On September 26, 2000, the New York Times printed a highly unusual "public accounting" of its coverage of nuclear scientist Wen Ho Lee, held in solitary confinement for nine months before the government's espionage investigation crumbled.
Although the Times editors remained "proud" of their work, they acknowledged that "looking back, we also found some things we wish we had done differently in the course of the coverage to give Dr. Lee the full benefit of the doubt." The Times editors said the paper "could have pushed harder to uncover weaknesses in the FBI case against Dr. Lee." It could have adopted a more consistent tone of journalistic detachment, avoiding the "sense of alarm" conveyed in official reports and by investigators, members of Congress and administration officials.
Two years later, federal officials and the news media have catapulted yet another private citizen into the public glare. As of AJR's deadline, bioweapons expert Steven J. Hatfill had not been charged with last year's deadly anthrax mailings. Officially, he remains a "person of interest"--a legally meaningless term. Again, the news media have ignited debates about fairness and disputes over the press' role in a high-profile national security investigation. Again, journalistic detachment has been threatened or even sacrificed in the rush to disclose titillating details about Hatfill's allegedly failing polygraph tests and bloodhounds reportedly going "crazy" as they neared his apartment.
But this time the stakes are even higher. In the post-9/11 world, many civil libertarians charge that the federal government, bent on ensnaring terrorists, is trampling basic freedoms. Their fears heighten journalists' responsibility to scrutinize government actions, to question every leak, to rethink every assumption. The Bush administration's law enforcement and security rhetoric, peppered with nebulous phrases such as "links" to terrorism, "person of interest" and "enemy combatant," elevates the need for a skeptical press that cherishes clear English and basic fairness.
The crush of daily deadlines and relentless competition make detached reporting arduous, particularly when dealing with a story of great magnitude. But journalists risk becoming pawns in the war against terrorism when they report leaks without independent confirmation, when they relay administration announcements about alleged terrorists without questioning the timing, when they write breathless profiles of individuals who have not been convicted of or even charged with a crime. Heightening the focus on the motives and actions of government officials could protect innocent people's reputations and preserve journalists' integrity.
"This is a time when so many civil liberties have been suspended or threatened, and there are so many shortcuts in the system, that reporters should really be on guard," says Ted Gup, a journalism professor at Case Western Reserve University and a former Washington Post reporter. "They should be exposing those shortcuts, not benefiting from them."
C learly, some newsrooms understand this responsibility and warily recall failures in other high-profile government investigations from the recent past. Already, news analysts and editorial writers are asking whether the FBI has focused on Hatfill to shift attention from its failures in the war against terrorism and its lack of progress in the anthrax investigation. Editorials that chastise the FBI and Attorney General John Ashcroft for accusing Hatfill "by indirection, by implication, by actions if not words," as the Omaha World-Herald puts it, inevitably cite another case of intense public scrutiny of a private citizen: Richard Jewell.
After a pipe bomb exploded at Atlanta's Centennial Olympic Park in 1996, the press designated Jewell, a security guard at the park, as the FBI's "prime suspect." (See "Going to Extremes," October 1996.) The FBI placed Jewell under surveillance and searched his apartment as television cameras recorded every move. Eventually federal authorities cleared Jewell. He sued several media organizations, winning in excess of $2 million, according to published reports.
In an eerie case of déjŕ vu, television cameras rolled again on June 25, 2002, while federal investigators combed through Hatfill's Frederick, Maryland, apartment. Until that time, no major newspaper had named Hatfill as a subject of scrutiny in the anthrax case, although he had been quoted in the past as an expert on bioterrorism.
Hatfill's anonymity vanished after that voluntary June 25 search, captured by reporters and news helicopters. On August 1, the FBI returned, this time with a criminal search warrant, and the media circus returned as well. Ashcroft and other law enforcement officials described Hatfill as one of a number of "persons of interest" but did not identify others or subject them to a public investigation.
