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[LEGAL] Reporters Must Disclose Sources in Wen Ho Lee Case

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  • madchinaman
    Contempt Finding Upheld Against Reporters By PETE YOST, Associated Press Writer Tue Jun 28, 7:41 PM ET
    Message 1 of 1 , Jun 29, 2005
      Contempt Finding Upheld Against Reporters
      By PETE YOST, Associated Press Writer
      Tue Jun 28, 7:41 PM ET


      Gerth, the other New York Times reporter questioned by Lee, denied
      knowing the identity of the sources used in stories he wrote with
      Risen. But he had been held in contempt anyway by U.S. District
      Judge Thomas Penfield Jackson, who found the "profession of
      ignorance" to be "not credible." Gerth also had declined to answer
      other questions because he said they implicated sources related to
      another case, a position that Jackson said "strains credulity."

      The principle at stake in the CIA case — that journalists have no
      right to withhold testimony when called to appear before a grand
      jury — was first articulated by the Supreme Court in 1972. That
      ruling, days before the break-in at the Democratic National
      Committee headquarters at the Watergate Hotel in Washington, did not
      deter the investigative reporting that led to the resignation of
      President Nixon, some observers have noted.

      Editor's Note: Worthwhile to review and compare the media's position
      and results from the Watergate & Wen Ho Lee Case.


      WASHINGTON - In the second setback for the news media in two days, a
      federal appeals court upheld civil contempt findings Tuesday against
      four journalists whose confidential sources pointed to scientist
      Wen Ho Lee as a possible spy.

      Lee, who was exonerated of any espionage-related allegations, has
      sued over his treatment by the government. His lawyer wants the
      reporters to reveal their sources to help in Lee's lawsuit. The
      judge has cited them for contempt of court for refusing and has
      ordered fines of $500 per day, though the penalty has been placed on
      hold while appeals are under way.

      The identity or identities of the reporters' sources "goes to the
      heart" of Lee's case, a three-judge panel of the U.S. Court of
      Appeals for the District of Columbia Circuit ruled.

      The reporters are H. Josef Hebert of The Associated Press, James
      Risen of the New York Times, Robert Drogin of the Los Angeles Times
      and Pierre Thomas, formerly of CNN and now of ABC. The appeals court
      reversed a contempt finding against New York Times reporter Jeff
      Gerth, saying it had been based on insufficient evidence.

      AP said it would seek a further appeal to the full nine-member
      court. A lawyer for Thomas said no decision had been made yet on
      further appeals.

      The decision was the latest in a string of legal setbacks for
      journalists seeking to keep sources confidential.

      On Monday, the Supreme Court refused to take up the case of New York
      Times reporter Judith Miller and Time magazine reporter Matthew
      Cooper who face jail time for refusing to reveal their sources to a
      federal grand jury. In that case, a federal prosecutor is conducting
      a criminal investigation into who in the Bush administration leaked
      the identity of CIA officer Valerie Plame.

      Last year Rhode Island TV reporter Jim Taricani was sentenced to
      home confinement after he refused a court order to reveal the
      confidential source of an undercover FBI videotape of an alleged
      bribe. He served four months.

      "No criminal case is at stake here," AP President and CEO Tom Curley
      said. "Journalists should not be forced to identify sources to help
      support Wen Ho Lee's view that the government mishandled his case."

      "Joe Hebert's ability to protect the identity of his confidential
      sources is critical to his effectiveness as a journalist," Curley
      said. "Sources with important information will not come forward
      unless they can trust a reporter's pledge to keep their identity
      under wraps."

      Lee's attorney said they did not view the case "as an assault on the
      First Amendment."

      "We are pursuing justice for Dr. Lee, who is entitled to seek this
      information under the law. The D.C. circuit's opinion reaffirms
      these principles," said lawyer Brian Sun.

      New York Times Publisher Arthur Sulzberger Jr. said the ruling went
      to the heart of the First Amendment and the free flow of information
      to the public. He also said many individuals named by Lee's attorney
      as potential sources had not been questioned.

      The Los Angeles Times said people who file civil suits should not be
      granted the power to order reporters to break their word to
      confidential sources. The newspaper said it was considering whether
      to appeal further.

