relies on confidential sources. To note just of a few of the most dramatic modern examples: David Halberstam's critical reporting from Vietnam; publication of The Pentagon Papers; Woodward and Bernstein's revelations about the Watergate break-in; details of the Iran-Contra scandal; the existence of secret CIA interrogation centers; and the recent revelations of extralegal spying by the National Security Agency. In my own experience, nearly every major story I have written, including the books Black Hawk Down and Killing Pablo, has involved promising sources anonymity, and could not have been written without their help. Much of the material in both books remains officially classified.

Reporters have long faced the prospect of imprisonment for protecting sources, but few would hazard everything they own. Without some legal protections, and without the financial protection of a newspaper, magazine or network, little investigative reporting would get done.

Watson has proved his point. He can bring Loci to her knees, and he can send a chilling warning to every reporter in America. Stripped of all protection from judicial abuse, they can be deterred from practicing their craft, and our democracy will be much poorer for it. Journalists should never use confidential sources lightly, but unless we are willing to abandon the practice of vibrant journalism, judges should not have such a free hand.

In many places throughout this country, they do. "Shield" laws - laws that protect reporters from having to reveal the sources of information they gather in their reporting - differ from state to state. It would be nice to have a uniform federal standard, and there are several bills currently before Congress that would accomplish that. Given the legitimate interests of courts, there ought, of course, to be some limits on reporters' rights. The controlling precedent in this debate, the 1972 Supreme Court case Branzburg v. Hayes, ruled against the idea of reporters' privilege, but influential dissents to that ruling had the opposite effect: they established two important ground rules for questioning reporters that most courts have followed ever since.

Before compelling a reporter to testify, the information sought (1) must be critically important to the case, and (2) must be unobtainable anywhere else. Neither standard applies in Loci's case, nor did it apply to mine or to most of the cases where reporters have been held in contempt. The slander of Hatfill was made publicly, and at least some of the sources of the statements about him from the Justice Department already have identified themselves or been revealed.

Steven Hatfill will probably get his payday, and may well deserve it - but not at the cost of sacrificing a free press.

Mark Bowden is a former staff writer at The Inquirer and is now national correspondent for the Atlantic Monthly. Contact him at mbowden@phillynews.com.

The Chicago Tribune (Opinion)
The news media vs. the innocent

Steve Chapman
March 27, 2008

Years ago, Ray Donovan, Ronald Reagan's labor secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, "Which office do I go to to get my reputation back?"

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the Sept. 11, 2001, attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died.

In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the Army, a "person of interest." Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, The New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have "destroyed his life" even though "there's not a scintilla of evidence to suggest Dr. Hatfill had anything to do with" the anthrax attacks.

Years later, Hatfill is still awaiting vindication. Last week, he inched closer when the judge ordered Toni Locy, a former USA Today reporter, to disclose her sources about Hatfill—or face fines of up to $5,000 a day for contempt. A host of news organizations, including Tribune Co., filed a friend-of-the-court brief urging that she be spared from providing evidence.

Here we find ourselves on depressingly familiar ground. Back in 2005, Times reporter Judith Miller refused to say who told her that Valerie Plame was a CIA agent. She went to jail for contempt before finally acknowledging it was vice presidential aide Lewis "Scooter" Libby.

Five reporters didn't want to reveal their sources about Los Alamos nuclear scientist Wen Ho Lee, who was tarred for alleged espionage but convicted only of a single minor count of mishandling classified data. Their demands got nowhere, forcing their employers to reach a costly settlement with Lee.

The news media keep losing these cases, yet journalists and their attorneys refuse to recognize reality. They continue to insist on their right to keep evidence of wrongdoing and lawbreaking from the courts, no matter the collateral damage.

Locy reported on the suspicions about Hatfill based on interviews with confidential sources in the Justice Department and the FBI, who may have violated federal law in leaking information about him. Since she discarded her notes and says she can't remember which of 10 people told her about Hatfill, the judge says she has to turn over the names of all 10 so Hatfill's lawyers can question them.

Judge Walton found that the identity of her sources "goes to the heart" of his case, and that there is no other way he can get the information. Without Locy's testimony, the damage done to Hatfill would go unpunished and unrepaired.

The Reporters Committee for Freedom of the Press and its allies also think the $5,000-a-day fine, which the judge says she must pay herself, is outrageously excessive. But the point of such fines is not to accommodate the financial resources of the person who is defying the law—it's to force her to comply, in the interests of justice.

Justice should not be at odds with the job of the news media. But in this instance, it is. University of Chicago law professor Geoffrey Stone, one of the premier experts on the 1st Amendment, thinks the press has overstepped. "It's important to remember here," he told me, "that these sources were not blowing the whistle on government wrongdoing but were allegedly doing something wrong in revealing the information about the identity of the suspect."

Journalists and citizens may disagree on the proper role of the news media in a free society. But when the press finds itself protecting the guilty at the expense of the innocent, it's made a wrong turn somewhere.

Steve Chapman is a member of the Tribune's editorial board. E-mail: schapman@tribune.com

The San Francisco Chronicle (Opinion)
Federal shield law protects the public interest

Peter Scheer
Thursday, March 27, 2008

Just when you thought it was safe again for journalists to promise anonymity to confidential sources, federal judicial power is being applied with renewed enthusiasm to force reporters to out their sources.

A federal grand jury in Alexandria, Va., has subpoenaed New York Times reporter James Risen to testify about his confidential sources for a chapter in his book, "State of War," dealing with the CIA's efforts to infiltrate Iran's nuclear program during the Clinton and Bush administrations. Whether the grand jury is investigating Risen's source or Risen himself (or both) is not known.

And former USA Today reporter Tony Locy has been ordered to pay crippling fines - starting at $500 a day and escalating to $5,000 a day - to force her to comply with an order to disclose confidential sources for articles she wrote in 2001 about Steven Hatfill, a bioterrorism expert whom federal investigators suspected was behind the anthrax mailings that killed five people.

Hatfill, who has never been charged for those crimes, sued the federal government, claiming that the Justice Department and FBI, by leaking to the press information about their suspicions of him, violated his rights under the federal Privacy Act. The case is before federal judge Reggie Walton, who also presided over the prosecution of Lewis "Scooter" Libby.

Judge Walton is nothing if not relentless in his pursuit of reporters' testimony. His preferred strategy is to lean on reporters to lean on their sources to sign "waivers" of confidentiality. Despite serious doubts about the voluntariness of waivers - sources have little choice but to sign, because refusal could lead to demotion or dismissal - Judge Walton used this tactic in the Libby case to force some of the most prominent journalists in Washington to testify about conversations that they had promised never to reveal.

(Chronicle staff writers Lance Williams and Mark Fainaru-Wada faced a threat of prison time when they refused to divulge where they obtained confidential grand jury transcripts in the BALCO steroids case. Federal prosecutors later dropped their threats when they learned independently how the material had been leaked.)

In the Hatfill case, the judge has already succeeded in compelling Newsweek's Michael Isikoff and Daniel Klaidman, ABC's Brian Ross, and the Washington Post's Allan Lengel to disclose their sources for reporting about Hatfill. Although Locy, like the other reporters, has identified some of her sources, she says she can't remember whether she received information from additional sources.

Judge Walton, it would appear, doesn't believe Locy - hence the punitive fines. The judge has even forbidden USA Today or Locy's family and friends from helping to pay the fines, the better to refresh Locy's recollection about her sources. (The unorthodox contempt sanctions have been stayed pending Locy's appeal to the federal court of appeals in Washington.)

These cases have renewed debate over the need for a federal "shield law" that would extend to federal judicial proceedings protection for reporters' confidential sources that is already given, to one extent or another, by California and most states. Hatfill's lawyer, Mark Grannis, writing in the Wall Street Journal, argues against a shield law on grounds that it would deprive the judicial system of truthful evidence, leave victims of government misbehavior without a remedy for their injuries, and indiscriminately protect both good confidential sources and bad.

The defect in Grannis' critique is that it misconceives the purpose of a shield law. The purpose is not to do justice to Grannis' client or other litigants. It is to serve the public's interest in learning about the actions of government and other powerful institutions by preserving journalists' access to sources who would not reveal what they know unless given credible assurances of confidentiality. Without protection for these sources, the public would be denied most news stories about national security matters, organized crime and misconduct in the upper echelons of government and corporations.

For most Americans, both liberals and conservatives, that is just too high a price to pay.

Will a shield law cause unfairness to some litigants like Hatfill? Regrettably, yes, in the same way that similar testimonial privileges for attorneys, doctors, priests and psychotherapists cause unfairness. These well-established privileges exclude relevant, truthful evidence from court proceedings. They do so in order to protect the overriding public interest in candid communications with law clients, medical patients, penitents and people needing help for emotional problems.

Moreover, testimonial privileges - to have their intended effect - must be applied categorically, without regard to the facts of a particular case. If Grannis invokes the attorney-client privilege to withhold confidential statements that Hatfill made to him, the attorney needn't prove to a judge that Hatfill is an honorable person, or that his interest in confidentiality outweighs other litigants' interest in access to his statements. Categorical application of the attorney-client privilege is essential to give future clients assurance that they can speak confidentially to their lawyer.

