Supreme Court refuses to review case of FBI anthrax informant

WASHINGTON (AP) _ A man fired after secretly helping the FBI investigate an anthrax threat lost in the Supreme Court on Monday. <br><br>The court turned down a chance to decide if First Amendment free

Monday, January 14th 2002, 12:00 am

By: News On 6

WASHINGTON (AP) _ A man fired after secretly helping the FBI investigate an anthrax threat lost in the Supreme Court on Monday.

The court turned down a chance to decide if First Amendment free speech rights cover a public employee's cooperation with law enforcement, even when that assistance is against the wishes of their bosses.

Since Sept. 11, justices have not agreed to review a case that directly implicates terrorism. They declined to take this one without comment.

At the heart of the case is the 1998 investigation of man who wrote a book on how to make anthrax and other weapons. He also was questioned in the recent anthrax mailings but not charged.

The FBI was told about Timothy Tobiason by an unlikely source, an investigator for poor criminal defendants.

Daniel Rupp was praised by his employer, the federal public defender in Wichita, Kan., for notifying the FBI after Tobiason allegedly talked to him at a gun show about anthrax and his angers with government.

But Rupp was told to let federal agents handle the matter from there because of a potential conflict. He worked for an agency that provided legal defense for people investigated by the FBI.

Months later, he lost his job after the public defender's office learned that Rupp had met another half dozen times with the FBI and had corresponded with Tobiason about his anthrax plans as part of the investigation, court records show.

``This case is more than a run-of-the mill government employee speech case. It is a case presenting a public issue of enormous importance to the nation,'' Rupp's attorneys wrote in urging justices to hear his appeal.

A judge had dismissed his case, and the 10th U.S Circuit Court of Appeals also said the firing was proper. The appeals court noted that he was not fired for reporting the alleged threats. His other involvement, after telling his boss he would no longer help the FBI, was not free speech, the appeals court said.

``Once Mr. Rupp had tipped the FBI, it was certainly capable of carrying out an investigation of Mr. Tobiason with or without Mr. Rupp's help,'' the court said.

That's not necessarily so, argued a group of law officers backing Rupp. The Federal Law Enforcement Officers Association said that someone with access to alleged terrorists cannot easily be replaced.

The association said in court filings that Sept. 11 and the later anthrax deaths ``have brought home to the public the threat of terrorism and the effect that the use, or even the threat of the use, of weapons of mass destruction can have on the populace, the economy and the government.''

Rupp, a weapons collector who frequented gun shows, said Tobiason told him in 1998 that he had used gelatin to grow an anthrax culture. Rupp also said the man was angered that national newspapers, including The National Enquirer, were not giving him attention.

Anthrax was discovered in October in Florida at the headquarters of the company that publishes six supermarket tabloids, including The National Enquirer. A photo editor died from breathing anthrax spores in a tainted letter.

Tobiason was questioned earlier by law officers but not accused of any wrongdoing.

Part of Rupp's case rests on the constitutional importance of government getting information, not just his right to give it.

His lawyer said the appeals court ``ignored the compelling interest of (Rupp), the public and law enforcement in the free flow of information important to the protection of society.''

Rupp had been hired in 1994 by the public defender. Three years later he met Tobiason at a gun show, then in 1998 Rupp said they talked at another gun show about anthrax. The following day, he contacted the FBI.

The public defender's office told the Supreme Court that the firing was about him ``surreptitiously'' helping the FBI. Rupp could no longer be trusted for sensitive matters involved in his job because of the deception, the office maintained.

The defender ``was attempting to avert an ethical and client relations disaster before it occurred,'' the attorney for the agency, Alan L. Rupe, wrote.

The case is Rupp v. Phillips, 01-685.