Steven J. Hatfill wants it both ways.
In one lawsuit, he claims that former Attorney General John Ashcroft, the federal government, FBI agents, and other federal employees violated the Privacy Act of 1974 repeatedly during the 2002 investigations of the anthrax mailings and poisonings. Hatfill alleges that federal employees improperly pulled government records—thus triggering the Privacy Act—to leak information about him to the press. (The Privacy Act was passed in response to President Nixon’s routine abuse of records.)
In a second lawsuit, Hatfill claims Nicholas D. Kristof of the New York Times libeled him in a series of columns written in 2002. Kristof drew on “experts,” “investigators,” and “Army documents” to drop intriguing clues about the involvement of a “middle-aged American” with U.S. bio-defense program experience with the anthrax case. His columns urged the FBI to “pick up the pace,” “shift into high gear,” and recover from its “lethargy” in the investigation. Kristof finally named Hatfill as the “middle-aged American” he’d written about after Hatfill complained publicly about the FBI’s visible investigation of him.
Without a doubt, the FBI and the Justice Department leaked Hatfill information to the press like a Bangladesh drainage ditch during a typhoon. The American media so boiled over with thinly sourced reports linking Hatfill to anthrax that his lawyers got it right in the first suit when they claimed it would be pointless and hopeless to catalog every news report that may have contained “illegal disclosures.”
Included in the suit’s incomplete list of stories containing “illegal disclosures” were three Kristof columns from July. (Have Times$elect? Read the Kristof columns.)
Let’s assume for a moment that the blabbermouth feds violated the Privacy Act a million times over by divulging the contents of government files on Hatfill to reporters. And what if the information the feds released from those files was true, or if they believed it to be true? If that’s the case—and if Kristof obtained his information from those sources—he could build a strong defense in the libel case that he wrote under the reasonable belief that the information was true. It would be difficult, though not impossible, for Hatfill to prove Kristof was negligent in his reporting, a fundamental test in any libel case.
But what if the information read out of the files to reporters was false? Actually, Hatfill’s Privacy Act suit allows for this contingency, noting that “the leaked information was frequently wrong by the time it appeared in news stories, though plaintiff is unable to say whether the factual errors arose during the leaking or whether the information is wrong in the government’s records.” On the specifics of Kristof’s work, the Hatfill Privacy Act lawsuit maintains that three of the columnist’s July columns “contained fresh falsehoods about Dr. Hatfill.”
Enter Hatfill’s paradox: The more evidence his lawyers gather in the Privacy Act case to prove the government maintained a file on him and actively leaked it to reporters, the more he undermines his libel action against Kristof and the New York Times.
Why? Because if the information shared from the files is true, and Kristof drew on that information in his columns, he and the Times can plead the truth as a defense. Case over.
If the leaked government information proves to be false, Hatfill will still have his Privacy Act case against the feds: The truthfulness of a file has no bearing on determining a violation of the law. But Kristof and the Times will seize on the false information to repel the libel complaint, arguing that the columnist didn’t create the false information, that it came from reliable sources, and that he wasn’t negligent or reckless in repeating it. Indeed, the New York Sun’s Josh Gerstein wrote last month that the Times has acknowledged in court that two of Kristof’s confidential sources were FBI employees, who are, almost by definition, reliable.
Finally, in order to collect damages in a libel victory, Hatfill must prove Kristof’s work damaged his reputation or his ability to make a living. Without a doubt, Hatfill’s reputation declined as the FBI investigation accelerated. But, again, the chronology provided in Hatfill’s Privacy Act complaint argues quite vehemently that it was the government’s reaction to media leaks that cost him a federally funded job he was about to take in Louisiana, not Kristof’s column. According to the Privacy Act complaint, the feds froze Hatfill out of the job in the first days of August 2002. Kristof didn’t explicitly name Hatfill until his Aug. 13, 2002, column.
I’m no Privacy Act expert, something that causes me no embarrassment because nobody else is, either. As a tool of litigation, it largely lay unused until Linda Tripp used it to sue the Pentagon because one of its employees allegedly released information about her to reporters. The government settled for $595,000, according to The New Yorker. Attorneys for government scientist Wen Ho Lee used a similar strategy to beat a settlement out of the government, as well as blood money from several publications.
But I’m enough of an expert to predict that as Hatfill’s twin suits advance, he’ll have to bet on one, and having already punished Kristof and the Times, he’ll capitalize on the Privacy Act’s legal ambiguity and place all his chips there.
******
Hatfill has been charged with no crime related to the anthrax attacks. By my reckoning, Washington Post reporter Marilyn W. Thompson wrote the best Hatfill overview in the paper’s Sept. 14, 2003, edition. If you’ve seen better, ping me at slate.pressbox@gmail.com. (E-mail may be quoted by name unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)
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