By R. Jeffrey Smith Washington Post Staff Writer Wednesday, October 15, 2003; Page A02
A federal judge has set the stage for an unusual clash over assertions by reporters for four news organizations that they need not disclose the names of their sources, a traditional journalistic practice that underpins much of news reporting in Washington.
U.S. District Judge Thomas Penfield Jackson late last week ordered journalists at the New York Times, Los Angeles Times, Associated Press and Cable News Network to reveal who in the government may have disclosed derogatory information to them about Wen Ho Lee, a former nuclear weapons scientist who was the chief suspect in an espionage case.
Lee has sued the government to recover damages for alleged harm to his reputation caused by leaks of confidential information from the government's espionage investigation. His lawyers have encountered what the judge described as "a pattern of denials, vague or evasive answers, and stonewalling" on the part of the government officials they questioned.
That gives them the right, Jackson said, to demand that certain journalists who wrote about the case say which officials might have provided the information.
"This is kind of bad news," said Lucy Dalglish, executive director of the Washington-based Reporters Committee for Freedom of the Press. She said it is highly unusual for a judge to order so many reporters at once to divulge their sources and almost unprecedented in a case in which no criminal actions are alleged.
No similar case has been adjudicated in Washington since 1981, and media legal experts forecast a battle between the court and the news organizations, which traditionally have refused to comply with court orders to name confidential sources. All four companies had sought to quash the subpoenas, but Jackson ordered they must go forward.
His Oct. 9 decision was mailed and reached the companies yesterday. The Associated Press's assistant general counsel, Dave Tomlin, said the parties are deciding whether to appeal the order. He suggested, however, that Lee's attorneys had not met tests established by court opinions as a condition for compelling the disclosures.
Catherine Mathis, spokeswoman for the New York Times, said, "We continue to believe that the confidentiality of our sources is critical to providing the public with important information and plan to seek an appeal."
At the heart of the dispute is some flawed reporting about the government's investigation of alleged espionage, which officials asserted had produced an unexpected advance in the design of Chinese nuclear warheads. The case electrified Washington after various news organizations in early 1999 named Lee, a Taiwanese-born scientist who worked at Los Alamos National Laboratory, as the chief suspect.
Lee pleaded guilty to a single felony count of copying classified documents onto computer tapes without authorization. But the case brought mostly embarrassment to everyone involved. The FBI acknowledged that it botched the investigation by focusing on Lee to the exclusion of others, and in 2000 dropped 59 counts of felony espionage it had lodged against him.
The bungling led to congressional hearings, internal investigations and a judge's eventual statement that the government had "embarrassed this entire nation." The government, in turn, blamed its errors partly on the frenzied atmosphere stirred by overzealous news coverage.
The New York Times, in an unusually lengthy editor's note in September 2000, said it had "found some things we wish we had done differently in the course of the coverage to give Dr. Lee the full benefit of the doubt."
Lee's lawsuit against the Energy Department and the FBI alleges violations of the Privacy Act, which bars unauthorized disclosure of certain personal information by government agencies. Lee said various disclosures about him were orchestrated to cover the government's embarrassment about security lapses at Los Alamos, and alleged harm to his reputation, emotional distress and financial loss.
Jackson's decision states that federal and Supreme Court opinions have held that reporters lack an absolute right to withhold information about their sources, and that they must yield in lawsuits brought in federal court once plaintiffs have proven the source information is central to their case and exhausted alternative means of obtaining the information.
In this case, Jackson said, 20 depositions of current and former officials at the FBI, Energy Department, Justice Department and U.S. attorney's office in New Mexico, where Los Alamos is located, yielded no useful information. "At the moment, only the journalists can testify as to whether defendants were the sources for the various news stories," he said in ordering them to submit to depositions and also to provide pertinent records.
Charles Tobin, attorney for Pierre Thomas, who was reporting for CNN at the time, said he was "disappointed" by the judge's order. "We're studying the judge's decision and weighing our options." Heather Hersh Gilhooly and Brian Sun, attorneys for Lee, said they were still reviewing Jackson's order and declined to comment.
Only one reporter who was subpoenaed has agreed to answer questions from Lee's attorneys, but said he would not name anonymous sources. Ian Hoffman, a former reporter for the Albuquerque Journal, said he decided to do so because a government official he had quoted in an article about Lee maintained falsely to have never spoken with Hoffman. "In circumstances such as that, we needed to break with tradition and address it," Hoffman said in an interview last night.
Staff writer Carol D. Leonnig contributed to this report.
==================================== To this day, no one has come up with a set of rules for originality. There aren't any. [Les Paul]