WASHINGTON – A judge approved bioterror expert Stephen Hatfill's (search) bid Thursday to question journalists who published stories based on leaks relating to the 2001 anthrax attacks, so long as they aren't forced to violate confidentiality agreements with their sources.
Also, under provisions of the unusual agreement, the Justice Department will circulate waiver forms to its employees next month that would release journalists from any agreements to protect anonymous sources. If Justice employees choose to sign them, Hatfill's attorneys would then proceed to depose reporters.
"I am not prepared to leave this at a status quo," said U.S. District Judge Reggie Walton (search), who admonished government attorneys earlier this month for repeated leaks to the media about Hatfill. "I believe Dr. Hatfill has a right to his day in court."
Hatfill is suing Attorney General John Ashcroft (search) and other government authorities who publicly named him as a "person of interest" in the attacks. He said his reputation has been ruined and is seeking unspecified monetary damages.
At the hearing Thursday, Walton agreed to extend a stay protecting Justice officials from depositions until April, citing the danger of inadvertent disclosure of sensitive information in an ongoing investigation. But he said Hatfill should be able to question journalists about leaks if their government sources don't object.
"This is an extraordinary concession," responded government lawyer Elizabeth Shapiro, who agreed to the proposal after Walton urged the parties to speed up the case after months of delays — or face a court order.
Hatfill's lawsuit claims officials named him to deflect attention from their inability to find whoever was responsible for the October 2001 attacks, which killed five people and sickened 17 others. He still is the only publicly named "person of interest" in the case, although he has never been charged.
The FBI had Hatfill under 24-hour surveillance for months following the attacks and in one incident, agents in a vehicle trailing Hatfill ran over his foot on a Washington street. Government lawyers have said Ashcroft named Hatfill as a "person of interest" to dampen speculation that he was a suspect.
Under the agreement approved Thursday, Hatfill's attorneys will submit to the Justice Department a list of news articles and quotes about which they seek to question journalists. Government attorneys would then circulate the waiver form with the list to Justice employees by late November for them to sign if they choose.
Hatfill's attorneys had sought a broader waiver that would have allowed questioning over any story that potentially contained leaks about Hatfill as well as depositions of Hatfill's friends, neighbors or other third parties who might have received confidential information from government officials.
They said distributing waiver forms was a reasonable approach and was being used by prosecutors investigating the leak of undercover CIA officer Valerie Plame's identity. In that case, some journalists agreed to testify after government sources waived confidentiality agreements with them.
But government attorney Elizabeth Shapiro successfully argued for a narrow waiver that would make clear that employees had a right to refuse to sign.
"Sending these forms out is completely unprecedented," she said. "There is a risk of compulsion if we don't advise them that this is voluntary."