‘Anthrax’ Case: Did ‘NYT’ Editor Warn Kristof About Column?

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Lawyers for a former Army scientist suing The New York Times for libel said Friday that an editor at the paper warned columnist Nicholas Kristof to remove incriminating passages from a column that raised suspicions that Steven Hatfill was involved in the 2001 anthrax attacks.

Kristof left the passages in the May 2002 column despite the warning, said lawyers for Hatfill, who claims that a series of Kristof columns that year falsely implicated him as the culprit in the anthrax mailings that left five people dead. An elderly Connecticut woman was among the victims.

The editor’s warning to Kristof was voiced in an e-mail uncovered during the extensive pretrial discovery process, said Mark Grannis, one of Hatfill’s lawyers. Grannis did not give specifics on the passages at issue outside court; he said some details of the case have been sealed.

The accusation came as a federal judge again heard arguments on whether to dismiss the lawsuit. The newspaper’s lawyers argued that under federal libel law, Hatfill should be considered a public figure. The law makes it more difficult for public figures to prevail in libel cases.

Hatfill’s lawyers dispute that their client should be classified as a public figure. But even if he were, they said, they have uncovered flaws in Kristof’s reporting that are so flagrant that Hatfill would still win his case.

Grannis said that in addition to the editor’s warning, several of Kristof’s sources testified in pretrial depositions that they did not provide the information Kristof has said they did.

“Mr. Kristof made things up,” Grannis said. “What Mr. Kristof reported was not just false, it was embarrassingly false. It was outrageously false.”

Five people were killed and 17 sickened by anthrax that had been mailed to lawmakers on Capitol Hill and members of the news media in New York and Florida just weeks after the Sept. 11, 2001, terrorist attacks.

The victims include Ottilie Lundgren, 94, of Oxford, Conn., who investigators say died after opening anthrax-contaminated mail that passed through a Connecticut mail distribution center.

The case remains unsolved.

Kristof’s columns initially referred to Hatfill only as “Mr. Z”; Hatfill was identified by name only after he held a news conference in August 2002 to denounce rumors that had been swirling around him.

Kristof has said his purpose in writing the columns was to prod a dawdling FBI investigation and that he said in several columns that Mr. Z enjoys a legal presumption of innocence.

Hatfill claims that Kristof’s columns revealed enough details for people to figure out who he was despite withholding his name.

Times lawyer Lee Levine said Hatfill is being hypocritical when he argues that he is not a public figure. On the one hand, Hatfill contends he was so well known that people could piece together his identity from the clues in Kristof’s “Mr. Z” columns. On the other hand, they argue that he was essentially an unknown when it comes to his status as a public figure under libel law.

“You can’t have it both ways,” Levine said.

Levine said Hatfill qualifies as a public figure because he had injected himself into the national debate about bioterrorism years before the anthrax attacks. He had occasionally been quoted as an expert in the media, and even once donned a chemical suit for a magazine photo.

U.S. District Judge Claude Hilton said he will rule on the newspaper’s motion soon. The trial is scheduled to begin Jan. 29.

Hilton previously ordered Kristof to disclose his confidential FBI sources so Hatfill could pursue his claim. Kristof refused, and in response Hilton barred Kristof from relying on any information provided by those sources in his defense.

Hatfill’s lawsuit was dismissed by Hilton in 2004 but reinstated by a federal appeals court. Hatfill is also suing former Attorney General John Ashcroft, the Justice Department and others in U.S. District Court in Washington claiming they violated Hatfill’s civil rights.

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