Reporters Fined for Not Giving Sources

WASHINGTON —  A federal judge Wednesday held five journalists in contempt of court for refusing to disclose the names of their confidential sources for reports about a nuclear weapons scientist under government investigation in 1999.

U.S. District Judge Thomas Penfield Jackson ordered the journalists, including a reporter for The Times, to pay fines of $500 a day until each divulges information about his sources to lawyers for Wen Ho Lee, who worked at the Los Alamos National Laboratory in New Mexico. The order will not be enforced while it is being appealed.

Jackson’s ruling is the second in as many weeks in which a member of the Washington press corps has been found in contempt for failing to disclose confidential sources. At least three similar cases were argued in courts around the country over the last year, media lawyers said.

Lee is suing the Justice and Energy departments, claiming that through a series of news leaks government officials violated his privacy by disclosing personal information that, under the Privacy Act, should not have been revealed. At the time, he had been identified as the only suspect in the alleged theft of U.S. nuclear secrets for China.

Eventually the espionage case against Lee fell apart, producing a public apology from a federal judge, and the Taiwan-born naturalized U.S. citizen pleaded guilty to a single charge of mishandling classified information.

Last October, Jackson ordered the five journalists to sit for questions about their sources. The reporters declined to identify their sources, setting up the contempt proceeding.

“We are seeking redress, accountability and responsibility,” Brian Sun, an attorney for Lee, said Wednesday during a hearing in U.S. District Court here. Sun argued that the journalists’ lack of disclosure had “eviscerated” Lee’s attempts to hold government officials responsible for maligning his reputation.

“We did everything the courts and statutes have told us in order to make our case,” Sun said after the hearing. He called Jackson’s order “well-reasoned and well-founded,” and predicted it would be upheld.

“These are increasingly perilous days for American journalists who write about government affairs,” said Floyd Abrams, a lawyer for James Risen and Jeff Gerth of the New York Times, who first reported on Lee in March 1999 and are among the journalists facing sanctions.

The others are H. Josef Hebert of Associated Press; Pierre Thomas, a former CNN correspondent now with ABC News; and Bob Drogin of the Los Angeles Times.

“The ruling seriously jeopardizes the press’ ability to report about our government’s actions and the public’s right to know,” Martha Goldstein, The Times’ vice president for communications, said in a prepared statement. “The public is best served by the full and free exercise of 1st Amendment rights. We plan to appeal the ruling.”

The journalists argued that they had a legal privilege to protect their sources’ confidentiality, but Jackson ruled last October that those concerns were outweighed by the alleged wrongdoing done to Lee, and the lack of cooperation Lee had experienced in trying to identify the source of the leaks by interviewing government officials.

At Wednesday’s hearing, the reporters’ lawyers defended their refusal to divulge sources, saying they had answered most questions posed by Lee’s lawyers, and they should not be penalized for having substantially complied with Jackson’s order.

Only Abrams, speaking for Risen of the New York Times, acknowledged that the reporter had refused to answer questions within the scope of the court order, an admission that Abrams said was intended to expedite the case on appeal.

The assertion that Lee had spied for China in the heart of America’s nuclear establishment, initiated by the New York Times and quickly followed by other news organizations, was one of the most aggressively reported stories of 1999, and ultimately led to the paper acknowledging shortcomings in its coverage.

Citing anonymous sources, Risen and Gerth initially reported on March 6, 1999, that a Chinese American scientist had failed a polygraph test and was considered the prime suspect in the alleged transfer of technology to China. The article included information about the suspect’s employment history and finances. The two wrote eight articles on the case between March and June that year.

Lawyers for Hebert argued that one of his articles about Lee was basically a copy of reports that had previously surfaced publicly, and that it could not have contributed to a breach of Lee’s federal privacy rights.

Charles Tobin, an attorney for Thomas, argued that his client was in effect being punished for broadcasting information that turned out to be truthful and was the basis for Lee’s guilty plea for mishandling classified information.

Lee Levine, Drogin’s attorney, argued that the small number of questions that The Times’ reporter declined to answer would have required the disclosure of sources that bore on parts of reports that were far afield from the substance of Lee’s lawsuit. Drogin was questioned, among other things, about his source in an article quoting a law enforcement official as saying that the case against Lee had “hit the wall.”

“We continue to believe they were not within the scope of the court’s order, fairly read,” Levine said in an interview. “In other words, the answers would have shed no light on Wen Ho Lee’s Privacy Act claim against the government.”

But Jackson held that those determinations were not for the journalists to make.