By the same token, protection for a reporter's confidential source must be applied categorically. The point is to give future whistle-blowers assurance that a reporter's promise of confidentiality will, in fact, be honored by the judicial system. For that reason, it is irrelevant whether Locy's confidential source is a saint or power-hungry bureaucrat intent on ruining Hatfill, or whether Locy herself is a model journalist or too trusting of her government sources.

Every subpoena to a reporter further undercuts the people's right to know what government is doing in their name. It's time for Congress to end this erosion in access by enacting a credible shield law.

Peter Scheer, a lawyer and journalist, is executive director of the California First Amendment Coalition. www.cfac.org. 

Fox News
FBI Focusing on 'About Four' Suspects in 2001 Anthrax Attacks

Friday, March 28, 2008
By Catherine Herridge and Ian McCaleb

WASHINGTON —  The FBI has narrowed its focus to "about four" suspects in the 6 1/2-year investigation of the deadly anthrax attacks of 2001, and at least three of those suspects are linked to the Army’s bioweapons research facility at Fort Detrick in Maryland, FOX News has learned.

Among the pool of suspects are three scientists — a former deputy commander, a leading anthrax scientist and a microbiologist — linked to the research facility, known as USAMRIID.

The FBI has collected writing samples from the three scientists in an effort to match them to the writer of anthrax-laced letters that were mailed to two U.S. senators and at least two news outlets in the fall of 2001, a law enforcement source confirmed.

The anthrax attacks began shortly after the Sept. 11, 2001, terror attacks, further alarming a nation already reeling from the deaths of 3,000 Americans. Five people were killed and more than a dozen others were infected by the deadly spores in the fall of 2001.

A leading theory is that the anthrax was stolen from Fort Detrick and then sealed inside the letters. A law enforcement source said the FBI is essentially engaged in a process of elimination.

Much of the early public focus fell on a Fort Detrick scientist named Steven Hatfill, who is suing federal authorities for identifying him as a person of interest. Now the FBI is focusing on other scientists at the facility.

"Fort Detrick is run by the United States Army. It's the most secure biological warfare research center in the United States," a bioterrorism expert told FOX News.

Asked to comment on the likelihood that the anthrax originated at the facility, the expert said:

"It's not suprising, except that it would underscore that there was serious security deficiencies that existed at one time at Fort Detrick — the ability of researchers to smuggle out some type of very sophisticated anthrax weapon and in some quantity. And, nevertheless, it was possible."

In December 2001, an Army commander tried to dispel the possibility of a connection to Fort Detrick by taking the media on a rare tour of the base. The commander said the Army used only liquid anthrax, not powder, for its experiments.

"I would say that it does not come from our stocks, because we do not use that dry material," Maj. Gen. John Parker said. The letters that were mailed to the media and Sens. Tom Daschle and Patrick Leahy all contained powdered anthrax.

But in an e-mail obtained by FOX News, scientists at Fort Detrick openly discussed how the anthrax powder they were asked to analyze after the attacks was nearly identical to that made by one of their colleagues.

"Then he said he had to look at a lot of samples that the FBI had prepared ... to duplicate the letter material," the e-mail reads. "Then the bombshell. He said that the best duplication of the material was the stuff made by [name redacted]. He said that it was almost exactly the same … his knees got shaky and he sputtered, 'But I told the General we didn't make spore powder!'"

Asked for comment, an Army spokeswoman referred all calls to the FBI. The FBI would not comment about the pool of suspects, but a spokeswoman said the investigation clearly remains a priority.

The Austin Statesman
The Justice Department fights PR battle over media shield bill

By Rebecca Carr 
Monday, April 7, 2008, 09:59 AM

The Justice Department is mounting an aggressive offense against legislative attempts to create a federal law that would protect the identity of journalists’ confidential sources in most cases.

This comes as former USA Today reporter Toni Locy faces financial ruin because U.S. District Judge Reggie B. Walton ordered her in contempt of court and to pay fines of up to $5,000 per day for refusing to reveal all of her law enforcement sources who fingered Steven J. Hatfill as a suspect in the 2001 anthrax attacks.

Attorney General Michael B. Mukasey strongly opposes a media shield bill sponsored by Sens. Arlen Specter, R-Pa., Christopher Dodd, D-Conn., and Charles Schumer, D-N.Y., that cleared the Senate Judiciary Committee last year. The House passed a similar measure by a wide margin last year.

The Justice Department has launched its own web page to undermine the growing pressure on Capitol Hill to bring the Senate measure to the floor. Locy’s plight has only generated more buzz for the bill, according to top Democratic and Republican aides. A vote could happen within a few weeks.

The Justice Department web site features testimony, letters and legal explanations for the opposition. The main thrust of the opposition is that the bill would endanger national security.

Now the American Civil Liberties Union is redoubling its effort to pass the bill.

The shield bill is on the verge of passage with strong bipartisan support in both chambers, said Caroline Fredrickson, legislative director of the ACLU’s Washington legislative office.

“The administration’s reliance on  fear mongering to try to quash this admirable legislative effort is just one more example of an executive branch that cares more about protecting itself from embarrassment than preserving, protecting and defending the Constitution,” Fredrickson said.

“A free press has a duty to fulfill—informing the public about its government—and that principle resides at the very heart of a vibrant democracy,” Fredrickson said.

The need for a comprehensive federal reporters’ shield law has grown increasingly apparent in the last several years, Fredrickson said.

The administration has never been a fan of judicial oversight or enforcing the statutes it does not agree with, Fredrickson said.

“But when it comes to freedom of the press there is no middle ground,” Fredrickson said. “The Bill of Rights is not a starting point for negotiations. The public’s right to know is not up for debate and cannot be conditioned by the government.”

McCain, Obama back law shielding reporters

By David Jackson, USA TODAY
April 14, 2008

WASHINGTON — Sen. John McCain, the presumptive Republican presidential nominee, endorsed a federal law Monday to help reporters protect confidential sources, but he did so with reservations.

McCain told a group of newspaper executives at the annual meeting of the Associated Press that when it comes to anonymous sources, he trusts that "you will not do more harm than good, whether it comes to the security of the nation or the reputation of good people."

The proposed shield law is, "frankly, a license to do harm, perhaps serious harm," he said. "But it also is a license to do good; to disclose injustice and unlawfulness and inequities; and to encourage their swift correction."

Democratic presidential candidate Barack Obama, who spoke later at an AP luncheon, has endorsed the shield law to protect reporters but told editors that courts should decide whether a confidential source deserves protection. "This raises, I think, a broader issue of civil liberties and our various freedoms, at a time when we have real enemies and real conflict," he said.

Democratic presidential candidate Hillary Rodham Clinton, who also supports the law, is scheduled to speak at the event today.

McCain's backing is in contrast to Republicans in the Bush administration. In a letter to congressional leaders this month, Attorney General Michael Mukasey and National Intelligence Director Mike McConnell said the proposed law has "potentially dramatic consequences for our ability to protect the national security."

The AP meetings are part of a conference co-sponsored by the American Society of Newspaper Editors. The group is lobbying in favor of the Free Flow of Information Act, saying the legislation includes protections for national security and law enforcement.

McCain expressed some misgivings. He said The New York Times' decision to publicize the Bush administration's warrantless wiretap program "came too close" to the line on national security. He also noted that news media scrutiny exposed abuses at the Abu Ghraib prison in Iraq.

In discussing the need to balance security and civil liberties, Obama said it may be necessary "to ramp up surveillance in order to prevent a terrorist attack." He added there also needs to be "somebody watching over the administration" to ensure civil liberties are not abused.

The debate occurs as lawyers for former Army scientist Steven Hatfill try to force former USA TODAY reporter Toni Locy to reveal the identities of government officials who identified Hatfill as a suspect in the 2001 anthrax attacks. A federal judge has held Locy in contempt and ordered her to pay up to $5,000 per day until she reveals her sources. Locy is appealing the order.

Source Hygiene
If reporters practiced better "source hygiene," maybe they'd face fewer subpoenas.

By Jack Shafer
Posted Thursday, April 17, 2008, at 7:00 PM ET

Subpoena-defying reporters who dare judges to send them to prison are routinely portrayed in the press as First Amendment martyrs. This should come as no surprise. The guys writing the lionizing stories generally share their subjects' values. What else are they going to write, "Send the bum to jail"?

Although I have great admiration for some journalists who have held themselves above the law and committed acts of civil disobedience that have earned them a ticket to jail, not all subpoenas are created equal. And not every source arrangement outside of "on the record" should require conscionable reporters to go directly to jail if slapped with a subpoena.

Some reporters invite subpoenas by practicing what I call "poor source hygiene," granting confidentiality too liberally to sources who don't deserve it. Norman Pearlstine, former editor-in-chief of Time Inc., addresses this topic in his 2007 book about the Valerie Plame investigation, Off the Record: The Press, the Government, and the War Over Anonymous Sources. As the top editorial guy at Time Inc., Pearlstine was the one who gave the court notes that revealed Time magazine reporter Matthew Cooper's confidential sources. 

Pearlstine writes that at the beginning of the case, he assumed that "long-standing rules for the press when dealing with sources and the public" existed. But no!

    In truth, there are no rules, and there is no common understanding of what qualifies as proper behavior. Ask a group of reporters or editors to tell you the difference between "confidential" and "anonymous," or between "not for attribution," "background," "deep background," and "off the record," and you will get a lot of different answers. As screenwriter William Goldman once said of Hollywood, "Nobody knows anything."
After spending millions from the Time Inc. kitty to quash the Cooper subpoena, Pearlstine ultimately decided that Karl Rove had not "demanded the confidentiality that Matt had unilaterally and, therefore, improperly granted him. By my reasoning, Rove was an anonymous source at best."

