[More on Wen Ho Lee]
The long investigation of the leak involving CIA agent Valerie Wilson has proved bruising not just for the White House and Lewis "Scooter" Libby — who pleaded not guilty last week to charges of perjury and obstruction of justice — but also for the journalists involved, who were forced to disclose the identity of confidential sources.
But even worse news may be coming for reporters. A civil suit by the former nuclear scientist Wen Ho Lee has been wending its way through the legal system and, if the court decisions so far — including an appeals court ruling on Thursday — are any indication, the ability of reporters to shield their sources may suffer an even harsher blow.
It is a highly contentious case that reflects, those involved say, two critical principles that are now in conflict:
Should ordinary citizens have the right to know the names of confidential sources that have accused them of crimes, or should the press be able to keep sources anonymous to protect whistle-blowers and uncover government wrongdoing?
Lee's attorneys contend that his suit, aimed at forcing reporters to disclose confidential sources for stories they wrote about the investigation of Lee on espionage allegations, will protect citizens from being unfairly attacked by government officials behind a veil of anonymity.
Press watchdogs argue that a victory for Lee will further erode traditional journalistic shield privileges, making it harder for the media to uncover evidence of malfeasance because officials will be loathe to share sensitive information.
"I see this as an even graver threat than the Plame (Valerie Wilson) case to a reporter's right to know," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "Really, the Plame case was almost a freak instance. The Lee case is far more of a problem in the long term because it is a civil suit and involves more routine reporting issues."
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Of particular concern in the Lee case is that the reporters involved are threatened with monetary fines — $500 every day they refuse to disclose the information demanded — which could seriously affect the reporters themselves and the publications for which they write.
"That's one of the things that does make the Lee case even more troubling than the Plame case, because not only is it a civil suit but it's about money," said Tom Rosenstiel, the director of the Project for Excellence in Journalism.
Lee, 65, is a Taiwan-born U.S. citizen who now lives near Sacramento. In December 1999, he was indicted on 59 counts for allegedly stealing nuclear weapons secrets from the Los Alamos National Laboratory in New Mexico, where he worked, and trying to pass them to another government.
Labeled a national security threat, he was refused bail and held in solitary confinement, but after less than a year the government's case collapsed. Lee pleaded guilty to a single count of mishandling classified information — the least serious offense he was charged with — and was sentenced to time served, but not before the federal judge overseeing the case issued a scalding rebuke to the prosecutors and other officials involved in the matter, saying they had abused their power and misled the court about the evidence.
Lee walked free, and then-President Bill Clinton later apologized for the scientist's treatment. That, however, did not end the matter.
Using provisions of the 1974 Privacy Act, Lee's attorneys filed a civil suit in 1999 claiming that throughout the investigation, long before he had been indicted, Lee had been effectively framed by Clinton administration officials, who smeared him through improper leaks to the media.
The suit charges that the Energy Department, the Justice Department and the FBI violated Lee's right to privacy, and the lawyers are seeking to force the journalists who wrote the articles to disclose who provided the information. If he wins, the federal government may have to pay Lee substantial damages.
So far, those journalists, Jeff Gerth and James Risen from the New York Times, Robert Drogin of the Los Angeles Times, H. Josef Hebert of the Associated Press and Pierre Thomas of CNN (now working for ABC) have lost every decision, up to an appeals court, and the federal courts have ruled they must disclose their sources.
Another reporter, Walter Pincus of the Washington Post, is also being pursued by Lee's attorneys, but his case is moving separately through the courts. Gerth has testified, but said he could not recall his sources, and so he has been effectively eliminated from the suit.
The remaining reporters face contempt of court citations for not providing the names of their sources to Lee's attorney. In the latest ruling, issued on Thursday, an eight-judge federal appeals panel refused, by a 4-4 vote, to set aside the previous orders.
There was, however, a sliver of hope for the reporters in the form of the dissenting opinions. One, by Judge David S. Tatel, stressed the importance of journalistic promises of confidentiality.
"It's hard to imagine how his (Lee's) interest could outweigh the public's interest in protecting journalists' ability to report without reservation on sensitive issues of national security," it stated.
The dissent, say press advocates, could provide some support for the reporters if their appeal reaches the Supreme Court, which is uncertain.
The driving force behind Lee's case has been Brian Sun, a litigator at Jones Day, a large national law firm. Sun says he has no hesitation about chipping away at journalists' rights in this case because of the harm he believes Lee unfairly suffered.