As federal authorities intensified their focus on Hatfill, news accounts explored his past association with the Selous Scouts of the white Rhodesian Army and apparent discrepancies in his résumé over academic degrees and military service. Simultaneously, reporters warned of treating Hatfill like Jewell and reminded readers that Jewell had been wrongly spotlighted. The result was sometimes disjointed. Journalists acknowledged the FBI's fallibility. But instead of questioning the FBI's techniques and approach in the anthrax investigation, many reporters focused almost exclusively on Hatfill's alleged faults.
On August 11, the besieged bioterrorism authority tried to salvage his reputation. Hatfill held a news conference to proclaim his innocence and accused federal authorities of trying to make him the "fall guy" for the anthrax deaths. He held a second news conference on August 25 to blast the FBI for its tactics in the anthrax investigation.
A steady stream of coverage continued to keep Hatfill's name in the news. In early September, newspapers reported that Louisiana State University had fired Hatfill from a research position after receiving a Justice Department e-mail instructing the school not to use him on government-financed work. The FBI searched Hatfill's home again on September 11, this time without live coverage because networks were focused on the one-year anniversary of the terrorist attacks.
L. Lin Wood, Jewell's attorney, credits the press with "great improvement" in its reporting on Hatfill vis-ŕ-vis the way it treated his client. "The media has shown greater restraint and has served more as a watchdog than in the Richard Jewell case, where it served as a lapdog for the government," Wood says. "Questions are being asked by the media [such as], 'Why is this information being leaked about Hatfill?' 'Why is he being called a person of interest?' You didn't get any of that with Richard Jewell. The media just marched in lockstep with law enforcement and portrayed him as a bizarre, aberrant individual who most likely was guilty of bombing Centennial Park."
Indeed, some reporters have exposed the apparent fragility of the case against Hatfill. The Washington Post's Susan Schmidt reported that no physical evidence has been found linking Hatfill to the attacks. "FBI officials say Hatfill is receiving the same treatment as others they have investigated," Schmidt wrote. "But to date, they are not known to have subjected others to techniques used in the Hatfill investigation."
The Weekly Standard's David Tell cast doubt on several allegations against Hatfill, including claims about his "racist" past. Hartford Courant reporters Dave Altimari, Jack Dolan and David Lightman provided context by noting that "Hatfill has bounced on and off the FBI's ever-changing list of potential suspects for the past several months. That his house was searched is not that unusual."
And after a Newsweek story reported that bloodhounds "immediately became agitated" upon approaching Hatfill's apartment building, the Baltimore Sun's Scott Shane interviewed bloodhound handlers, who expressed skepticism that a useful scent of the anthrax mailer could have remained on the letters months after they were sent and decontaminated.
Mark Miller, a Newsweek senior editor and lead writer on the bloodhound story, says that his reporters had multiple longtime sources, including those with intimate knowledge of the investigation. He says the August 12 story attempted to explain what prompted investigators to obtain a criminal search warrant for Hatfill's apartment, transforming a cooperative relationship into an adversarial one. "That's why we led with the bloodhounds," Miller says. "We wanted to show a sense of these highs and lows with the investigation. They think they have something, and we point out that once they enter Dr. Hatfill's house, they find nothing."
The story also characterized Hatfill as "eccentric" and "arrogant, with a penchant for exaggerating his achievements." Indeed, the images of a social deviant that irked Wood during the media's reporting on Jewell also have permeated many stories about
"The judgment falls on reporters and editors in framing a profile that is fair to the individual," says Bob Giles, curator at Harvard University's Nieman Foundation and former editor of the Detroit News. "If you make too much out of what you might call odd behavior or eccentricities, then you do raise the specter of fairness."
