No One Has Cause To Name Names in Steroid Case

Every big steroids case these days ends up with the names of athletes getting out. The Balco case led to Barry Bonds and Gary Sheffield (among others) making the papers, as a defense attorney leaked supposedly secret grand jury testimony. The names of athletes said to have bought steroids and hGH in the Signature Pharmacy case have been dripping their way out in what has something quite like the appearance of a coordinated series of leaks.

So on Monday, when Drug Enforcement Administration officials announced Operation Raw Deal, an anti-steroid investigation that targeted the online sale of Chinese steroid and human growth hormone powders and resulted in 124 arrests, one question prevailed. This was a massive investigation, coordinating seven federal agencies, 27 states, and nine foreign nations. Rusty Payne, a DEA spokesman, said at a press conference that "hundreds of thousands of people" could be involved.

Naturally enough, reporters wanted to know if famous athletes were involved, and if so, whether their names would be released to the public or to their employers. "If we come across names, are we going to provide them to the leagues?" he said. "That is going to be the decision of the Department of Justice and the United States attorney's offices that have those aspects of the case."

This remark — as well as Payne's statement to Yahoo! Sports that "If you are one of those people, you could get a knock at your door," and the DEA's statement that it is compiling the names of steroid buyers into a massive database — had predictable results. Pitchforks were raised, and torches lit on fire. Dan Wetzel of Yahoo!, for instance, wrote Monday that "the database could become the ultimate tool for the NFL and MLB" leading to a "giant cleansing of sport." Yesterday, he wrote that "the NFL and MLB must gain access to the database."

Let's leave aside the issue of whether the federal government should release the names of people suspected of buying drugs online to their employers and/or the public, because it's a silly one; obviously they shouldn't. The interesting question is this: How would they do so?

In Wetzel's second column, Payne was quoted as saying, "We are not going to be the ones that make the decision whether to provide names to organizations and leagues. Those decisions are going to be made by the individual U.S. attorneys who are doing the prosecuting." (Note that this is the second distinct explanation of who will decide whether or not to release names.)

Tom Carson, a representative for Kevin O'Connor, Connecticut U.S. attorney, seemed perplexed when I inquired into how the decision would be made, and under what authority prosecutors would disclose the names of people not charged with a crime to the public. When I suggested that it was unlikely that a reporter arrested for buying a $10 bag of drugs in a park would have his editor contacted, the representative acknowledged the point and brought up "the MySpace angle," telling me about steroid dealers who had used the online social networking site to sell drugs to teenage athletes. He then suggested I contact the Department of Justice, and he also explained that the District of Connecticut U.S. attorney's office hadn't actually participated in Operation Raw Deal, despite the DEA's assertion that it had. Connecticut, he said, had participated in an operation led by the FBI.

A spokeswoman for the DOJ was perplexed when I inquired into how the department would decide whether or not to disclose the names of suspected steroid buyers, and under what authority it could do so. She suggested that I contact the DEA.

Steve Robertson, a DEA special agent, told me that the decision would be made between the DEA officers handling the case and the relevant U.S attorney's office, and that the DEA was interested in the lists simply as evidence, the sort that might come out in the course of a normal prosecution. He also added that in a high profile case, DEA officers and U.S attorneys might decide to reach out to the DOJ before making any decision on how to use evidence.

Payne, the DEA spokesman, later sent me an email noting that "Federal rules (such as Rule 6(e), Federal Rules of Criminal Procedure) generally prohibit the disclosure of any grand jury information to those outside of law enforcement ...we will follow the rules and the laws that govern the disclosure of information and proceed accordingly."

So, in sum: The DEA says the question of whether or not to disclose the names of people who have been not been charged with crimes is either up to U.S. attorneys, or U.S. attorneys and the DOJ. One U.S. attorney says it's up to the DOJ. The DOJ says it's up to the DEA. And the DEA says it's up to the DEA, U.S. attorneys, and perhaps the DOJ, but that federal rules would generally prohibit such disclosures anyway.

There is a good chance that there will be no pitchfork-bearing mob descending on Washington demanding the database. The mob would have no idea in which direction to brandish its torches.

All of this isn't just a gleaming specimen of bureaucracy, though, but a case lesson in the dangers of witch hunting. Right now, the government doesn't seem to be able to give a straight answer on who decides whether or not people not accused of crime will be disclosed as suspected steroid users.

That's dangerous, because disclosing the names would be, by definition, unusual. As Robertson, the special agent, said, "Normally, if we have information about someone associated with a criminal, we don't go around advertising that unless we're looking to make arrests." The example he gave was that if I sold a criminal a car, there would be no reason for anyone to drop by and let me know I'd sold a car to a criminal. If this is so, then we should expect that baseball executives — who have no legitimate interest in reviewing grand jury evidence against steroid dealers — will not be given access to this material.

Happily, baseball has not contacted the DEA to request the prospective database; unhappily, this story is probably just beginning. Operation Raw Deal was just the latest in a series of complex drug raids, carried out with the assistance of a DEA division that uses data-mining software to target online dealers and bearing pseudo-military names like Operation Impunity and Operation Tar Pit. It's also not over yet: Payne tells me that at least two additional districts chose not to participate in Raw Deal but still may make arrests. A series of events has left professional sports in the middle of the war on drugs.

tmarchman@nysun.com