He argues that the reporters in question were essentially dupes of government officials who improperly sought to prosecute the nuclear scientist with illicit leaks to the press, rather than in a courtroom.
"What they were doing was not journalism, it was a rush to judgment," said Sun, speaking in his downtown Los Angeles office. "We want accountability for the leakers."
Sun said he believes strongly in the First Amendment protections and privileges that journalists enjoy, and that the media should normally be able to keep the identity of sources confidential — for the right reasons. Because Lee was eventually exonerated of all but the least important charge, Sun said, he believes Lee was improperly maligned.
"There's a distinction between the press reporting on someone who is revealing government misbehavior and someone who is engaged in just plain bad conduct," Sun said. "In this case the officials were trying to slant the public's perception of the case in an unlawful manner, and for a crime Dr. Lee didn't commit, and the question is, how do you control the leakers and the journalists rushing to publish?"
The civil suit was filed before Lee was indicted, Sun said, in an effort to scare off the government leakers.
A number of articles at the time alleged that Lee had had improper contacts with Chinese scientists and had improperly downloaded classified nuclear weapons data. Some of the articles also claimed that Lee had misled investigators and had failed a polygraph test — information that, Sun maintains, was often twisted or wrong and should have been kept secret.
"The leaks were going crazy, and we wanted to put a stop to them," Sun said. "I can tell you they slowed down significantly after we filed the suit."
Sun said that he holds both the government officials and the reporters responsible. The journalists, he said, had a right to gather that information, but then they had a responsibility to screen it more carefully.
"The problem is journalists policing themselves," Sun said. "It's not wrong to listen when someone tells you that stuff. You're doing your job. But you run a risk to your paper and your source that you may not be able to protect the identity of your source if you got the information improperly, or if you print things that are just wrong."
Attempts to reach the reporters involved in the case were unsuccessful, but their attorneys unhesitatingly condemned the suit.
Floyd Abrams, who is representing Risen of the New York Times, said the suit does not question the accuracy of the articles, only that the information was improperly leaked. But even if accuracy had been the issue, he said, "We would be defending that. Mr. Risen did a serious and solid job. He has made no apology."
Charles Tobin, the attorney for Pierre Thomas, said that if Sun believes the reporters published material that was wrong, Sun should have filed a defamation suit, not a privacy suit, and that Thomas will never give up his sources.
"If you file under the Privacy Act, what you're really after is money," said Tobin. "A suit seeking monetary damages should not be used as a reason to force the journalists to disclose their sources and further lower that barrier."
Tobin added, "Pierre Thomas' reporting has been completely vindicated. It was not wrong. That's what makes it so frustrating."
Lee Levine, a First Amendment specialist who represents Robert Drogin and H. Josef Hebert, also expressed concern that Sun is relying on the Privacy Act which, he said, could be used to prevent any leak of government information if applied so broadly.
Levine said the judge in the case, which is being heard in federal court in Washington, D.C., is supposed to demand that the lawyers exhaust every avenue for obtaining the needed information before issuing subpoenas to reporters. That does not appear to be the case here, he insisted.
Judges, Levine said, are becoming overly lenient in allowing subpoenas to be issued to reporters.
"This promises to happen more frequently," Levine said. "There is a lurking skepticism not only about the constitutional foundation of the privilege but about whether there's a privilege at all for maintaining confidentiality of journalists' sources. There's been a real sea change in the courts."
As to Sun's comments that the reporters did not scrutinize what they heard from their sources, Levine dismissed it.
"The contention is just not borne out by the evidence in the case," he said.
Rosenstiel said that he agreed with Sun that the Lee case raises important issues about journalistic responsibilities. His concern, he said, is dragging these concerns into court and extracting financial settlements, which could have a chilling effect on aggressive journalism.
"What he's saying may be good press criticism but I'm not sure it's good law," Rosenstiel said.
Ultimately, Dalglish, Rosenstiel and Levine agreed, the case should alter the way journalists operate, at least to some degree. It is common now for reporters to offer confidentiality to sources without a clear explanation of when that promise can be put aside. It should be made clear to sources that the offer is not absolute.
"More reporters should consider doing that," Dalglish said.
Rosenstiel insisted that journalists operate under a self-correcting process; if a story is incorrect one day, they can correct and refine the story as the case unfolds.
For Sun, that is not good enough.
"You have to balance that right, that privilege, to protect sources against the harmful things government officials can cause when they have no accountability for leaks," Sun said.
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