Pearlstine's view put him in opposition to Cooper, Cooper's bureau chief, Cooper's managing editor, and Time's in-house First Amendment lawyer, all of whom "viewed Rove as a confidential source."

(Cooper took a very different view of the whole episode in this 2007 Portfolio feature.)

I dredge up the Plame case not to second-guess anybody at this late date but to illustrate the haziness of many of the sourcing relationships reporters enter. After the cows escaped, Pearlstine closed the barn door with editorial guidelines for Time Inc. that weren't completed until shortly after he left the company in 2006. Both Pearlstine's book and his personal Web site contain editorial guidelines based on the ones produced for Time Inc.

Pearlstine writes that the ground rules between reporters and sources should be explicitly stated or understood. Reporters should exercise self-discipline by getting sources on the record as often as possible. A promise to withhold a source's name is not automatically the same thing as a promise of confidentiality, which represents a higher commitment from the reporter and his publication. 

Confidentiality should generally be doled out sparingly, he writes, "reserved for sources who are providing information that is important and in the public interest, and who, by doing so, are risking their lives, jobs, or reputations" and should not be granted without pre-publication approval of the editor-in-chief. Pearlstine's guidelines continue:

    Reporters and editors should understand that they have no legal or moral right to promise confidentiality to a source beyond what is recognized in the law. … If a journalist expressly promises more than the law allows, the promise is legally ineffective, like any other promise that is contrary to public policy. A journalist who knowingly deceives a source by promising more than the law authorizes should be subject to professional discipline and civil liability to the source. 
Had former USA Today reporter Toni Locy practiced better source hygiene, would she be in the fix she is today? Locy faces contempt charges for refusing to surrender to a federal court confidential sources who spoke to her about the 2001 anthrax attacks and Steven J. Hatfill. Hatfill is suing the government under the Privacy Act, saying that the anonymous FBI and Department of Justice sources damaged him with hundreds of leaks to the press and that his only path to justice is access to Locy's sources.

I don't want to be Locy's jailer, but the press owes Hatfill and its readers explanations for its coverage in the anthrax stories. Pearlstine's rule that confidentiality should generally be granted to sources who provide important information at some personal risk wasn't followed. Locy and other reporters published anonymous government leaks that have damaged the life of a seemingly innocent man. Hatfill's lawyers insist—with some justification—that in the Hatfill case confidentiality arrangements have helped to hide government wrongdoing, not expose it. (A similar observation can be made of press conduct in the Wen Ho Lee case.)

Editorials about Locy's legal dilemma tend to follow the absolutist view about confidential sources. For example, the March 24 Washington Post editorializes, "Reporters rely on regular confidential sources to burrow into their beats; if they can be arbitrarily required to identify all their sources, it's likely they won't have any." The editorial makes no mention of how the press allowed itself to be used.

Confidentiality isn't so sacred to the press that leading news organizations and reporters won't jettison those revered sources when it suits them. Press scholar Stephen Bates writes (PDF) that after Oliver North blamed others for his own leak in 1987, Newsweek identified him as the source. After a source on a Russian money-laundering story misled the New York Times in 2000, the paper dropped a dime on him. The Boston Globe put off-the-record comments made by President Jimmy Carter on the record after he covered some of the topics in his memoir. And after William Casey died, Bob Woodward outed him as a source. More recently, Woodward exposed Mark Felt as Deep Throat after Vanity Fair got the story through Felt's family.

Both the Post editorial and the Reporters Committee for Freedom of the Press conclude that the fix for the Locy mess is the pending federal shield law. No doubt if a storm of asteroids was falling toward Earth, the Post and the RCFP would use the occasion to call for passage of a shield law. Self-scrutiny has never been the press corps' leading virtue, and its ability to imagine itself the victim is nonpareil.

The Fort Mill Times
Supreme Court hears arguments in anthrax death lawsuit
(Published May 05, 2008)

TALLAHASSEE, Fla. — The federal government and a private laboratory have no duty under state law to protect the public from lethal materials, their lawyers argued Monday in a lawsuit over the anthrax death of a supermarket tabloid staffer in 2001.

The Florida Supreme Court will rule on that issue at the request of a federal appeals court, which then will decide whether the case can go to trial. 

Robert Stevens, a photo editor for publisher American Media Inc., died Oct. 5, 2001, after being exposed to anthrax in one of a series of attacks that shook the nation and killed four others. The deadly bacteria was in an envelope mailed to the Boca Raton offices of American Media, which publishes the National Enquirer, Sun and Globe newspapers.

His wife, Maureen Stevens, sued the government and Battelle Memorial Institute, a research company in Columbus, Ohio, alleging they were also the source of the anthrax strain that killed her husband.

The government and Battelle are appealing a federal trial judge's ruling that state law requires them to protect the public against anthrax harm regardless of how it is released.

Prior court rulings say duty should apply only if there's a relationship between an entity possessing an ultra-hazardous substance and the perpetrator of a crime or a victim, not to all members of the public, said lawyers for the government and Battelle.

Justice Department attorney Jeffrey Bucholtz said there's no precedent for owing a duty to "the entire world."

No special relationship is known because investigators have been unable to determine who sent the anthrax or how it was obtained.

Bucholtz and Battelle lawyer Tami Lyn Azorsky also argued there's no way their clients could foresee the material would be used as a terror weapon because it had never happened before. The facilities use anthrax to develop counter measures and drugs to protect against or treat it, the lawyers said.

Since Stevens' death, four other people have died - two workers in a Washington, D.C., postal facility that received mail containing the bacteria and two women in Connecticut and New York City whose source of exposure hasn't been determined.

Stevens' lawyer, Phillip Burlington, argued such high-risk materials are an exception to the special relationship rule and that its potential misuse should have been obvious.

"When you are dealing with biological warfare materials it is not unreasonable in this day and age to expect the government to reasonably anticipate that, or a private lab," Burlington said.

The lawsuit claims the strain of anthrax that killed Stevens was traced to the Army's Research Institute for Infectious Diseases at Fort Detrick, Md.

If the case goes to trial, that's an issue the jury will be asked to determine. Genetic analysis by researchers at Northern Arizona University and the Institute of Genomic Research in Maryland indicate the strain probably originated at Fort Detrick.

The suit also claims the government and Battelle are negligent because they failed to keep it secured.

The Supreme Court did not indicate when it would rule. Its decision will be forwarded to the 11th U.S. Circuit Court of Appeals in Atlanta.

The West Virginia Record
Judge who found WVU prof in comtempt honored at WVSU ceremony

5/23/2008 8:20 AM
By Lawrence Smith -Kanawha Bureau

CHARLESTON - Last weekend's commencement exercise in Morgantown wasn't the only one shrouded in controversy.

A federal judge who's "unprecedented" decision to bar anyone from aiding in paying a former USA Today reporter and West Virginia University journalism professor's contempt citation was not only the commencement speaker at the state's other land-grant university, but also the recipient of an honorary doctor of laws degree.

Prior to receiving their respective degrees, the nearly 500 graduates from West Virginia State University and West Virginia State Community and Technical College heard from U.S. District Judge for the D.C. Circuit Reggie B. Walton. In the course of remarks, Walton, a native of Donara, Pa., and 1971 graduate from West Virginia State, encouraged his soon-to-be fellow alumni to "keep this nation the great nation it deserves to be."

Shortly following his address, university President Hazo W. Carter Jr. "with high esteem" conferred Walton with an honorary doctor of laws degree.

Earlier this year, Walton, who began serving on the bench in October 2001 following his appointment by President Bush, sparked controversy by holding former USA Today reporter Toni Locy in contempt for not revealing her sources about the FBI's investigation into a former Army scientist's alleged involvement in the 2001 anthrax scare. Steven J. Hatfill, who worked at Army's infectious disease laboratory from 1997 to 1999, was initially identified by former U.S. Attorney General John Ashcroft as a "person of interest" in the case which followed the Sep. 11, 2001 terrorist attacks.

Since then, Hatfill has been cleared of any involvement in the matter. He is now suing the Justice Department alleging the FBI's leaking of information to reporters violated the Privacy Act.

Among the reporters who quoted anonymous FBI sources was Locy, who this past school year was a visiting journalism professor at WVU. In August, Walton ordered Locy, along with several other reporters to cooperate with Hatfill's attorneys in revealing their sources.

Because she's refused to name her sources, Walton on Feb. 19 held Locy in contempt. Effective March 11, Walton ordered Locy to pay $500 each day the first week, $1,000 each day the second week and $5,000 a day the third week until she reveal her sources.

The fines, Walton ordered, had to come from Locy's own pocket, and not from anyone else including USA Today and its parent company Gannett.

An 'extreme' decision

Though a judge holding a reporter in contempt for not revealing her sources is not unprecedented, an order barring anyone to assist Locy in paying the fines is. The Reporter's Committee for the Freedom of the Press, a Washington, D.C.-based journalism advocacy organization, said Walton's decision will have a "chilling effect" on future media coverage of sensitive issues.

"It's a travesty that a journalist can be essentially bankrupted for doing her job," Lucy Dalgilish, RCFP's executive director told the Associated Press following Walton's order. "This case is also particularly offensive because they know who some of the sources are."