      Deanna Sands, president of the Associated Press Managing Editors
      Association, said the judiciary's actions the past two days will
      curb the willingness of people with important information to come
      forward for fear of reprisal.

      Lee's name surfaced in the news media during a political controversy
      in 1999 when Republicans accused the Clinton White House of ignoring
      China's alleged theft of U.S. nuclear secrets.

      Lee was fired from Los Alamos National Laboratory in New Mexico.
      Indicted on 59 felony counts alleging he mishandled nuclear weapons
      information, he pleaded guilty to a single charge after spending
      nine months in solitary confinement.

      His treatment drew an apology from a federal judge, who said the
      case had embarrassed the nation and every citizen.

      Some legal experts see the courts as becoming increasingly hostile
      to the news media, though others warned not to read too much into
      the recent decisions.

      "I think it's a terrible mistake to generalize about two tough cases
      for the press and think the world is coming to an end," said
      attorney James Goodale. "The press has fought hard here and these
      cases are a lesson for the press to keep on fighting. If reporters
      have to give up their time and go to jail, they should be treated as

      Goodale is the architect of the largely successful legal strategy
      the news media has employed ever since a landmark 1972 Supreme Court
      ruling went against a Kentucky reporter trying to protect his
      confidential sources. Goodale noted language by Justice Lewis Powell
      that reporters have a qualified privilege and persuaded his fellow
      lawyers to get that language adopted state by state.

      Attorney Nathan Siegel, representing Hebert and Drogin, said
      society's appreciation for the value of investigative reporting ebbs
      and flows and there are times "when people don't appreciate it as
      much as they should."

      "There is certainly a trend in the federal courts to make it more
      difficult for reporters to protect confidential sources," Siegel

      UCLA law professor Eugene Volokh said the judiciary is relying on
      court precedents that have been on the books for decades.

      "It's always been the rule that when reporters' testimony is really
      necessary, they have to testify," Volokh said.

      In Lee's case, the appeals court said lawyers had taken proper care
      in trying to track down the leakers, questioning 20 people inside
      government before trying to get information out of the reporters.


      Court Says Journalists Must Reveal Sources in Lee Case
      Appellate ruling says four reporters can be held in contempt. Some
      see an ominous trend.
      By Richard B. Schmitt, Times Staff Writer

      WASHINGTON — A federal appeals court said Tuesday that four
      journalists, including a Los Angeles Times reporter, could be held
      in contempt for not revealing their sources in writing about Wen Ho
      Lee, the former nuclear weapons scientist targeted as a possible spy.

      The ruling was the second in as many days in which a court
      sanctioned the media for protecting confidential sources. It comes
      at a time when the media are facing increased questions about bias
      and accuracy.

      Lee — who worked at Los Alamos National Laboratory in New Mexico —
      was the subject of an FBI and Energy Department investigation in the
      late 1990s into the possibility that the nation's weapons secrets
      were being passed to China. But the case against him collapsed and
      he sued the government, claiming that his image had been tarnished
      because of illegal leaks to journalists.

      Lee subpoenaed the reporters who covered the investigation. They
      declined to answer his questions, arguing that the 1st Amendment
      shielded them from having to turn over the names of sources to Lee's
      lawyers. In August, a judge held the reporters in contempt and fined
      them $500 a day apiece, pending appeal.

      The reporters held in contempt were Bob Drogin of the Los Angeles
      Times, James Risen of the New York Times, H. Josef Hebert of
      Associated Press and Pierre Thomas, a former CNN correspondent now
      with ABC News.

      A contempt citation against a fifth journalist involved in the case,
      New York Times reporter Jeff Gerth, was dismissed Tuesday. Gerth had
      denied knowing the identity of sources used in stories he co-wrote
      about Lee.

      The 3-0 ruling by a three-judge panel of the U.S. Court of Appeals
      for the District of Columbia Circuit followed a Supreme Court
      decision Monday that reporters for the New York Times and Time
      magazine could be jailed for refusing to reveal their sources to a
      prosecutor investigating the leak of the identity of a CIA operative.

