Anthrax case lawsuit to go on, judge rules

Ex-bioweapons expert alleges government leaks have smeared his name

February 07, 2004|By Scott Shane | Scott Shane,SUN STAFF

WASHINGTON - A federal judge yesterday kept alive Dr. Steven J. Hatfill's lawsuit against the FBI and Justice Department for allegedly smearing him with selective leaks from their anthrax investigation.

U.S. District Judge Reggie B. Walton said he would permit Hatfill's attorneys to submit questions and request documents from the government and news organizations.

Hatfill, a former U.S. Army bioweapons expert identified by Attorney General John Ashcroft as a "person of interest" in the anthrax case, claims public statements, leaks and surveillance by the government since 2002 have derailed his career and wrecked his life.

He filed suit in August, saying the harassment and leaks violated the federal Privacy Act and his constitutional rights.

The Justice Department has argued that permitting Hatfill's attorneys to question the government about leaks would interfere with the FBI investigation.

No one has been charged with mailing the anthrax-laced letters that killed five people and made at least 17 others sick in 2001. In court papers, an FBI official has said 28 FBI agents and 15 postal inspectors are working on the case, and investigators have questioned 5,000 people and issued 4,000 subpoenas.

But after reviewing a secret memorandum prepared by the Justice Department, Walton said he is still not convinced that allowing Hatfill's lawsuit to proceed will hurt the investigation.

"The problem I'm having, to be very candid, is that I could see us here this time next year in the exact same posture that we're in now," Walton said. "I do agree with Dr. Hatfill's position that based on what he's alleging, he's been injured. To require that he remain in limbo indefinitely is a problem."

After an hour-long hearing, Walton directed Hatfill's attorneys to submit written questions and document demands to the government by Feb. 27. Then Justice Department lawyers will have to specify how answering the questions will do harm.

Walton ruled that Hatfill's attorneys are free to submit questions about the alleged leaks to people outside the federal government.

Mark A. Grannis, an attorney for Hatfill, gave three examples of allegations about Hatfill that the news media attributed to federal sources. One was a report that FBI agents had found a sample of Bacillus thuringiensis, a relative of the anthrax bacteria used as a pesticide, in his refrigerator. Another was a report that bloodhounds "went crazy" matching a scent from the anthrax letters to Hatfill's scent. The third was that Hatfill was given a lie detector test by the FBI in July 2002.

While not confirming the reports, Grannis said Hatfill should be allowed to find out who leaked them to reporters.

Assistant U.S. Attorney Mark E. Nagle said many allegations about Hatfill were attributed in the news reports to "government sources" or "law enforcement officials," not to the FBI. He suggested that leaks may have come from state or local police cooperating with the FBI.

In addition to Hatfill's lawsuit, the government is defending a suit filed by the family of Robert Stevens, the photo editor in Florida who was the first person to die of anthrax. That suit claims the mailed anthrax originated in a government biodefense program.

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