In an interview with the Charleston Daily Mail the day her fines were to begin, Locy, a 1981 WVU journalism school graduate, said she found it unfathomable that Walton was treating her as "public enemy No. 1."

"I informed the public about the status and the quality of the FBI's investigation into the first biological attack on U.S. soil," she said. "Even Mafia bosses and White House aides are permitted to have legal defense funds."

"Neither my family nor my friends can help me pay these fines, according to the judge," she added. "My students can't even hold a bake sale to help me."

"That, to me, seems extreme."

Locy's attorneys, Robert C. Bernius and Leslie Paul Machado, with the Washington, D.C. law firm of Nixon Peabody, were successful in petitioning the U.S. Court of Appeals for the D.C. Circuit to block the fines pending an appeal of Walton's contempt order. On May 9, the appeals court heard arguments on the appeal.

Officials caught off-guard

Along with being seemingly unaware of the firestorm caused by his decision, WVSU officials gave conflicting accounts as to the timing of Walton's address, and honorary degree.

Interim Vice-President of Academic Affairs R. Charles Byers, who was a senior at State when Walton was a freshman, said the commencement committee voted sometime in February or March to invite Walton to speak. However, he was unsure since he did not attend that particular meeting.

He referred questions to Vice-President for Student Affairs Bryce Casto, the committee's chairman.

Though he believed the committee made the decision in February or March, Casto was unclear as to the exact date. When asked if the decision to invite Walton was appropriate given the Locy controversy, Casto became hostile and said, "That's not my decision, sir."

When pressed for additional details about the committee's decision, Casto said, "If you want an official university, you'll have to speak with Pat Dickinson."

Dickinson brushed aside any criticism that the committee's decision to invite Walton to speak and award him the honorary degree in the midst of his decision as opposing freedom of the press.

"Absolutely not," Dickinson said. "He's an alumnus who as distinguished himself for years and years."

According to Dickinson, this year was not the first time an invitation was extend to Walton to give the commencement address.

"He's been on the list for several years, and this has been the first time he's been able to speak," Dickinson said.

However, when asked when that happened, Dickinson hung up the telephone.

Friday, June 20, 2008
National Press Club Honors Outstanding Journalism

WASHINGTON, June 20, 2008 /PRNewswire-USNewswire via COMTEX/ ----Former USA Today Reporter, Chinese Journalist Win Press Freedom Citations

BusinessWeek was recognized for outstanding consumer and environmental journalism, and Rachel Smolkin won two awards for press criticism to highlight the 2008 National Press Club Awards.

Former USA Today reporter Toni Locy and Chinese journalist Qi Chonghuai won John Aubuchon Freedom of the Press Awards for their efforts to protect sources and reveal corruption.

"Journalism is indispensable to our system of government," said Sylvia Smith, the Club's president. "Excellent journalism is a celebration of all that's good in our democracy, even when it exposes problems. The National Press Club and its contest judges are thrilled to honor the best of the best."

The awards will be presented at a dinner on Monday, July 14, at the National Press Club, which has 3,700 members who work in journalism and communications. The Club annually honors the best journalism in the country. This year, Club judges evaluated 203 entries in 27 categories.

BusinessWeek won the periodical category in consumer journalism for a series of stories on companies that take advantage of impoverished, often poorly educated Americans. The magazine also captured the Robert L. Kozik Award for Environmental Reporting for an examination of the use of carbon offsets.

Smolkin was honored for her analysis of media coverage of controversy surrounding the men's lacrosse team at Duke University. Smolkin's work was published in the American Journalism Review. She is now national editor for legal affairs at USA Today.

Locy won a John Aubuchon Freedom of the Press Award/national for her determination to protect sources in the face of extreme personal risk. Locy was fined $5,000 a day earlier this year by U.S. District Court Judge Reggie Walton for refusing to reveal her sources for stories she wrote for USA Today in 2003 about the 2001 anthrax attacks. Locy now holds the Shott Chair of Journalism at West Virginia University.

The judge said Locy could not get the money to pay her fines from outside sources, essentially condemning her to bankruptcy. A few weeks later, the U.S. Court of Appeals for the D.C. Circuit issued a stay on the fines while it considers an appeal from Locy.

The case has helped draw attention to the need for a national shield law that would protect all U.S. reporters against judges and prosecutors who are increasingly seeking the identity of sources.

"If people fear contacting reporters because their names could become known, then many of them will stop talking to reporters," said John M. Donnelly of Congressional Quarterly, vice chairman of the NPC Board of Governors and a member of the Club's Freedom of the Press Committee. "If that happens, it is not only the press that will lose but also democracy in America because it will impair the flow of information, without which we would have a harder time keeping our leaders honest."

Qi won a John Aubuchon Freedom of the Press Award/international for reporting on local Chinese officials involved in abuse and corruption. A journalist for 13 years for several online and print publications in China's Shandong province, Qi was sentenced in May to four years in prison for alleged fraud and extortion. He has been beaten by police on several occasions.

"Qi's imprisonment on trumped-up charges is but one example of how China has trampled on press freedom," Donnelly said. "The government of China hopes the world does not talk about the lack of press freedom in that country during the upcoming Olympics, but the fact remains that dozens of reporters in China sit in jail cells merely for doing their jobs."

For the third year in a row, Newsday was honored in the online category. The newspaper won the Joan M. Friedenberg Online Journalism Award for best site for a story about the extraordinary efforts over three years by a young family to save a child suffering from a rare disease by having another "matched" child.

The National Press Club is the world's leading professional organization for journalists. Founded in 1908, the Club has 3,700 members representing most major news organizations. The Club holds more than 2,000 events including news conferences, luncheons and panels each year, and more than 250,000 guests come through its doors. On the web at www.press.org.

U.S. settles with anthrax mailings 'person of interest' Steven Hatfill
Prosecutors said the $5.82-million payout means the former Army scientist will likely never be charged in connection with the deaths of 5 people who came in contact with the deadly spores in 2001.

By David Willman, Los Angeles Times Staff Writer
1:48 PM PDT, June 27, 2008

WASHINGTON -- Dr. Steven J. Hatfill, the former Army scientist who was labeled a "person of interest" in the 2001 anthrax mailings, has won a $5.82-million settlement from the federal government, court documents filed today show.

Hatfill sued the Justice Department and FBI five years ago, alleging that repeated leaks of investigative details to the news media violated his right to privacy and ruined his reputation.

Former federal prosecutors knowledgeable about the case said that the government's payout to Hatfill signifies that, in all likelihood, he will never be charged for the crimes.

The settlement marks a turning point in the investigation of the mailings, which in the aftermath of the Sept. 11, 2001, terrorist attacks killed five people, prompted hundreds of others to seek treatment, disrupted mail service across the U.S. and closed a Senate office building in Washington for months.

More than six years after the FBI launched what would become one of its largest-ever investigations, the "Amerithrax" probe has yielded no arrests. The case remains unsolved.

A spokesman for the Justice Department, Brian Roerhkasse, said in a prepared statement that by agreeing to settle the lawsuit, the government "does not admit to any violation of the Privacy Act and continues to deny all liability in connection with Dr. Hatfill's claims." Roerhrkasse said that solving the anthrax case "remains among the department's highest law enforcement priorities."

Hatfill, who was trained as a physician and later researched how to counter the effects of deadly biological agents, has long insisted that he had nothing to do with the anthrax mailings. Hatfill's lawyer, Thomas C. Connolly, said that his client would have no comment on the settlement.

Connolly and a law firm colleague, Mark A. Grannis, oversaw depositions that elicited sworn testimony from 37 witnesses. Those who were questioned under oath included former Atty. Gen. John Ashcroft, who in August 2002 publicly labeled Hatfill a "person of interest."

"We took this case to defend very fundamental principles of fairness," Connolly said in an interview. "Whether we succeeded or not is for others to determine."

The settlement calls for the government to make an immediate $2.82-million payment to Hatfill. Beginning in 2009, the government will pay Hatfill an additional annuity of $150,000 a year for 20 years, according to court papers.

The lawsuit was filed in August 2003, but U.S. District Court Judge Reggie B. Walton did not permit Hatfill's lawyers to begin questioning FBI and Justice officials or news reporters for two more years. The government had opposed allowing agents and FBI leaders to be questioned, contending that the depositions could interfere with the investigation into the mailings.

In January, Hatfill's lawyers told Walton at a hearing that, by questioning federal investigators and several news reporters, they had identified three officials who allegedly leaked confidential information to the media. The named officials -- the former U.S. attorney for Washington, Roscoe C. Howard Jr., his former criminal division chief, Daniel S. Seikaly and an FBI spokesman, Edwin Cogswell -- have not commented publicly about their alleged roles.

At the end of that hearing, Walton ordered attorneys for the government and for Hatfill to try to settle the case with the help of a mediator. Walton said that without a settlement, the lawsuit could have gone to trial as early as December.

On Feb. 19, Walton, who had reviewed four still-secret FBI memos about the status of the anthrax investigation, said: "There is not a scintilla of evidence that would indicate that Dr. Hatfill had anything to do with this."

Grannis, one of Hatfill's lawyers, said today: "If anybody in the country really knew what it was like to be Steven Hatfill for the past six years, nobody would trade places with him."

