Monday, October 25, 2004

Waivers and whistleblowers

Ashcroft's campaign against whistleblowers continues to have remarkable success. From an article by Seth Sutel of the Associated Press:

"Clark Hoyt, the Washington editor of Knight Ridder, the second-largest newspaper company in the country, said that in the past few weeks he has seen two cases of people at first wishing to provide information for stories on a confidential basis, then backing out later for fear that they would be investigated or that their identity might be discovered from a subpoena of the reporter's phone records.

'I think there is no question that there is greater anxiety among sources about talking to journalists,' Hoyt said."


A dangerous erosion of freedom of speech is proceeding and is largely being ignored. The most recent manifestation of it concerns the case of Steven J. Hatfill, who is suing the government over the shameful way he was treated in being blamed for the anthrax attacks. Ashcroft's Justice Department has agreed to distribute waivers to federal investigators who may have discussed the case with journalists. Hatfill's lawyers can then use the signed waivers to attempt to convince journalists to disclose who gave them information concerning Hatfill. Notice how completely backasswards and artificial this whole process is. If Ashcroft really wanted to cooperate in disclosing what information the government turned over, he could simply order an internal investigation and give the names to Hatfill's lawyers. Instead, he makes everyone go through this extremely odd dance of the seven veils which will almost certainly lead nowhere. The journalists will presumably only discuss those people who signed the waivers, which list presumably will not include those who disclosed information. Hatfill's lawyers will have to work backwards from those who didn't sign the waivers to try to discover who the leakers were. The whole thing is crazy, and can serve only one purpose. Ashcroft is establishing the precedent of using 'voluntary' waivers in any case where informants in the government are involved. In this case, the informant was almost certainly acting with official sanction (the government was clearly trying to defame Hatfill for political purposes), but the same principle would apply in cases of whistleblowers who were acting without authorization. Now that the precedent has been established, the threat exists in any whistleblower case that a blanket series of 'voluntary' waivers will be distributed to everyone who might have turned over information to journalists. Of course, the waivers aren't really voluntary, as not signing one would presumably affect your job security, and signing one puts you at high risk of being outed by the journalist you talked to. This danger is particularly acute if Ashcroft manages to confirm through the Judith Miller and Matt Cooper cases that he can go on fishing expeditions with journalists to find the names of informants, with failure to turn over the names sanctioned by imprisonment for contempt of court. He can thus pin the whistleblower between the pinchers of the waiver and the threat of putting the stubborn journalist in jail. A whistleblower who wasn't prepared to go to jail wouldn't take the risk.


The key to seeing this is a conspiracy to attack whistleblowers is the extreme artificiality in each stage of Ashcroft's plan. The whole Plame case is ridiculous, as Bush could simply order the name of the informant to be disclosed. The use of waivers is completely unnecessary, and makes you wonder what Ashcroft is really up to. When you couple that with the fact that his prosecutor is attacking Miller, who didn't even write on the Plame matter and just possibly listened to a telephone conversation, and has apparently completely ignored Novak, the real villain of the piece, the story looks even stranger. On top of all that, we have the Hatfill case, where waivers are again being used where they are completely unnecessary. By the time the dust has settled, Ashcroft will have established the pattern of using blanket 'voluntary' waivers in all cases where government informants may be involved, and will be able to threaten journalists with jail if they don't go along with his fishing expeditions. Neither Ashcroft not his boss Bush will ever have to worry about whistleblowers again.

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