A divided federal appeals court for a second time has rejected four journalists’ appeal of a judge’s order directing them to testify about their confidential sources as part of nuclear scientist Wen Ho Lee’s lawsuit against the government.
The U.S. Court of Appeals for the District of Columbia Circuit refused, by a 4-4 vote, to grant a rehearing of the journalists’ case before the full court. A majority of the court’s 10 judges was required to grant a rehearing; two judges recused themselves.
One who favored hearing the case, Judge David S. Tatel, wrote in his dissent that Lee’s claim for compensation pales in importance to people’s right to know about what was believed to be nuclear espionage.
“It’s hard to imagine how his (Lee’s) interest could outweigh the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues of national security,” Tatel wrote.
There were no written rulings from the judges who voted against hearing the case.
U.S. District Judge Thomas Penfield Jackson held the reporters in contempt of court for refusing to identify their sources for stories about Lee, who in 1999 was suspected of spying while he worked at Los Alamos National Laboratory in New Mexico.
A three-judge appellate panel upheld Jackson’s ruling in June.
Lee is seeking the identity of the sources for his lawsuit against the departments of Energy and Justice. He alleges the agencies gave reporters private information about him and suggested he was a suspect in the investigation into possible theft of nuclear secrets.
All but one of 59 counts against Lee eventually were dismissed and then-President Clinton apologized for Lee’s treatment. He was never charged with espionage. He pleaded guilty to one felony count of mishandling nuclear weapons information.
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 court’s decision was released Thursday.