The 2001 mailings -- hand-addressed letters bearing tiny amounts of deadly anthrax powder -- set off new waves of terror after the Sept. 11 attacks. The first letter arrived at the offices of American Media Inc. in South Florida. About Sept. 18, Robert Stevens, a 63-year-old photo editor, breathed in spores of the bacterium while examining a letter.

Stevens died on Oct. 5. Other letters laced with the same strain of anthrax were addressed to others in the media, including two network new anchors. Two other anthrax letters were addressed to members of the U.S. Senate.

Of the five anthrax-related deaths, two were of U.S. Postal Service workers in the Washington area.

Hatfill's plight recalls some of the FBI's biggest flops -- including the targeting of Richard Jewell, a security guard who alerted police to a suspicious backpack just before it exploded at the 1996 Olympics in Atlanta.

Media accounts described Jewell as "the focus" of the FBI investigation into the bombing that killed one person and injured 100. Another man later confessed, and then-Atty. Gen. Janet Reno apologized to Jewell. She said the leaks harmed him and "caused the FBI extreme damage to its investigation."

Jewell's mother filed a lawsuit against the Justice Department and the FBI. In September 1999, the government settled by paying her $2,500.

Times researcher Janet Lundblad in Los Angeles contributed to this report. 

Scientist in anthrax lawsuit gets $5.8M
By Kevin Johnson, USA TODAY
June 27, 2008

WASHINGTON — Former Army scientist Steven Hatfill, named by federal authorities as a person of interest in the 2001 anthrax attacks, will be paid nearly $6 million by the Justice Department to settle a contentious legal fight that has been raging for six years.

Hatfill had charged that the Justice Department violated his privacy by naming him as a possible suspect in the attacks that killed five people.

"The settlement announced today closes a very unhappy chapter in this nation's public life," Hatfill's lawyers said in a written statement.

"Our government failed us, not only by failing to catch the anthrax mailers but by seeking to conceal that failure. Our government did this by leaking gossip, speculation, and misinformation to a handful of credulous reporters."

Justice Department spokesman Brian Roehrkasse said the settlement was in "the best interests of the United States," adding that the payment should not be interpreted as an admission of any violation of the federal Privacy Act.

"The government remains resolute in its investigation into the anthrax attacks," Roehrkasse said. "We commend the agents and law enforcement personnel who have devoted countless hours to the pursuit of the perpetrator of this horrible crime, and we reassure the public and the victims that this investigation remains among the department's highest law enforcement priorities."

Hatfill's legal fight had far-reaching implications beyond a narrow privacy complaint against the government. In support of his claim, Hatfill's lawyers also waged a challenge to the First Amendment by demanding that reporters identify confidential sources who named the scientist "a person of interest" in the federal investigation.

Six reporters were subpoenaed to disclose government sources. Four of the reporters obtained waivers, allowing them to identify the officials.

At the time of the settlement announced Friday, former USA TODAY reporter Toni Locy was appealing a federal contempt order that threatened to require her to pay up to $5,000 a day for refusing to identify sources.

'DRASTIC ACTION': Judge holds reporter in contempt in anthrax case

A federal judge also was considering a contempt order against a former CBS News reporter.

In light of the settlement, Hatfill attorney Patrick O'Donnell said that Locy's testimony is no longer needed.

"I hope this means that this ordeal is over and that I can get on with my life," said Locy, now a college journalism professor. "I am pleased that Dr. Hatfill no longer needs my testimony."

The agreement announced Friday contained no finding against media organizations nor did it require the media organizations to make any payments to Hatfill.

Still, Hatfill's lawyers directed strong criticism at journalists who, the attorneys said, "failed us by putting aside their professional skepticism and shoveling the leaked information all too willingly into publications without questioning the accuracy of the information, the motives of the leakers or the fairness of the government's attacks."

Hatfill was publicly identified as a possible suspect in 2002 by then-Attorney General John Ashcroft. The scientist was never charged.

Under terms of the agreement outlined in court documents, the Justice Department will pay Hatfill $2.8 million in cash and $3 million in an annuity to paid in equal installments over 20 years.

The anthrax attacks came shortly after the 9/11 terrorist attacks on passenger aircraft that crashed in New York, Washington and Pennsylvania. Spores of the deadly substance were mailed to news organizations and members of Congress. The crime has not been solved.

Leaks, focus on single suspect undercut anthrax probe
The flawed FBI investigation was marked by abnormal tactics and internal dissent, interviews and court documents show. More than six years after the deaths, no charges have been filed.

By David Willman, Los Angeles Times Staff Writer
7:46 PM PDT, June 28, 2008

WASHINGTON -- The federal investigation into the deadly anthrax mailings of late 2001 was undermined by leaks and a premature fixation on a single suspect, according to investigators and scientists involved in the case.

More than six years after the mailings, no one has been charged, and the top suspect, former Army scientist Steven J. Hatfill was all but exonerated Friday when the U.S. Justice Department agreed to pay him $5.82 million to settle a lawsuit.

The anthrax mailings killed five people, crippled mail delivery in some areas and closed a Senate office building for months, heightening anxiety on the heels of the Sept. 11 terrorist attacks. Now, dozens of interviews by the Los Angeles Times and a review of newly available court documents reveal a flawed investigation marked by abnormal tactics and internal dissent.

Behind the scenes, FBI agents chafed at their supervisors' obsession with Hatfill, who in 2002 was publicly identified by then-Atty. Gen. John D. Ashcroft as "a person of interest." The preoccupation with Hatfill persisted for years, long after investigators failed to turn up any evidence linking him to the mailings. Other potential suspects and leads were ignored or given insufficient attention, investigators said.

One official who criticized Ashcroft for singling out Hatfill was rebuked by the FBI director's top aide.

When Hatfill, now 54, landed a government-funded university job, the Department of Justice forced his dismissal. Ashcroft and FBI officials testified in the lawsuit that they knew of no precedent for such intervention.

Investigators also questioned orders from their bosses to share confidential information with political leaders, a departure from normal procedure. The security of information within the probe was so lax that FBI agents found news helicopters racing them to the scenes of searches. One exasperated agent called the leaks to the media "ridiculous."

When an official proposed using lie-detector tests to find the source of the leaks, FBI Director Robert S. Mueller III dismissed the idea, saying it would be "bad for morale," according to testimony by one of the lead agents on the case.

Previously undisclosed deposition testimony by agents and their supervisors was gathered as part of the lawsuit Hatfill filed in 2003, alleging that the government violated his privacy and damaged his reputation and prospects for employment.

According to its website, the FBI has "devoted hundreds of thousands of agent-hours to the case," conducted more than 9,100 interviews, obtained about 6,000 grand jury subpoenas and completed 67 searches.

A federal judge who reviewed details of the investigation, including still-secret FBI summaries, declared earlier this year that there "is not a scintilla of evidence that would indicate that Dr. Hatfill had anything to do with this."

FBI leaders remained fixated on Hatfill into late 2006, agents said.

"They exhausted a tremendous amount of time and energy on him," said one of the FBI agents involved with the case who spoke to The Times on condition of anonymity because the investigation is continuing.

"I'm still convinced that whatever seemed interesting or worth pursuing was just basically nullified in the months or year following when 'person of interest' came out about Hatfill," he said. Other possibilities got short shrift, he said, because of assumptions within the FBI that "sooner or later they'll have this guy nailed."

Said another investigator: "Particular management people felt, 'He is the right guy. If we only put this amount of energy into him, we'll get to the end of the rainbow.' Did it take energy away? It had to have. Because you can't pull up another hundred agents and say, 'You go work these leads [that] these guys can't because they're just focused on Hatfill.' "

Mueller testified in a deposition that the probe posed tall obstacles. With no obvious suspect initially, he said, the FBI had to conduct "preliminary initial investigations" of a "universe of individuals" with access to the strain of anthrax used in the attacks. He said he had told aides "to take what steps were necessary to prevent leaks," which he believed had "undercut" the investigation.

An FBI spokesman, Michael P. Kortan, said Mueller would not comment for this article. The spokesman added that "solving this case is a top priority for the FBI. Our commitment is undiminished."

A plume of powder

On Oct. 15., 2001, Mueller assigned the anthrax investigation to Van Harp, a veteran FBI official. A photo editor in Florida had already died mysteriously from anthrax about a week earlier. But the onslaught of biological terrorism was not recognized until an aide to the U.S. Senate majority leader opened an envelope Oct. 15 on Capitol Hill, unleashing a plume of powdery material and a wave of national fear.

Harp learned that this investigation would not follow FBI procedures for strict confidentiality. For starters, Mueller instructed him to brief U.S. Sens. Thomas Daschle (D-S.D.), then the majority leader, and Patrick Leahy (D-Vt.), chairman of the Judiciary Committee. Each had been intended recipients of anthrax letters.

FBI officials wanted to assure the senators that the bureau was "very aggressively investigating the case," Harp testified. Nevertheless, sharing confidential investigative information was, he said, "an unusual step."

By the end of October, two Washington-area postal employees had died. In New York, a hospital supply worker also succumbed. On Nov. 21, 2001, the fifth anthrax victim, a woman in Oxford, Conn., died.

Federal investigators began looking into scientists who had worked with biological agents. Hatfill was one of those contacted for an FBI interview. His name also was floated within the gossipy networks of the scientific community. Some academics speculated that the mailings were the work of an American who sent the anthrax in order to boost research funding.