      Without elaborating, the high court let stand a lower court opinion —
      written by David B. Sentelle, the same judge who wrote the decision
      in the Lee case Tuesday — saying that journalists can be compelled
      to testify about their sources when called to appear before a grand
      jury. A hearing in the CIA case is set for today in part to discuss
      the terms and conditions under which the journalists might be

      Media lawyers and 1st Amendment groups said Tuesday that the two
      decisions were part of an ominous pattern.

      The rulings "continue what appears to be an unmistakable trend of
      appellate courts questioning what the press and its lawyers had
      assumed was largely settled: Except in extraordinary circumstances,
      reporters have a 1st Amendment right to promise confidentiality to
      sources and keep those sources confidential," said Lee Levine, a
      Washington media lawyer. Levine represents Drogin, The Times
      reporter held in contempt.

      "We were disappointed by the ruling," Martha Goldstein, The Times'
      vice president for communications, said in a prepared statement. "We
      think people who file civil suits should not be granted the power to
      order reporters to break their word to confidential sources, and
      we're examining our options."

      In a written statement, Arthur Sulzberger Jr., publisher of the New
      York Times, called the decision "yet another blow to journalists'
      ability to report on how the government operates."

      But prosecutors and those who think they have been wronged by
      illegal leaks say the requests are modest intrusions on the news
      gathering process, and that without the cooperation of journalists,
      serious wrongdoing will go unpunished.

      The protections of the Privacy Act, the law that Lee is suing
      under, "do not disappear when the illegally disclosed information is
      leaked to a journalist, no matter how newsworthy the government
      official may feel the information is," Sentelle wrote. He noted that
      the journalists even refused to reveal their sources' employers —
      "information that arguably would have been sufficient to support at
      least a portion of Lee's claim."

      The principle at stake in the CIA case — that journalists have no
      right to withhold testimony when called to appear before a grand
      jury — was first articulated by the Supreme Court in 1972. That
      ruling, days before the break-in at the Democratic National
      Committee headquarters at the Watergate Hotel in Washington, did not
      deter the investigative reporting that led to the resignation of
      President Nixon, some observers have noted.

      Lawyers for the journalists in the Lee case who were held in
      contempt said they had not decided on their next steps. They could
      seek a hearing before the full District of Columbia appellate court
      or appeal directly to the Supreme Court.

      Sentelle, writing for a unanimous three-judge panel, said
      journalists had greater rights to protect their sources when their
      testimony was sought in civil suits as opposed to criminal
      proceedings, such as the CIA case. But he said that protection had
      distinct limits.

      Lee sued the government in December 1999, alleging that agency
      officials made disclosures to journalists in violation of federal
      privacy laws, including leaks about his employment history and
      performance on polygraph tests.

      Lee was never charged with spying, and ultimately pleaded guilty to
      a single count of mishandling classified computer files. He received
      an unusual apology from the federal judge overseeing his case.

      Lee subpoenaed the journalists for their sources after his lawyers
      took about 20 depositions from top government officials and were
      unable to determine who leaked the information.

      In appealing the contempt citation, the reporters argued that Lee
      and his legal team had not made sufficient efforts to investigate
      other government officials who might have leaked the information.

      But Sentelle wrote that Lee had "met his burden as to exhaustion,"
      and that the law did not require that he depose "every individual
      who conceivably could have leaked the information."

      Risen, the New York Times reporter held in contempt, declined to
      answer more than 100 questions during his deposition, according to
      the appeals court ruling.

      The court cited Drogin for his refusal to reveal the name of
      a "senior Clinton administration official" who provided information
      for a report he wrote in April 1999 about FBI plans to arrest Lee.
      In all, he declined to answer eight questions posed by Lee's lawyers.

      Gerth, the other New York Times reporter questioned by Lee, denied
      knowing the identity of the sources used in stories he wrote with
      Risen. But he had been held in contempt anyway by U.S. District
      Judge Thomas Penfield Jackson, who found the "profession of
      ignorance" to be "not credible." Gerth also had declined to answer
      other questions because he said they implicated sources related to
      another case, a position that Jackson said "strains credulity."

