Cautious optimism may be in order
WASHINGTON, Oct. 14 — A federal judge has ordered five reporters, including two from The New York Times, to disclose the confidential sources they used in preparing articles about Dr. Wen Ho Lee, the former scientist at the nuclear weapons laboratory in Los Alamos, N.M.
The judge, Thomas Penfield Jackson of Federal District Court here, ordered the reporters on Friday to disclose their sources’ names and provide Dr. Lee’s lawyers with notes and other materials compiled in their newsgathering.
Judge Jackson ruled that First Amendment protections that shield journalists from government interference were outweighed in this specific case by the need of Dr. Lee’s lawyers to provide evidence of government leaks in their suit against the government.
The judge did not give a deadline for compliance.
I’d give them five minutes myself.
Dr. Lee, a former scientist at Los Alamos National Laboratory, is suing the Energy and Justice Departments for reportedly providing reporters confidential information about him, including federal agents’ suspicions that he stole nuclear secrets from his workplace.
Dr. Lee was indicted on 59 felony counts in 1999, but after he spent nearly nine months in solitary confinement, no evidence of espionage emerged. He was released after pleading guilty to one felony count of mishandling nuclear weapons data. In his ruling, Judge Jackson said the case had “embarrassed our entire nation.”
Not the entire nation. The fourth estate wasn’t embarrassed at all. And it remains as snidely defiant as ever.
A spokeswoman for The Times, Catherine J. Mathis, said the newspaper would appeal. The reporters for The Times, Jeff Gerth and James Risen, were named in the order, along with Robert Drogin of The Los Angeles Times, H. Josef Hebert of The Associated Press and Pierre Thomas of CNN, who moved to ABC.
“We believe,” Ms. Mathis said, “that the confidentiality of sources is critical to our ability to provide the public with important news.”
But in point of fact it’s critical only for those who wish to use the news.
Dr. Lee was handed to the fouth estate on a silver platter by those wishing to protect the real spy — a Republican fund-raiser name Katerina Leung.
Several federal officials, including former Energy Secretary Bill Richardson, who is now governor of New Mexico, have said in depositions that they do not recall divulging information about Dr. Lee to reporters. Other officials have denied leaking the information.
“Plausible Deniability” they call it.
Dave Tomlin, assistant general counsel of The A.P., said his organization was still deciding whether to appeal.
“Before the First Amendment lets you compel reporters to reveal sources,” Mr. Tomlin said, “we think you have to do more than get a small handful of government officials to shrug their shoulders and claim they don’t know or can’t remember.”
And that “more” means the press.
A lawyer for The Los Angeles Times, Lee Levine, said the newspaper had not decided how to proceed.
“We are still studying the decision,” Mr. Levine said.
CNN declined to comment.
As well it might.
Meanwhile in its coverage of this news about the news Pravda notes the following:
Lee has sued the government to recover damages for alleged harm to his reputation caused by leaks of confidential information from the government’s espionage investigation. His lawyers have encountered what the judge described as “a pattern of denials, vague or evasive answers, and stonewalling” on the part of the government officials they questioned.
That gives Lee’s attorneys the right, Jackson said, to demand that certain journalists who wrote about the case say which officials might have provided the information.
And thus confront those truly repsonsible for placing him in solitary confinement without trial or access to legal counsel for eight months.
“This is kind of bad news,” said Lucy Dalglish, executive director of the Washington-based Reporters Committee for Freedom of the Press. She said it is highly unusual for a judge to order so many reporters at once to divulge their sources and almost unprecedented in a case in which no criminal actions are alleged.
But Lucy dear, Dr. Lee’s suit is in and of itself an allegation of criminal activity.
No similar case has been adjudicated in Washington since 1981, and media legal experts forecast a battle between the court and the news organizations, which traditionally have refused to comply with court orders to name confidential sources. All four companies had sought to quash the subpoenas, but Jackson ordered they must go forward.
At the heart of the dispute is some flawed reporting about the government’s investigation of alleged espionage, which officials asserted had produced an unexpected advance in the design of Chinese nuclear warheads. The case electrified Washington after various news organizations in early 1999 named Lee, a Taiwanese-born scientist who worked at Los Alamos National Laboratory, as the chief suspect.
Lee pleaded guilty to a single felony count of copying classified documents onto computer tapes without authorization. But the case brought mostly embarrassment to everyone involved. The FBI acknowledged that it botched the investigation by focusing on Lee to the exclusion of others, and in 2000 dropped 59 counts of felony espionage it had lodged against him.
All because of “some flawed reporting.”
The bungling led to congressional hearings, internal investigations and a judge’s eventual statement that the government had “embarrassed this entire nation.” The government, in turn, blamed its errors partly on the frenzied atmosphere stirred by overzealous news coverage.
The New York Times, in an unusually lengthy editor’s note in September 2000, said it had “found some things we wish we had done differently in the course of the coverage to give Dr. Lee the full benefit of the doubt.”
Again: “bungling” and “the frenzied atmosphere.” But criminals like these are no more likely to fess up to their crimes than Rush Limbaugh was willing to confess to a “an addition to painkillers” prior to being caught.
Lee’s lawsuit against the Energy Department and the FBI alleges violations of the Privacy Act, which bars unauthorized disclosure of certain personal information by government agencies. Lee said various disclosures about him were orchestrated to cover the government’s embarrassment about security lapses at Los Alamos, and he alleged harm to his reputation, emotional distress and financial loss.
Ah but the “mainstream” media is not a government agency!
Jackson’s decision states that federal and Supreme Court opinions have held that reporters lack an absolute right to withhold information about their sources, and that they must yield in lawsuits brought in federal court once plaintiffs have proven the source information is central to their case and exhausted alternative means of obtaining the information.
Let me repeat that. It’s so beautiful to see in print:
“Jackson’s decision states that federal and Supreme Court opinions have held that reporters lack an absolute right to withhold information about their sources”
In this case, Jackson said, 20 depositions of current and former officials at the FBI, Energy Department, Justice Department and U.S. attorney’s office in New Mexico, where Los Alamos is located, yielded no useful information. “At the moment, only the journalists can testify as to whether defendants were the sources for the various news stories,” he said in ordering them to submit to depositions and provide pertinent records.
Charles Tobin, attorney for Pierre Thomas, who was reporting for CNN at the time, said he was “disappointed” by the judge’s order. “We’re studying the judge’s decision and weighing our options.” Heather Hersh Gilhooly and Brian Sun, attorneys for Lee, said they were reviewing Jackson’s order and declined to comment.
Aha — CNN speaks after all!
Only one reporter who was subpoenaed has agreed to answer questions from Lee’s attorneys, but said he would not name anonymous sources. Ian Hoffman, a former reporter for the Albuquerque Journal, said he decided to do so because a government official he had quoted in an article about Lee maintained falsely to have never spoken with Hoffman. “In circumstances such as that, we needed to break with tradition and address it,” Hoffman said in an interview last night.
Why should any news organization protect an anonymous source of lies?
Staff writer Carol D. Leonnig contributed to this report.
If you know the answer to that question, Carol, please get back to us ASAP.
And while you’re at it, do tell us what your “sources” had to say about Katerina Leung.