H atfill's supporters and some journalists, including The Weekly Standard's Tell, contend that the anthrax columns by Nicholas D. Kristof of the New York Times did not meet basic tests of fairness. Kristof crafted an alarming portrait of a scientist who had sparked speculation in the bioterror community. Urging the FBI to "pick up the pace" in the anthrax investigation, Kristof in a May 24 column introduced the scientist, whom he did not name, as a "middle-aged American who has worked for the United States military bio-defense program and had access to the labs at Fort Detrick, Md."
In subsequent columns, Kristof identified this man as "Mr. Z." He wrote that Mr. Z was once "caught with a girlfriend in a biohazard 'hot suite' at Fort Detrick, surrounded only by blushing germs." He asked whether the FBI had examined Mr. Z's possible connections to the anthrax outbreak that sickened more than 10,000 black farmers in Zimbabwe between 1978 and 1980. He asserted that "[t]here is evidence that the anthrax was released by the white Rhodesian Army fighting against black guerrillas, and Mr. Z has claimed that he participated in the white army's much-feared Selous Scouts." He asked investigators whether they had searched the "isolated residence" that Mr. Z had access to the previous fall and suggested that property, and many others, may be "safe houses" operated by American intelligence.
On August 13, two days after Hatfill's first news conference and more than a month after the scientist's name had surfaced in the press, Kristof acknowledged that Mr. Z was indeed Hatfill. Kristof wrote that "[t]here is not a shred of traditional physical evidence linking him to the attacks," but then asserted, without attribution, that Hatfill "failed three successive polygraph examinations since January"--a claim that Hatfill and his defenders vehemently deny.
Hatfill criticized Kristof during his second news conference in late August. Although the scientist is now declining interviews on the advice of his lawyers, his representatives continue to excoriate Kristof and his work.
"Nick Kristof deserves to be horsewhipped," says Pat Clawson, a friend of Hatfill's and a spokesman for him. "He has vilified an American citizen in the pages of the nation's most important newspaper without any factual proof and without having the decency to contact that person for any comment.... He makes numerous blanket assertions of fact without any attribution to sources, and without any attribution, period. That's a very dangerous thing for a reporter to be doing. Frankly, I'm just appalled that the New York Times editors didn't review this stuff prior to publication and ask some serious questions."
New York Times Editorial Page Editor Gail Collins referred questions to Times spokesman Toby Usnik. In an e-mail, Usnik wrote, "We are confident that Mr. Kristof has been responsible and professional in his research and writing.... Each columnist's work is reviewed before it is published, as was the case with Mr. Kristof's columns on Dr. Hatfill."
Kristof declines to comment on Clawson's charges but says he stands by the facts in his columns. He says he chose the "Mr. Z" designation because his columns focused not on Hatfill but on "the way the FBI had muffed the investigation, and the way that the U.S. biodefense establishment had rather recklessly hired people to work with substances like Ebola. For that, it wasn't necessary to mention his name."
Kristof says his experiences as a correspondent in Japan influenced his approach to national security investigations. After a nerve gas attack in 1994, the Japanese police and press focused on a victim named Yoshiyuki Kono as the suspect. Kono was later exonerated. Kristof wrote in a 1995 article that "[f]ew people perhaps have suffered so unjustly at the hands of journalists." He recalls thinking that Kono's reputation would have been further shredded in the United States, where the press corps is more aggressive than its Japanese counterpart and more inclined to identify a suspect by name.
But Kristof says the Japanese press treated the real culprit, the religious cult Aum Shinrikyo, gently. "If the press had aggressively covered the accusations of kidnapping and murder against the sect, made since 1989, then the nerve gas attacks might have been avoided," Kristof wrote in his 1995 article.
He now characterizes coverage of national security investigations as an "exceedingly difficult" ethical dilemma. "There are lots of cases that should leave us remembering that we're dealing with real people," he says. But, overall, his Japan experiences taught him that in major national security cases, "the press is best off investigating, and investigating thoroughly."