      But the appeals court sided with the reporter. Statements by Gerth
      that the lower court found contradictory were "insufficient to
      provide 'clear and convincing evidence' of contempt," Sentelle said.


      Reporters Await Fallout of Not Naming Sources
      Two journalists facing jail time are to find out whether the high
      court will hear their case.
      By James Rainey, Times Staff Writer

      For two prominent journalists at two of America's top publications
      it's come to this: pondering the advantages of home confinement over
      federal prison, hearing warnings about jail house food and
      institutional underwear, and listening to colleagues joke about the
      possibility of a presidential pardon.

      Matthew Cooper of Time magazine and Judith Miller of the New York
      Times expect to learn Monday whether the U.S. Supreme Court will
      hear their case.

      If the court declines to review the case of the two journalists —
      held in contempt by a lower court for declining to identify their
      confidential sources — they could land in jail within days and be
      forced to stay there for as many as 18 months.

      The high court's acceptance of the case would mean a reprieve, at
      least until a final ruling, likely to come next year.

      Cooper and Miller have been the most prominent in a recent pageant
      of journalists jailed or fined for ignoring court orders to reveal
      sources. Cooper has gained acclaim as Time's dogged, wisecracking
      White House correspondent; Miller has been praised, and criticized,
      for pushing forward stories about weapons of mass destruction.

      Many in their profession, and outside it, see the case as a
      harbinger of future journalistic freedoms.

      Bill Keller, executive editor of the New York Times, recently
      described how a colleague explained to a group of Russian
      journalists visiting the Times how Miller might go to jail for
      refusing to reveal the identity of confidential sources.

      "The Russians were flabbergasted," Keller said, "since they have
      grown up regarding our freedoms with envy."

      But journalists should not be the only ones concerned about the
      possible jailing of the reporters, Keller said in an e-mail response
      to questions on the case.

      "I think the likely consequence, if reporters are not allowed some
      protection, will be an erosion of the public's ability to know what
      the government and other powerful institutions are up to," Keller
      said. Sources would not dry up entirely, he said, but he worried
      that "some witnesses of wrongdoing will be intimidated into silence,
      and some important stories will not be told."

      Chances that the high court will take the case received a boost last
      month when attorneys general in 34 states and the District of
      Columbia urged a review. The states' chief law enforcement officers
      could be especially persuasive in the case because they typically
      fight against any limits on their access to witnesses.

      The bipartisan group, which included 14 Republicans, said lower
      courts had issued a welter of confusing and contradictory rulings
      that only the Supreme Court could help clarify.

      "A free and open democracy requires a free and open press," said
      Greg Abbott, the Republican attorney general of Texas. "Texas and
      virtually every other state in the nation recognize some form of a
      reporter's privilege, and I urge the Supreme Court to do the same."

      The convoluted series of events that could put Cooper and Miller in
      jail began to unfold two years ago, when retired diplomat Joseph C.
      Wilson IV accused President Bush of "misrepresenting the facts on an
      issue that was a fundamental justification for going to war."

      The former ambassador was one of the first to debunk Bush's
      accusation in the 2003 State of the Union address that Saddam
      Hussein had sought uranium in Africa for nuclear weapons.

      The administration made a concerted effort to undermine Wilson's
      charge. Sources supporting Bush said that Wilson had made a cursory
      review in Niger and that he was able to make the trip only because
      of nepotism by his wife, a CIA official assigned to monitor weapons
      of mass destruction.

      These claims were floated to several reporters, but columnist Robert
      Novak was the first to name Wilson's wife, Valerie Plame, as a CIA

      That, in turn, attracted the attention of then-Atty. Gen. John
      Ashcroft, who ordered an investigation into whether administration
      officials broke the law by identifying a covert agent, in violation
      of the Intelligence Act of 1980. Ashcroft appointed a special
      prosecutor, Patrick J. Fitzgerald. He has aggressively pursued the
      identity of the administration leakers.

      Several prominent journalists who worked on the Plame story received
      subpoenas. A few — such as Walter Pincus of the Washington Post and
      Tim Russert of NBC — avoided the possibility of jail when their
      sources agreed the journalists no longer had to keep their
      identities secret. It remains a mystery whether Novak had to
      testify. He has declined to comment.

