PressEthic

The New York Times has been in a three-year battle over confidential sources and the case just won't go away.

According to today's Observer, "[o]n Oct. 13, attorneys representing Dr. Steven Hatfill filed a motion in the U.S. District Court in Alexandria, Va., seeking to compel The Times to identify five sources used by op-ed columnist Nicholas D. Kristof."

Remember when you were scared to open your mail and find some mysterious white powder dusting your fingers? In 2004, the FBI named Hatfill a "person of interest" in the 2001 anthrax attacks. Hatfill blames this on Kristof, who wrote about a "Mr. Z" in his New York Times columns. He outlined Mr. Z's resume and wrote that he had a hunch that he knew whodunit, but the FBI was slacking on investigating him. John Ashcroft announced that they were pursuing Hatfill in August 2002. The anthrax scientist held a press conference the next day, asserting his innocence. Kristof revealed that Hatfill was Mr. Z in a column published that week.

It's important to note that Kristof wrote that Hatfill deserved the "presumption of innocence" and that "there is not a shred of traditional physical evidence linking him to the attacks.''

No charges were brought against Hatfill. But he still filed a defamation suit against the New York Times Co. and Kristof in July 2004. The case was originally dismissed, then reinstated by a federal appeals court.

In a July 2006 deposition, Mr. Kristof refused to name his sources. But he gave basic descriptions: an “anthrax expert,” two F.B.I. employees, a friend of Dr. Hatfill’s and a “scientist,” according to the Observer.

NPR's On the Media interviewed Kristof in 2002. Brooke Gladstone broached some interesting points:

BROOKE GLADSTONE: We've seen this sort of thing before -- a presumption of guilt before the facts are in. What appears to be the sweating of suspects by law enforcement through anonymous leaks in the press. There are the notorious examples of presumed Atlanta bomber Richard Jewell and presumed spy Wen Ho Lee. Now there's presumed anthrax attacker Steven Hatfill. Nick Kristof is a columnist for the New York Times.

NICK KRISTOF: You know if you look back at how the media's handled various cases, then we really have at times ruined the lives of people by tossing their names out there before they've been subject to any kind of criminal process, and when our presumption has to be that they're innocent and just caught in this incredible nightmare.

BROOKE GLADSTONE:Yet over the past few months, Kristof has assiduously compiled and reported an impressive but entirely circumstantial case against the man he called "Mr. Z." His unique access to the precise kind of anthrax used in the attacks that killed 5 people; his poor showing on 3 polygraph tests. He reported "Z's" own claim to have taken part in the actions of the White Army in Rhodesia where there is evidence that in the late '70s anthrax was released and sickened 10,000 blacks. But Kristof never used Steven Hatfill's name, and he says his intention never was to convict "Mr. Z."

NICK KRISTOF: It was to light a fire under the FBI. I think the FBI did a catastrophic job for months and months and months. I think they weren't prepared to deal with a high tech scientific investigation like this; it took 'em months to catch up.

BROOKE GLADSTONE:And to keep it hot for the FBI, Kristof piled on the circumstantial fuel -- "Z's" foreign trips; his alias and stray remarks that have since been rebutted in other newspapers. Kristof's impatience was fed by experts in the community of bio-terror and within the FBI itself, but he always stopped short of naming "Mr. Z," even after others did, until Hatfill himself came forward.

NICK KRISTOF: It's a very awkward position -- this is a crucial public policy issue and a fundamental matter of avoiding terrorism in the future as well, and so we have to investigate, we have to report it, and yet we don't want to make the mistakes that we did in the past.

BROOKE GLADSTONE:The mistakes cited by Hatfill's lawyer was the media frenzy over Richard Jewell, an innocent man who became a prime suspect in an Atlanta bombing during the 1996 Olympic Games. Suspicion fell on Jewell early in the investigation, but as in Hatfill's case, there was no physical evidence, and so anonymous officials in law enforcement -- perhaps the police - perhaps the FBI or both -- fed the press with hints and suppositions. When Richard Jewell was invoked in Hatfill's case, many in the media declared that he was being railroaded in the very same way, but reporters on this case did not rush what they were learning into print; though they knew his name, they held back for months.

So when do we know when to reveal the suspect? Gladestone also said the FBI uses the media to sweat out its suspects. Is that fair? She concludes:

Nick Kristof helped to energize what some call "aggressive investigation," others a "witchhunt" with his portraits of the suspicious "Mr. Z." Perhaps the best any reporter can do is consider the facts and stick to the "Z" until the "Z" comes forward.

But, despite noble efforts to catalyze the FBI and the suspect, a suit was brought against Kristof and the Times. Kirstof is no longer liable in the case (the laywers at The Times still need to worry), but the Hatfill situation isn't exactly encouraging journalists to protect anonymous sources.

A judge is expected to make a ruling this week, so stay tuned.