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Court Won't Hear Appeal on 4 Reporters' Sources

The journalists have been ordered to identify those who said Wen Ho Lee was a spy suspect.

November 04, 2005|James Rainey | Times Staff Writer

A federal court has rejected the appeal of four journalists cited for contempt after refusing to reveal their confidential sources in reporting about Wen Ho Lee, the former nuclear weapons scientist once investigated as a possible spy.

In a decision released Thursday, a panel of the U.S. Court of Appeals for the District of Columbia Circuit voted 4 to 4 to review the case of reporters from the Los Angeles Times, New York Times, Associated Press and CNN -- falling short of the majority needed to accept the appeal.

The reporters could face fines of $500 a day for failing to reveal their sources -- a penalty that has been suspended pending appeal of their case. A decision about a further appeal to the Supreme Court has not been made.

Lee's lawyer, Brian A. Sun, said he was pleased by the court action.

"This is ... a case where government officials intentionally leaked information about a sensitive criminal investigation and irreparably damaged Dr. Lee," Sun said. "And the obvious reason was to deflect attention from their own perceived inadequacies in maintaining proper security policies at the nation's nuclear weapons labs."

Lee, who worked at the Los Alamos National Laboratory in New Mexico, was named by the journalists as a suspect in the theft of nuclear secrets for China.

After a lengthy investigation, he pleaded guilty to a single count of mishandling classified computer files. Lee was never charged with spying, and in 1999 he sued the government for allegedly violating his privacy by revealing details of his employment.

Thursday's ruling upheld a three-judge panel of the same court, which found in June that Lee had exhausted efforts to find the identity of the leaker by deposing government officials and that he needed the journalists' testimony to proceed with his complaint.

Media advocates said Thursday's split vote and strong dissents from two of the judges gave them hope that the Supreme Court might block the subpoenas.

"I think the judges were sending a message to the Supreme Court that it's time to take a look at this issue and say something about it," said Lee Levine, attorney for Bob Drogin of the Los Angeles Times and H. Josef Hebert of Associated Press.

Also found in contempt were James Risen of the New York Times and Pierre Thomas, a former CNN correspondent now with ABC News.

In calling for a rehearing of the case, Judge David S. Tatel wrote Thursday that the three-judge panel had not properly balanced Lee's rights against the public's.

"It's hard to imagine how his interest could outweigh the public's interest in protecting journalists' ability to report without reservation on sensitive issues of national security," Tatel said.

Judge Merrick B. Garland agreed that without such balancing, the reporter's privilege against revealing sources was "effectively no privilege at all."

Many media experts believe that the Lee case could have serious long-term implications -- such as journalists frequently being ordered to testify when government employees allege their privacy rights were violated.

"Attorneys for federal officials are going to say: 'Hey, my guy has been dragged through the mud and this was information from his personnel file. We are just going to sue and recover for damage to his reputation,' " said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "And they won't necessarily be saying that the claims are false. That's going to have a chilling effect on reporting the news of the day."

Sun countered that reporters would only rarely be ordered to testify because of the difficulty plaintiffs faced in proving they had exhausted other sources to find a leak.

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