The FBI organized three teams of specialists in Washington, D.C., and in Frederick, Md., near where Hatfill lived and worked. Other agents and postal inspectors were deployed in Florida, New Jersey and elsewhere.

But external pressures were outpacing the investigation.

On Jan. 4, 2002, New York Times columnist Nicholas D. Kristof began goading the FBI. "I think I know who sent out the anthrax last fall," he wrote, describing the unnamed suspect as "an American insider, a man working in the military bio-weapons field."

On May 24, Kristof called for lighting "a fire under the FBI" and described the suspected American insider in more detail. Later, the columnist wrote that he was referring to Hatfill.

Hatfill's background invited questions.

Raised in central Illinois, he attended college in Kansas before serving in the U.S. Army. He earned a medical degree at the University of Zimbabwe and practiced medicine in South Africa. From 1997 to 1999, Hatfill was a virology researcher in the Army's labs at Ft. Detrick, Md., specializing in ways to prevent or treat infection from such lethal pathogens as the Ebola and Marburg viruses.

In a search of Hatfill's apartment, investigators found an unpublished novel he had written in which a wheelchair-bound man attacks Congress using plague bacteria.

Yet, no physical evidence or witness account emerged to show that Hatfill had ever handled or possessed anthrax or that he had had a role in mailing it.

Frustration at the FBI's lack of progress festered among senators and their staffs, who privately questioned the bureau's scientific competency and sense of urgency. The nine-story Hart Senate Office Building -- the Capitol Hill address of 50 senators and hundreds of staffers -- remained closed because of anthrax contamination.

FBI case agent Robert Roth testified that he found Daschle's staff "hostile." An aide to Leahy peppered the FBI with faxed questions about details of the case.

Meanwhile, Roth and veteran agent Bradley Garrett reached out to Hatfill repeatedly from December 2001 through spring 2002. Hatfill was cooperative throughout, they testified. He told the investigators he would welcome a search of his apartment.

But as Hatfill was signing a search authorization June 25, 2002, at the FBI office in downtown Frederick, Roth spotted a media helicopter heading "right toward Steve's house." Within minutes after Hatfill had signed, droves of Washington and Baltimore-based camera crews and reporters descended on his apartment.

"How many people knew in advance that you intended to go to talk to Dr. Hatfill and try to get a consent to search?" asked Hatfill's lawyer, Thomas C. Connolly, during a deposition.

"It was probably several hundred," Roth replied, including the mayor of Frederick.

Admired investigator

Garrett, then 53, was among the FBI's most revered investigators. In 1997, he traveled to Pakistan to help apprehend a gunman who had killed two CIA workers outside agency headquarters in Langley, Va. He also obtained a confession from Ramzi Yousef, mastermind of the 1993 bombing of the World Trade Center.

Asked by Hatfill's lawyer if it was "appropriate" to disclose a planned search of a residence, Garrett replied:

"Absolutely not."

In addition to the risk of "forewarning people you are coming to search," Garrett testified, "it's clearly not appropriate or even responsible to do that in reference to the person you are searching. He's not been charged. He has not gone to court."

Garrett added, "Let's just say for the sake of argument that Dr. Hatfill did have something to do with the anthrax case, but he had three other people working with him to do it. You don't want them to know you are searching his place because then that alters their behavior. They can destroy evidence."

When the FBI searched Hatfill's apartment a second time, on Aug. 1, 2002, the media helicopters and the van loads of camera crews were there again.

"Obviously, someone told them we were going to do that search," Garrett testified.

Roth, who was with Garrett for both searches, said the tip-offs were "just ridiculous."

At one point, Roth and other FBI officials tried to trace who was accessing the central computer file in which all investigative interviews and other developments were stored. Roth said the file was "an open book," used by "a huge group of people."

Someone had leaked the information that the second search of Hatfill's apartment was made with the authority of a court-issued warrant, which wrongly implied that Hatfill was no longer cooperating.

Mueller resisted when an official recommended a criminal probe of the leaks, with mandatory lie-detector tests for the anthrax investigators, Roth testified. The FBI director raised a hand and said, " 'I don't want to do that. . . . It's bad for morale to go after these people,' " Roth said.

Mueller testified that he did not recall the episode. He said he had backed at least one other leak investigation but did not know if any action was taken.

No charge, but a label

On Aug. 6, 2002, five days after the second, widely televised search of Hatfill's apartment, Ashcroft appeared on two network morning programs. On CBS' "The Early Show," the attorney general was asked, "Is Dr. Hatfill a suspect?"

Ashcroft replied, "Well, he's a person of interest."

Hatfill had not been charged with a crime. But he had a label -- a label that officials used repeatedly. Ashcroft later testified that he did not think it "would cause [Hatfill] stigmatization."

Others at the FBI were concerned. Harp testified that he had viewed labeling Hatfill as "improper." Harp kept his misgivings private, but a newly assigned colleague spoke out.

Michael A. Mason, then the FBI's executive assistant director, told reporters that, without sufficient evidence to charge someone with a crime, "there is absolutely zero value to coming forward with names or definitions of persons of interest."

Afterward, FBI Deputy Director Bruce J. Gebhardt privately rebuked Mason. Gebhardt said the remarks "did not go over well in the front office," according to sworn testimony from another senior bureau official.

Despite the scrutiny, Hatfill landed a new job teaching public safety personnel how to respond to acts of terrorism. The $150,000-a-year position, at Louisiana State University, was funded by a grant from the Justice Department.

Arthur Eberhart, an FBI biohazards specialist who helped lead the anthrax investigation, testified that he saw a "conflict" in Hatfill being paid to teach counter-terrorism while "he was a suspect in the case." Other officials also expressed qualms.

Soon after Hatfill began drawing his paycheck, a Justice Department grants administrator ordered the university to terminate his contract.

Ashcroft and five FBI officials testified that they knew of no other instance in which the government had forced an investigative target out of a non-governmental job.

Still lacking any proof that he had committed a crime, the government put more pressure on Hatfill: Bloodhounds were brought in to seek any scent of anthrax in Hatfill's apartment and places he frequented.

On Aug. 12, 2002, Newsweek magazine reported that the dogs "immediately became agitated." An unnamed law enforcement source was quoted, saying the bloodhounds "went crazy."

But FBI tests found no traces of anthrax, and investigators concluded that the dogs' excitement was useless as evidence. Harp and Roscoe C. Howard Jr., then the U.S. attorney for Washington, D.C., acknowledged in testimony that they had confirmed details about the bloodhounds to Newsweek before the article was published.

In addition to the searches, a caravan of FBI agents photographed and videotaped Hatfill seven days a week for months. An FBI employee drove over Hatfill's foot, prompting Washington, D.C., police to ticket him for "walking to create a hazard."

Media coverage of the 24-hour surveillance helped cement Hatfill's public image as a central figure in the investigation. The constant aspersions provoked a vehement response from Hatfill, who proclaimed his innocence in a sidewalk news conference.

Yet, away from public view, Hatfill's lawyer had approached the FBI with an alternative: In exchange for ending the bumper-lock chase scenes, Hatfill would surrender his passport, agree to be outfitted with a satellite-guided tracking device and allow an FBI agent to remain with him at all times.

"There were specific reasons that we did not accept that offer, but not because it was judged as insincere," Roth said.

Probe gets new leader

As the first anniversary of the anthrax mailings passed with the case unsolved, Mueller phased out the soon-to-be-retired Harp by promoting a senior FBI agent from San Diego, Richard L. Lambert, to supervise the investigation.

Lambert also tended the concerns of congressional leaders. He and Mueller met privately with Daschle, Leahy and several Senate staffers. Leahy later told Vermont students in an online discussion that some of the briefings he received "have been highly classified."

According to Lambert, he and Mueller advised senators and staffers that the information was sensitive and confidential. But he also acknowledged that he erred by revealing Hatfill's "status in this criminal investigation."

"It was inappropriate to discuss Steven Hatfill in the context of that meeting," Lambert testified. "Typically, the FBI does not discuss the identity of any persons concerning an investigation. . . . We typically disclose our facts in a courtroom."

Lambert described the labeling of Hatfill and the many leaks as potentially harmful to both Hatfill and to the investigation.

Nevertheless, for the next four years Lambert kept FBI and postal investigators focused on Hatfill, according to people familiar with the case.

Some dissatisfied agents sought a review of Lambert by the bureau's Inspection Division, which evaluates FBI operations. "There were complaints about him," one agent told The Times. "Did he take energy away from looking at other people? The answer is yes."

On Aug. 25, 2006, Mueller transferred Lambert off the case, naming him special agent in charge of the FBI field office in Knoxville, Tenn. Results of the Inspection Division's review of the complaints have not been disclosed, and Lambert declined to be interviewed for this article.

The fixation on Hatfill ran broadly through FBI leadership. Eberhart, the biohazards expert, testified that when he retired in late 2002, "Dr. Hatfill was our main focus."

Now, many who have been involved with the anthrax case say they fear it will never be solved.

Said Peter Setlow, a University of Connecticut biochemist who has served as a consultant to the FBI:

"They're not going to ever catch him until somebody confesses on their deathbed or something like that. You're not going to find a smoking gun."


Times researcher Janet Lundblad in Los Angeles contributed to this report.

The Register (UK)
$5.8m payout draws line under FBI's anthrax screw-up
Seven years and a bioterror defense industry later...