While Clawson hones his contempt on Kristof, he also objects to many other media accounts. "Now we've got Ashcroft standing up there, pointing a finger at my friend, saying, 'person of interest,' " Clawson says. "No charges, but 'suspicion.' It's a rerun of the goddamn 1950s and the McCarthy era. Except now instead of McCarthyism, we have Ashcroftism. That's the story. And that's the story that the press corps here is afraid to take on because it requires some work and it will rumple some feathers."
Clawson contends that Ashcroft and other federal officials have violated the Code of Federal Regulations, which specifies what information Justice Department personnel can and can't release to the news media in criminal and civil cases.
Bryan Sierra, a spokesman for the Justice Department's criminal division, cited those same federal regulations and department policy in declining to respond to Clawson's criticisms. "There is no reason to engage in a dialogue," Sierra says. "It does not make sense that if you are being criticized for talking too much that you would respond to that."
The regulations offer reporters a glimpse into how the Justice Department is supposed to deal with the press. Knowledge of these regulations can alert reporters to occasions when federal officials are disseminating information improperly. According to the regulations, "striking a fair balance" between protecting individuals accused of crime or involved in civil proceedings and the public's understanding of controlling crime and administering government "depends largely on the exercise of sound judgment" by those responsible for enforcing the law and by the media.
The regulations further state that Justice Department disclosures should include only factual matters and not subjective observations. It says department employees should refrain from disclosing investigative procedures such as polygraph examinations--which have been cited in Kristof's columns and in other media reports about Hatfill.
In addition, the United States Attorneys' Manual, posted on the Justice Department Web site (www.usdoj.gov; click on publications), establishes specific guidelines consistent with the federal regulations. The manual generally prohibits Justice Department personnel from responding to questions about the existence of an ongoing investigation or commenting on its nature or progress.
But it does make exceptions in matters that "have already received substantial publicity, or about which the community needs to be reassured that the appropriate law enforcement agency is investigating the incident, or where release of information is necessary to protect the public interest, safety, or welfare."
The manual reiterates the federal regulations' assertion that Justice Department personnel should avoid referring to investigating procedures, such as fingerprints, polygraphs and ballistic tests, and should not disclose a defendant's refusal to submit to such tests. Nor should department personnel provide advance information to the media about the execution of a search warrant or arrest warrant.
Once a criminal suspect is charged, the guidelines specify that Justice Department employees may publicize information such as the substance of the charge, the circumstances surrounding the arrest, the length and scope of the investigation, and the defendant's name, age, residence, employment, marital status and similar background information.
Juliette Kayyem, a Justice Department attorney from 1995 to 1999 and a counterterrorism expert at Harvard University's Kennedy School of Government, says the most disastrous cases during Janet Reno's tenure as attorney general in the Clinton administration were those investigated in public--the cases that ensnared Jewell and Wen Ho Lee.
Kayyem, who served as a legal adviser to Reno and as counsel to the assistant attorney general for civil rights, urged Ashcroft to learn from his predecessor and turn off the microphones as his department investigates the anthrax mailings and other post-September 11 cases. "Since embarking on their antiterrorism mission, Ashcroft and his deputies have displayed a misplaced sense of secrecy," Kayyem wrote in a July opinion piece in the Christian Science Monitor. "They are loud during the investigation (when information should be kept quiet) and remarkably secret after they have acted (when constitutional and due-process norms suggest that the public has a right to know)."
As government officials leak or dribble information regarding their investigations and actions, experts warn reporters to treat disclosures with caution. Aly Colón, a member of the ethics faculty at the Poynter Institute, recommends using anonymous sources sparingly--only when there is no other way to obtain the information and the information is valuable to the public.
Colón cautions reporters to make sure they fully understand the situation they're describing. "One of our first questions that we advise people to ask here at Poynter is, 'What do I know, and what do I need to know?' " Colón says.
