Anthrax whodunit: Is it a cold case file?

A recent decision by the US Court of Appeals for the Fourth Circuit is an ironic reminder that one of the greatest whodunits in recent history remains a threat to the safety of Americans. Steven Hatfill, the man labeled a "person of interest" in the anthrax investigation, has been allowed to go forward with his defamation suit against The New York Times. Clearly the anthrax investigation still weighs on Mr. Hatfill far more than it does on anyone else - and that's a shame.

The anthrax attacks were not only our first national experience with mass bioterrorism, they represent the greatest unsolved act of terrorism our country has faced since 9/11. Yet, while the 9/11 attacks in New York and Washington continue to color national discourse, the anthrax mailings seem to have retreated from memory. The failure to apprehend or even identify a suspect represents a major failing for law enforcement and points out a serious problem in the investigation.

It is worth remembering that for all the horror of 9/11, the question of culpability has been little in doubt. Within days, our government determined who the responsible parties were. The anthrax killings, however, remain unsolved. Indeed, despite the attacks having been leveled at the country's political and economic nerve centers, and an unprecedented response by federal and state agencies, investigators seem no closer today to identifying the guilty than they were when the first envelopes showed up at NBC, the New York Post, and other news outlets four years ago.

Coming on the heels of 9/11, each new reported case of white powder fed a growing perception that the entire nation was under siege. By the time the deadly mailings mysteriously stopped, more than 22 cases of anthrax infection had been reported from New York to Florida. Five of the individuals exposed died. Two federal mail processing centers were completely shut down, and at least 21 additional facilities were contaminated. Anthrax-laden envelopes also caused the evacuation of the Hart Senate Office Building in Washington, D.C., and set off a massive public health and safety response from multiple agencies. The attacks prompted a series of government reports analyzing our vulnerability to this new specter of biological terrorism.

What can be gleaned from the press reports of the anthrax investigation is not reassuring. There was the initial stream of conflicting theories and tantalizing clues, followed by disturbing accounts of missed investigative opportunities, and then mounting public pressure. This was compounded by an almost surreal television spectacle: the live broadcast of federal agents executing a search warrant on the home of the hapless Hatfill.

In the three years since, scant progress has been reported. In 2003, a pond in Maryland was drained and searched, but no anthrax was found. In 2004, a doctor's home was searched, but nothing came of it. There have been no arrests or indictments. In September, the Washington Post reported that the investigation, dubbed "Amerithrax," has actually been downsized. Investigators are now busy compiling a report summarizing their efforts. As the months pass, one might conclude that an investigation of vital national significance is adrift, or worse, relegated to the cold case file.

Large investigations often require new developments to sustain them. The Unabom investigation, to which I was assigned as a prosecutor, had been languishing for years. It was only after the bombings resumed and a core group of new investigators was assembled, that progress was made. Even then, it took the publication of Theodore Kaczynski's manifesto to set the climax in motion.

But it seems that the anthrax investigation has never recovered from its early missteps. This is partly because then-Attorney General John Ashcroft openly targeted Hatfill as a "person of interest," signaling early on that politicians were in charge. Valuable investigative resources had to be committed to meet expectations, regardless of whether it made sense. Opportunities were undoubtedly lost as a result. Stung by the ensuing criticism, the government retreated into a defensive posture. Unlike the Unabom investigation, where field agents were able to retain some measure of control, the anthrax investigation has become more centralized; investigators receive assignments and compile reports for their superiors in Washington. A subtle shift from proactive investigation to damage control has taken place.

So as we watch the progress of Hatfill's effort to restore his reputation, we should use the unfolding of Hatfill v. The New York Times as an opportunity to renew the public debate about the anthrax investigation, including the proper role of the press. We should ask our government what it is doing to identify and apprehend those responsible for this horrific and unsolved act. We might ask how we can be expected to fight a war on terror if we have not yet identified all our enemies.

Let us just hope we will not have to wait to see what information comes out of the defamation lawsuit to get some answers. Or shall we rely on Hatfill's lawyers to do our government's work for us?

• Stephen P. Freccero is a lawyer and former federal prosecutor in private practice in San Francisco. From 1993 to 1998 he was assigned to the Unabom task force and served as Special Attorney to US Attorney General Janet Reno in the prosecution of Theodore Kaczynski.