By George Smith, Dick Destiny 
Published Wednesday 2nd July 2008 12:19 GMT

When the US Department of Justice agreed to pay Steven J. Hatfill $5.82 million in damages for trashing his life and reputation late last week, it was another big low in the mess that's been the Amerithrax 2001 case. With the de facto exoneration of Hatfill, who had been dubbed a "person of interest" by the FBI, bystanders can conclude the agency has no evidence and no valid notion of who may have been responsible for the mailings of anthrax powder which resulted in five deaths seven years ago.

If one summarizes where the investigation went wrong, an obvious place to start was the FBI's reliance on scientists who were nothing more than prating busybodies, and on its own culture of leakers. Agents and administrators were only too happy to telegraph to the media the name of someone the agency thought was the culprit. Hatfill ranks with Richard Jewell, now deceased, and Wen Ho Lee, among those tarred by FBI leaks and convicted in the newsmedia. Jewell, who was initially named as the prime suspect in the Atlanta Olympic bombing case, sued a number of media outlets and won significant sums before his death at age 44. Lee also sued the government, as well as the Associated Press, the New York Times, the Washington Post, the Los Angeles Times and ABC, winning a collective settlement of $1.6 million for their roles in defaming him as a nuclear spy.

All the smears that fit...

Hatfill was fingered in 2002 by New York Times opinion page columnist Nicholas Kristof, on the say-so of microbiologist Barbara Hatch Rosenberg, a Federation of American Scientists advisor on biological weapons.

Kristof and the Times went after Hatfill hard, mentioning him in at least three different columns, all aimed at goading the FBI over the anthrax investigation. Kristof referred to Hatfill as "Mr. Z," a name used by Barbara Hatch Rosenberg in her briefings and writings addressing the man she thought was the anthrax mailer. "I just decided never to use names," she told one newspaper.

"Mr. Z" was an insider in the shadowy world of the nation's biodefense effort, insisted Kristof on July 2, 2002. Z had shown evasion in a polygraph and been caught in flagrante delicto with his girlfriend in a microbial hot room at Fort Detrick, America's premier biodefense installation. If Z were an "Arab national," thundered Kristof, he'd be in jail, intimating the US government was covering up.

Kristof named the source for his inside information as "people in the biodefense field" who'd given Hatfill's name to the FBI. The FBI needed to get after "Mr. Z" more aggressively, added Kristof. "When do you shift into high gear?" he asked angrily.

In what would appear to be an attempt to placate Kristof, Rosenberg and other newspapers jumping on the bandwagon of blaming Hatfill circumstantially, the government did turn up the heat. The Department of Justice instructed Louisiana State University not to hire Hatfill as the supervisor of its counter-terror program, one funded by government grant. A raid on Hatfill's apartment was televised. Another leaker told Newsweek anthrax-sniffing dogs had gone nuts over the unemployed scientist. (The dogs were later deemed to be unreliable witnesses.) A pond was dragged and drained, allegedly to find evidence Hatfill was said to have disposed of. And, at one point, FBI men tailing him in a car even ran over his foot.

A touch of the Olivers

The Hatfill boondoggle resulted in Rosenberg's effective separation from the Federation of American Scientists, a sober and well-known public information group which did not appreciate being attached to someone who'd gone 'Oliver Stone' with a conspiracy theory. Since then the microbiologist has not appeared in any major news stories on bioterrorism, except those mentioning her role in the Hatfill case. The obsession with "Mr. Z" appears to have smoked her reputation, a case of collateral damage in the tarring of Hatfill.

Hatfill and his lawyer subsequently moved to sue the New York Times for defamation in Kristof's columns. A judge dismissed the suit early last year in finding that Hatfill was a public official and had not shown that the newspaper had published information it reasonably may have believed to be false.

Unlike Judith Miller, who was thrown onto the tracks for bringing embarrassment on the Times for untrue stories on weapons of mass destruction, Kristof remained at his post.

In the wake of Amerithrax and 9/11, the biodefense industry took off. Although only five people had died, the anthrax mailings generated great hysteria. Newspapers, magazines and television shows filled with experts playing the fear card for all it was worth, predicting it was only a matter of time until a mass death incident resulted. Biological weapons, it was claimed, were trivially easy to make.

In the intervening seven years, biological weapons have killed zero people and been shown, somewhat empirically, not to be so easy to make after all. In any case, a great deal of the biodefense industry in the United States now works with very little oversight. Think of it as scientific welfare for those who often claim to be defending the country against a clear and present danger.

Who was responsible for the anthrax mailings? There still exists a cottage industry in theories: stories about incriminating emails between boffins at Fort Detrick, arguments over the nature of the anthrax powder and its similarity or dissimilarity to an anthrax bioweapon once made by the United States, and hoary tales about Detrick scientists stealing microbes, their personal beefs and entrances into the lab after hours. All of it pretty much unconvincing gossip.

What would seem certain is that the anthrax must be long gone, along with much of the forensic value the samples once had for the investigation - and that the FBI will need miracles, an extremely lucky break or unexpected confession to solve the case. ®

George Smith is a senior fellow at GlobalSecurity.org, a defense affairs think tank and public information group. At Dick Destiny, he blogs his way through chemical, biological, and nuclear terror hysteria, often by way of the contents of neighbourhood hardware stores.

Reason Magazine
What Price Justice?
Linked to the 2001 anthrax attacks, Steven Hatfill has finally had his day in court.

Jeff Taylor | July 3, 2008

You want a happy ending. You want to say that everything eventually worked, that the system got it right in the end, that the latest twist in the seven-year long anthrax attack saga is a turn for the better. Except you can't.

On June 27th former federal bioweapons researcher Steven Hatfill essentially won his dispute with a federal government that had suspected him of unleashing anthrax letters on America in the fall of 2001. While admitting no wrongdoing, the feds agreed to pay Hatfill $5.8 million. In other words, the feds admitted they screwed up. Big time.

This sounds like a victory, and it surely is for Hatfill, who was hounded by the FBI and identified by hapless Attorney General John Ashcroft as a "person of interest" in the case. But the bigger picture remains bleak.

Most striking is the fact that the masterminds behind bold acts of terrorism—Osama bin Laden and the anthrax killer—remain at large despite untold of amounts of blood and treasure spent to catch them. Moreover, the anthrax attacks, unlike the use of airliners as guided missiles, remains an eminently repeatable mode of mass mayhem. Authorities still do not know exactly how the deadly compound was formed, where, or by whom.

The investigative missteps in the anthrax case were huge and there is no sign that procedures have changed in such a way as to avoid repeat. In fact, counter-terrorism measures have only become more hair-trigger and susceptible to political or panicked influence from outside the immediate investigation.

Former FBI agent Brad Garrett, who was part of the original anthrax investigation, recently reflected on how top brass in D.C. tried to micromanage every step of the investigation. FBI Director Robert Mueller demanded and received daily briefings on the case, which predictably tried to convey "progress" even if the facts suggested otherwise. This, of course, is not investigation, but ass-covering.

Any semi-complex problem requires getting smart people together and then leaving them alone to solve it. Trust, it turns out, is a key investigative tool. But the FBI didn't trust itself or others in 2002 and there is little reason to believe that anything has changed.

Instead, the FBI turned from trust to fear, now the defining element in America's counter-terrorism toolkit—from shock-and-awe to waterboarding. Clumsy and obvious surveillance was maintained on Hatfill with hopes of cracking him. Then a wholly implausible circus of "anthrax alerting" bloodhounds was staged to further ratchet up the pressure. In all likelihood, the "results" of these dog sweeps were fabricated by the feds, then leaked to gullible reporters to further pressure Hatfill.

This mind-set does not look for evidence or leads, let alone the truth. Such activity is not investigative, but prosecutorial. Guilt has been decided, the only question is how to make the case. It is no coincidence that a unitary executive branch that claims the power to imprison without the need for independent review or verifiable evidence produced and sanctioned this approach in the anthrax case.

There are now several distinct possibilities in the anthrax mystery, all with backers on the Internet and elsewhere. One is that the feds have no clue who might have been responsible. This is possible, beyond depressing to consider. Disputes over whether the anthrax spores themselves were "weaponzied" took up an inordinate amount of investigative energy, perhaps allowing the killer to cover all tracks leading back to him or her.

Then there is the case-making theory. This is the notion that the government has a suspect or suspects, but has yet to come up with enough evidence to merit an arrest. A close cousin of this view is the "Central New Jersey" theory; the idea that the anthrax used in the attacks was cooked up in the Garden State among a narrow range of possible circumstances.

Finally, we have most tin foil-plated view, one that on my blacker days I can readily see. Namely, the anthrax attacks were undertaken by a person or persons with ties close enough to the federal government that it is effectively impossible to prosecute them. Too many secrets would spill out.

All of these possibilities are dysfunctional enough for the next occupant of the Oval Office to undertake a top-to-bottom reform of America's counter-terrorism efforts. Otherwise, justice will remain elusive and arbitrary for citizens like Steven Hatfill.

Contributing Editor Jeff Taylor writes from North Carolina.

Still an anthrax mystery

Palm Beach Post Editorial
Saturday, July 05, 2008

It took the Justice Department six years, endless bad publicity and $4.6 million to concede that it had no case against Steven Hatfill, the most famous "person of interest" in the nation's history.