That includes putting disclosures into context. If investigators are searching the home of one "person of interest," did they also search the homes of other persons of interest? Did the bloodhounds' agitation necessarily indicate Hatfill's guilt, or might they have displayed such behavior for a reason entirely unrelated to anthrax?
"Reporters need to remember that when they're dealing with law enforcement officials, those investigators have a purpose, which is to solve the crime," adds Giles of the Nieman Foundation. "They're not particularly interested in journalistic fairness. They're interested in prosecuting a suspect."
Matthew Felling, media director at the Center for Media and Public Affairs in Washington, D.C., warns that exclusives in high-profile investigations often carry consequences. "Journalists might unwittingly become a participant in the investigation, which is not the journalist's role, and they should be wary of exclusives given to them," Felling says.
And clarity of language is critical. On television broadcasts and in print, reporters have repeated the government's assertion that Hatfill is not a "suspect"; rather, he is one of 20 or 30 "persons of interest." But what exactly does that mean?
Justice Department spokesman Sierra says he cannot discuss the Hatfill investigation, but he does offer insight into the meaning of the phrase "person of interest." Though used infrequently, the phrase is not new to the anthrax investigation.
"Generally, there may be an effort to use that term to deemphasize the media's description of a person as a suspect or target if we feel that is inaccurate," Sierra says. No textbook definition of "person of interest" exists, and the phrase has no legal standing. Still, Sierra says it can help clarify that a person is not a suspect or target. "A lawyer doesn't deal with the same uses of language that reporters and spokespeople do," he says. "Part of the difficulty is the press and prosecutors have different terms."
Imprecise language can carry unforeseen connotations. Hatfill and his supporters clearly don't consider the phrase "person of interest" a benign attempt to soften the focus on him. Rather, they see it as a sinister effort to cast him as the anthrax killer without actually charging him.
Joseph diGenova, a former U.S. attorney in Washington, D.C., says labeling someone a "person of interest" is "such malarkey that it's ludicrous," while Wood, Jewell's attorney, calls Ashcroft's use of the phrase an act of "absolute irresponsibility. When the attorney general of the United States calls you a person of interest in connection with the FBI and terrorist attacks, life as you know it is basically over."
The Baltimore Sun's Shane, perplexed by the term "person of interest," tried to offer readers a more meaningful description. He opted to say that Hatfill was "under scrutiny," which he clearly was.
Wood prefers that law enforcement officers refrain from stating that a private individual is under investigation. But if intense media attention compels officials to speak, Wood urges a "simple and honest" answer designed to inflict the least amount of damage. He suggests government officials acknowledge that a person is under investigation, state why they're under investigation, and remind the public that nothing should be inferred from that because it's standard procedure to check out people in certain situations.
"Person of interest" is just one of several nebulous terms that have gained prevalence since the terrorist attacks and raise questions of fair reporting during national security investigations. The Justice Department has designated two Americans, Jose Padilla and Yaser Hamdi, as "enemy combatants." By calling detainees enemy combatants, federal authorities have declared they may be held without access to courts or attorneys.
But a September report by the Lawyers Committee for Human Rights objected to that designation. "The administration has in fact been using the term 'unlawful enemy combatant'--a term not found in international law--as a kind of magic wand, waving it to avoid well-established standards of U.S. and international law," the report declared.
Hamdi, a Louisiana-born U.S. citizen of Saudi lineage, was captured by Northern Alliance forces in Afghanistan and transferred to the U.S. base at Guantanamo Bay in Cuba, where officials discovered his citizenship. As a result, he was moved to a military base in Virginia, where he is being held, without charge or trial, as an enemy combatant.
The first press references to Hamdi came in early April, when he was flown to Norfolk. But coverage of the unfolding legal battle over his classification as an "enemy combatant" has predominantly played out in major papers, including the Washington Post, the New York Times and the Wall Street Journal. Despite the high-stakes legal battle and its implications for the rights of U.S. citizens, most papers have largely ignored Hamdi's plight.
