Court Says Journalists Must Reveal Sources in Lee Case

WASHINGTON â€”  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 confined.

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.