News Media Update WASHINGTON, D.C. Confidentiality/Privilege

Reporters in Wen Ho Lee case held in contempt of court, sanctioned

A federal judge held five reporters in contempt after they failed to comply with his order to reveal their confidential sources, but stayed the penalty pending appeal.

Aug. 18, 2004 — Five reporters were held in contempt of court today after failing to comply with a Washington, D.C., federal court’s order to reveal confidential sources used in reporting on the 1999 FBI espionage investigation of former Los Alamos nuclear scientist Wen Ho Lee.

U.S. District Court Judge Thomas Penfield Jackson’s order holding the reporters in contempt found that each of the reporters — Robert Drogin of the Los Angeles Times , H. Josef Hebert of the Associated Press, Jeff Gerth and James Risen of the New York Times and Pierre Thomas, formerly of CNN (now with ABC News) — had violated Jackson’s October 9 order requiring them to reveal confidential sources. Jackson ordered the reporters to each pay a fine of $500 per day until they comply with the order, but stayed the fine pending their appeal to the U.S. Court of Appeals (D.C. Cir.).

The case arises out of the Privacy Act lawsuit brought by Dr. Lee in 2000 against the U.S. Departments of Energy and Justice after information was leaked to the press during an FBI investigation of Lee for suspected espionage. Lee was eventually cleared of all charges except one charge of mishandling classified information. As part of the lawsuit, Lee sought the identities of the reporters’ sources in order to establish a violation of the Privacy Act, which prevents government agencies from releasing private information about government employees without their consent.

At a court hearing this morning, the attorneys for four of the reporters argued that the individual reporters did not violate Judge Jackson’s Oct. 9 order.

Attorney Joel Kurtzberg argued that Gerth did not have knowledge of the identity of confidential sources directly related to the charges against Lee, but Jackson found that this “profession of ignorance is not credible” due to his conflicting deposition testimony.

Thomas should not have to testify about his reporting because Lee’s questions were beyond the scope of the judge’s order, which only required disclosures relevant to a Privacy Act claim — information that was personal, private or “hurtful,” attorney Charles Tobin argued. But Jackson said his order was broader than that, requiring the disclosure of the identities of anyone who provided information about Lee.

According to attorney Nathan Siegel, Hebert was an AP “desk reporter” not engaged in investigative journalism who published information that was already known to the public, and whose confidential sources were only confirming known information. Jackson noted that he had rejected these arguments in his previous order, before the journalists’ depositions were taken.

Questions presented to Drogan went beyond the scope of the judge’s order because they were not limited to information about Lee, attorney Lee Levine argued. But Jackson found that the questions were designed to elicit information about the identity of confidential sources within the federal government.

Floyd Abrams, representing Risen of the New York Times , conceded that Risen had violated the order and asked Jackson to “tee the case up for the Court of Appeals.”

Jackson responded that he intended to do just that, noting that “this is a substantial legal issue” and that the “law is sufficiently unclear in the context of this case and it is a question that needs to be decided by the Court of Appeals.” He further noted that he had “no doubt that the journalists are acting in good faith” in believing they have a right to invoke the reporter’s privilege.

In his order dated August 18th, Jackson considered and rejected the merits of each reporter’s claim that he should not be held in contempt. In determining the appropriate remedy, Jackson rejected the reporter’s argument for a $1 per day fine as being “insufficient to ever coerce compliance” and found that the plaintiff’s suggested fine of $1000 per day seemed too punitive. He concluded that he was “splitting the difference” and levying a $500 per day fine.

(Lee v. U.S. Department of Justice; Media Counsel: Lee Levine, Nathan Siegal, Levine Sullivan Koch & Schulz, Washington, D.C. (for L.A. Times, A.P.); Charles Tobin, Holland & Knight, Washington, D.C. (for CNN reporter); Floyd Abrams, Joel Kurtzberg, Cahill Gordon & Reindel, New York (for New York Times))KM

Related stories:

New York Times reporters refuse to answer questions about sources (12/19/2003)
Federal judge orders reporters to divulge sources (10/15/2003)

© 2004 The Reporters Committee for Freedom of the Press

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