      Miller would not ask her sources to waive their anonymity. She said
      intelligence officials might feel coerced into admitting they had
      talked to a reporter. Cooper initially answered the prosecutor's
      questions, with the agreement of one of his sources, but the
      reporter declined to answer when Fitzgerald came back for more

      As a result, U.S. District Judge Thomas F. Hogan cited Miller — who
      never wrote about the Plame case — and Cooper for contempt. Hogan's
      action has been upheld by two appellate panels, leading to the
      Supreme Court appeal.

      Legal experts had held out little likelihood that the court — which
      discussed the matter in closed session Thursday — would take the

      In 1972, the court ruled that reporters had no special privilege to
      refuse to answer questions before a federal grand jury. But the 5-4
      decision, which included ambivalent concurrence by one justice, left
      open the possibility that reporters could protect their sources
      under other circumstances.

      The recent revelation of the identity of "Deep Throat" — the whistle-
      blower on corruption in Nixon White House — might be seen as a
      reminder of the importance of secret sources.

      But American journalists today live in a different climate, with
      multiple examples of prosecutors and judges trying to force them to
      identify individuals who spoke only with the guarantee that their
      identities would be kept secret.

      Providence, R.I., television reporter Jim Taricani recently
      completed four months of home confinement for contempt after he
      declined to reveal who leaked him a videotape of a city official
      taking a bribe.

      Five reporters, including one from the Los Angeles Times, faced
      contempt citations and $500-a-day fines for refusing to disclose who
      in the government talked to them about Wen Ho Lee, the former
      nuclear physicist once suspected of espionage. That case is under

      "The stakes are very, very high right now," said Rep. Mike Pence (R-
      Indiana) cosponsor of legislation that would help reporters protect
      their sources. "Without protection, the possibility there will be no
      more Deep Throats is great. And without those sources, there is less
      opportunity to root out public corruption."

      Pence said that though he did not wish jail time on anyone, the
      prospect of Cooper and Miller landing in jail "may be just the wake-
      up call that the public and the Congress need" to grant reporters a
      privilege similar to the ones that protect clients' communications
      with doctors and lawyers.

      Several 1st Amendment lawyers have said the facts in the Cooper-
      Miller case aren't ideal for the journalists to prevail in court.
      More appealing, they said, would have been a case involving a
      whistle-blower who helped a reporter expose government corruption or
      a defective product.

      After speaking extensively about their case in the past, Cooper and
      Miller kept a lower profile last week. Cooper declined to comment;
      Miller did not respond to an interview request.

      Cooper, 42, who has appeared as a stand-up comedian in the
      Washington area, has greeted his fate with characteristic gallows
      humor, colleagues say. They quip that his best hope is a pardon from
      Bush. He has worried about how he would explain a jail sentence to
      his 6-year-old son.

      One colleague said Miller, 57, had handled the uncertainty of the
      situation with grace, adding: "I think she is increasingly nervous
      about what is going to happen, like anyone would be."

      Lawyers who have closely watched Fitzgerald's investigation said
      they thought the Republican prosecutor appeared to be bending over
      backward to show he was thoroughly exploring potentially illegal
      leaks by a Republican White House. But an indictment for exposing
      Plame now seems unlikely, they said, because her identity was
      already known in Washington and because it would be difficult to
      prove an intent to harm U.S. intelligence.

      Legal experts said it seemed more likely that Fitzgerald would seek
      perjury or obstruction of justice charges.

      This year, Miller and Cooper appeared on a panel at the National
      Press Club to discuss press freedom. At a lunch afterward, they got
      an idea of what their future might hold from book author Vanessa
      Leggett, who spent about six months in jail for refusing to reveal
      sources she interviewed about the slaying of a Houston socialite.

      Leggett described telling drug dealers and smugglers what she
      was "in" for. "It all sounded so wishy-washy and implausible to
      them," she said. "They decided I must be some sort of spy or
      informant…. They couldn't believe that I had been held that long and
      I wasn't charged with any crime."
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