A federal appeals court Tuesday upheld civil contempt of court findings against four journalists who refuse to reveal their sources for stories about former nuclear scientist Wen Ho Lee.
Lee has filed a lawsuit alleging government officials leaked information about him to reporters, violating federal law in pointing to him as a suspect in the possible theft of nuclear secrets for China.
A federal court did not abuse its discretion in finding the journalists in contempt for refusing to answer questions under oath about their sources, the three appeals judges ruled.
The four reporters are H. Josef Hebert of The Associated Press, The New York Times’ James Risen, Robert Drogin of the Los Angeles Times and Pierre Thomas, formerly of CNN and now of ABC. AP will ask the full nine-member appeals court in Washington, D.C., to review the case.
“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.”
The appeals court reversed a contempt finding against New York Times reporter Jeff Gerth, saying there was insufficient evidence against him to sustain such a conclusion.
Increasing hostility for news media
The legal troubles for the four reporters, who face fines of $500 a day, come at a time of increasing hostility for the news media in the courts.
On Monday, the Supreme Court, the nation's highest court, refused to intervene in another case in which New York Times reporter Judith Miller and Time magazine reporter Matthew Cooper face jail time for refusing to reveal their sources in a federal court case. In that case, a federal prosecutor is investigating the Bush administration's leaking of the identity of CIA officer Valerie Plame.
Lee's name surfaced in the media in the midst of a political controversy during the Clinton administration in which Republicans accused the White House of ignoring China's alleged theft of U.S. nuclear secrets.
The information Lee is seeking — the identity of any leakers — "goes to the heart of his case," said the decision written by Judge David Sentelle of the U.S. Court of Appeals for the District of Columbia Circuit.
Lee was fired from Los Alamos National Laboratory in New Mexico. Indicted on 59 felony counts alleging he mishandled nuclear weapons information, Lee 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.
In Lee's lawsuit, "the relevant information is the identity of the individuals who may have leaked information in violation of the Privacy Act," Sentelle wrote. "If he cannot show the identities of the leakers, Lee's ability to show the other elements of the Privacy Act claim, such as willfulness and intent, will be compromised."
The journalists have refused to reveal even the employer of their unidentified sources, information that arguably would have been sufficient to support at least a portion of Lee's claim, Sentelle wrote.