In stark contrast, Ashcroft's announcement of Padilla's capture was splashed across front pages and broadcast prominently everywhere. Padilla, a Brooklyn-born U.S. citizen, was arrested in Chicago on May 8 and initially held as a material witness in connection with an alleged conspiracy to create and use a radioactive "dirty bomb." One month later, he was transferred to military custody in South Carolina as an enemy combatant and denied further access to his attorneys.
Ashcroft opted to make a televised June 10 announcement about Padilla from Moscow. As the Washington Post later described it, "Peering grimly into a Russian camera and bathed in an eerie red glow, Ashcroft broke away from meetings in Moscow to announce that the United States had 'disrupted an unfolding terrorist plot' that could have caused 'mass death and injury.' "
On June 12, a front-page USA Today story headlined "Threat of 'dirty bomb' softened" reported that Ashcroft had overstated the potential threat. "Ashcroft's remarks annoyed the White House and led the administration to soften the government's descriptions of the alleged plot," Kevin Johnson and Toni Locy wrote. The Washington Post followed on June 13 with another story questioning whether Ashcroft's remarks were "unduly alarmist" and quoted an unnamed senior administration official as saying, "We work very hard to inform yet not alarm." The official added that the story "became a lot bigger than any of us thought it would."
But many initial press accounts seemed to assume the veracity of Ashcroft's statements. Some reports asserted the administration had designated Padilla an "enemy combatant" without explaining the unusual use of the phrase or questioning why and how Padilla acquired such a designation.
"One of the things that always has worried me is how much we, being journalists, tend to assume the FBI, or the DEA, or local law enforcement people are right and that they indeed have captured the guilty party," says Joann Byrd, editorial page editor at the Seattle Post-Intelligencer and chair of the American Society of Newspaper Editors' ethics and values committee. When Ashcroft announces that law officers have averted a tragedy, obviously journalists need to report that. But simultaneously, Byrd says, they should try to assess the authorities' version of events.
One way journalists can hold agencies accountable is to challenge their use of language and to avoid using jargon or shorthand. Law enforcement officials have detained others in the United States suspected of "links" to terrorism, a claim repeated in newspapers and on television.
Federal authorities arresting members of a suspected al Qaeda "sleeper" cell in suburban Buffalo said they were investigating whether the cell had "links" to similar groups of alleged sleeper terrorists arrested in Detroit and Seattle.
But "links" can connote varying degrees of guilt or innocence. Harvard's Kayyem says reporters should more aggressively press federal authorities to explain these so-called "links" to terrorism, al Qaeda and Islamic radical groups.
"What's incumbent on reporters, and what has gotten me frustrated, is they don't follow up that issue of links," Kayyem says. "What is that link? Not only is 'links' not a legal standard, I don't think it should be a media standard."
In the anthrax investigation and in other post-9/11 probes, the federal government is forcing journalists into the uncomfortable position of seeming to serve as advocates for those who may seek to harm Americans. But now, even more than during the investigations of Richard Jewell and Wen Ho Lee, fears about Americans' civil rights have cast journalists not only as dispensers of information, but also as defenders of the Constitution.
As professor Ted Gup wrote in a Washington Post Outlook piece, "It is not just Hatfill who is entitled to a higher standard of prosecutorial or journalistic conduct than we have seen in the past few weeks. We all are. Each slipshod case whittles away our collective liberties, our self-respect, our confidence in the legal system. The press, too, is at risk--its credibility in jeopardy, its independence on trial, its privileged position under the First Amendment left exposed."
Another after-the-fact public accounting could come too late to protect the reputations of innocent Americans, too late to preserve the integrity of the legal system, too late to prove the media's impartiality.
But some observers predict that journalists covering the anthrax investigation will feel compelled to amend their alarmist tones and ominous implications. Says Kayyem, "If it's not Hatfill, they're going to be doing another mea culpa like they did after Wen Ho Lee."