Last week, the former Army germ warfare scientist collected close to $3 million in cash and a $150,000-a-year annuity to settle his lawsuit against the federal government. Mr. Hatfill accused FBI agents and Justice Department officials of violating his privacy and recklessly accusing him of involvement in the spate of anthrax letters that killed five - the first victim in Boca Raton - and sickened at least 17 others just after 9/11.

Prosecutors didn't just violate Mr. Hatfill's privacy; they destroyed it, and with it his reputation. His lawsuit blamed federal officials for leaking information about him to news organizations. Investigators tailed him, harassed his employer, ransacked his home and also his girlfriend's apartment. All along, Mr. Hatfill insisted that he knew nothing about the anthrax attacks, yet the government seemed obsessively focused on him and no one else. Why were there no other "persons of interest"?

Unconscionably, the government branded Mr. Hatfill a "person of interest," and then acted as if that term wasn't anything like calling him a "suspect." In fact, there was no appreciable difference as far as the public was concerned. The damage to Mr. Hatfill's reputation was just as severe as if the FBI had put his face on a wanted poster. Caught up in the mess were reporters who covered the investigation and relied on government sources during the emotionally charged aftermath of 9/11. Mr. Hatfill was by far the biggest casualty, but news agencies can claim some measure of federal victimization, too.

The government's willingness to settle and pay the large numbers indicates how badly investigators bungled the case. The settlement leaves the impression that federal officials were more concerned about identifying a target to allay public fears than to build a successful prosecution to solve the anthrax mystery. Americans still don't know who was behind those lethal letters, and the level of incompetence at the FBI suggests that they never will.

Still unresolved is Maureen Stevens' lawsuit against the government. Ms. Stevens' husband, Robert, died in 2001 after inhaling anthrax at American Media Inc. in Boca Raton. In her 2003 suit, Ms. Stevens accused the government of lax security in safeguarding anthrax samples at the Fort Detrick Army research facility in Maryland. The theory is that the anthrax came from there. Mr. Hatfill once worked at Fort Detrick.

The government has tried in court to make Ms. Stevens' lawsuit go away. In fact, her lawsuit offers the only chance for her and the nation to learn who was behind this terrorist attack.

The Hill
Mukasey takes heat, but not like Gonzales did
By Susan Crabtree
Posted: 07/09/08 06:57 PM [ET]

Attorney General Michael Mukasey faced a Democratic browbeating Wednesday, but it was mild compared to the bipartisan ire predecessor Alberto Gonzales endured in the same hot seat nearly a year ago.

Mukasey addressed the Senate Judiciary Committee members’ questions carefully, with gracious but firm responses. He balanced the Justice Department’s desire to give intelligence officers the tools they need to fight terrorists with the responsibility to protect people’s privacy. 

Pressed by Sen. Russ Feingold (D-Wis.) on an FBI profiling technique that potentially singles out Muslims, Arabs or other groups, Mukasey said he was considering changes to give FBI agents “clear and consistent rules for conducting investigations while maintaining vital civil liberties protections.”

Those policy changes would not allow the FBI to investigate Americans solely because of race or ethnicity, Mukasey said. He was less decisive when Feingold followed up by asking whether people might be investigated based on their ethnicity, travel habits and whether they own a gun.

“The nature of evidence gathered and the way that it’s gathered will be subject to review,” he said.

Some of the harshest questions dealt with Gonzales and allegations that many divisions of the Department of Justice (DoJ) were politicized during his tenure.

In his opening statement, Mukasey said he takes allegations of politicization with the “utmost seriousness.”

“It is crucial that we pursue our cases based solely on the law … and the American people have complete confidence in the propriety of what we do,” he said.

Mukasey acknowledged that the DoJ’s Inspector General found the department was politicized under Gonzales, but he would not say whether he agreed with that determination.

“The [DoJ’s Inspector General] said it was,” he said in response to questions.

“What do you think? You act as though you float above the ether,” retorted Sen. Joseph Biden (D-Del.).

Mukasey responded that when he arrived at DoJ, he found “enormously dedicated” people who wanted to help him succeed. At the same time, he said criticism that the DoJ had been politicized was justified.

“You sound like a State Department guy,” Biden replied. “You’re an enigma to me.”

Gonzales resigned in August 2007 after a number of controversies, including DoJ’s role in the dismissals of nine U.S. attorneys.

Later in the hearing, Sen. Dianne Feinstein (D-Calif.) lectured Mukasey about his answers. She referred to former Deputy Attorney General James Comey’s dramatic congressional testimony that Gonzales and President Bush’s chief of staff, Andrew Card, showed up at an intensive care unit and tried to persuade then-Attorney General John Ashcroft to reauthorize Bush’s domestic surveillance program. Ashcroft was ill at the time and refused to sign off. The visit was the start of a dramatic showdown between the White House and the Justice Department over the program in 2004.

“If that’s not politicization, I don’t know what is,” Feinstein said.

Judiciary Committee Chairman Patrick Leahy (D-Vt.) again asked Mukasey about the administration’s positions on torture and wiretapping, key parts of his confirmation battle last year. Justice Department lawyers in the Office of Legal Counsel (OLC) came up with the expansive interpretations of the law, and Leahy wanted to know if Mukasey had reviewed these opinions to determine whether he thought they were consistent with the law.

Sen. Dick Durbin (D-Ill.) asked the same question of Mukasey at a hearing in January, and Leahy reminded Mukasey on Wednesday that he had pledged at the time to review the legal memos.

Mukasey said he had reviewed most of the opinions but would not discuss them or provide an index of all the OLC opinions on torture and wiretapping.

“I cannot make a commitment to open the drawers of the OLC to this committee, nor would I think it’s appropriate to do so,” Mukasey said.

Leahy accused Mukasey of failing to fulfill his promise to review the memos, which he argued amounted to “turning a blind eye to the excesses they have allowed and may continue to allow if they are not withdrawn.”

Sen. Sheldon Whitehouse (D-R.I.) asked whether Mukasey had had time to determine whether waterboarding constitutes torture.

When Mukasey said that he hadn’t because waterboarding is no longer part of the interrogation program, Whitehouse commented, “I detect a very pronounced reluctance to look backwards.”

Leahy also inquired about the status of the investigation into the anthrax scare, which inspired widespread fear across the country and shuttered the Senate shortly after the attacks of Sept. 11, 2001. Letters containing anthrax spores that were mailed to several news media, as well as Leahy and then-Sen. Tom Daschle (D-S.D.), and killed five people and infected 17 others.

“Nobody has been convicted and five people are dead and hundreds of millions have been spent [on the investigation],” Leahy said.

Mukasey said only that it is an active investigation and declined to comment.

The New York Sun
Times Wins in Libel Suit Brought By Former Anthrax Suspect

By JOSH GERSTEIN, Staff Reporter of the Sun
July 14, 2008

A federal appeals court is handing a legal victory to The New York Times by upholding a lower court's ruling tossing out a former Army scientist's claim that he was libeled by the newspaper in columns which linked him to the deadly anthrax attacks in 2001.

The 4th Circuit Court of Appeals, based in Richmond, Va., ruled that the scientist, Stephen Hatfill, was a public figure in the national debate over bioterrorism preparedness.

With Dr. Hatfill deemed a public figure, he could only win his suit by proving that the Times deliberately lied about him or knew that it was likely the information they were printing was false. Dr. Hatfill could not meet that burden, the appeals court said in a unanimous ruling from a three-judge panel.

"Throughout his career, Dr. Hatfill was not only repeatedly sought out as an expert on bioterrorism, but was also a vocal critic of the government's unpreparedness for a bioterrorist attack, as evidenced by the topics of his lectures, writings, participation on panels, and interviews," Judge Paul Niemeyer wrote, joined by Judges M. Blane Michael and Clarence Beam. "Through these media Dr. Hatfill voluntarily thrust himself into the debate. He cannot remove himself now to assume a favorable litigation posture."

Judge Niemeyer said the author of the columns, Nicholas Kristof, wasn't libeling Mr. Hatfill because the columnist has strong reason to consider the scientist to be the lead suspect in the crime. "Indeed the record contains substantial evidence to support The New York Times' contention that Kristof actually believed that Dr. Hatfill was the prime suspect."

The lawsuit was a tightrope-walk for the Times, particularly because Mr. Kristof refused to identify his confidential sources for the columns. The district court judge who handled the case, Claude Hilton, imposed a fairly mild sanction on the Times, simply barring the newspaper from relying on information from those sources.

Dr. Hatfill's lawyers said the Times's defiance should have been punished more sternly, but the appeals court panel said yesterday that the district court's action "did not amount to an abuse of discreation."

The FBI carried out several searches for evidence linking Mr. Hatfill to the anthrax-laden mailings. However, neither he nor anyone else was ever charged in the case.

Last month, the federal government agreed to pay $5.8 million to resolve a Privacy Act lawsuit in which Mr. Hatfill accused government officials of illegally releasing information about him to the press. The stories came from anonymous leaks and an unusual public statement in which the attorney general at the time of the attacks, John Ashcroft, openly described Mr. Hatfill as a "person of interest" in the investigation.

Dr. Hatfill's suit against the government drew significant attention because a former reporter for USA Today, Toni Locy, faced potentially ruinous fines for refusing to name her sources for articles about Dr. Hatfill. The contempt ruling against Ms. Locy was on appeal when the case was settled.