Reporters Insist Others, Not They, Be Targeted in Leak Case

Lawyers for five journalists found in contempt for refusing to name confidential sources told a federal appeals court Monday that a former nuclear weapons scientist who is suing the government should have tried harder to get the information from other sources before taking the journalists to court.

But the lawyer for former weapons scientist Wen Ho Lee said that even government investigators were stymied in their attempt to identify who might have leaked information to the press about a government espionage investigation of Lee in the late 1990s.

The lawyer condemned a culture of “officially authorized” leaks that impugns reputations without giving the targets of leaks legal recourse.

The three-judge panel of the U.S. Court of Appeals for the District of Columbia gave no firm indication of how it would rule in the case, the latest in a recent series involving court-ordered disclosures of confidential sources that has alarmed press advocates and news organizations.

The journalists fighting the contempt order are James Risen and Jeff Gerth of the New York Times, Bob Drogin of the Los Angeles Times, H. Josef Hebert of Associated Press and Pierre Thomas, a former CNN correspondent now with ABC News.

The reporters are appealing an August 2004 order from U.S. District Judge Thomas Penfield Jackson fining each of them $500 a day for failing to answer questions about sources for stories they wrote in 1999. The stories detailed a government investigation of Lee, a former employee at the Los Alamos National Laboratory who once was suspected of passing secrets to China.

When the espionage case against Lee collapsed, he sued the government, claiming that officials violated federal privacy law by leaking information about him to the press. He eventually pleaded guilty to a single charge of mishandling classified information after being indicted on 59 counts and being held in solitary confinement for nine months. The fines against the journalists have been stayed pending appeal.

At the hearing, the journalists’ lawyers argued that Lee and his lawyers had failed to meet a legal requirement that they exhaust other avenues to learn the sources of the stories before seeking to extract the information from the reporters.

Court records indicate that Lee’s lawyers had taken 21 depositions of possible witnesses, including top officials and spokesmen for the Energy and Justice departments.

“We were asking questions every which way but Sunday,” Brian Sun, a Los Angeles-based lawyer representing Lee, told the court. He said a top FBI investigator had said it would be “basically impossible” to identify the sources of the leaks.

Sun also asserted that the Justice Department’s public integrity section, which handles cases of suspected criminal misconduct by government employees, was unable to uncover the sources of the allegedly illegal leaks.

But the journalists’ lawyers said the questioning of the government witnesses was hardly exhaustive.

“We submit they didn’t even fatigue them,” said Charles Tobin, a lawyer for Thomas. Tobin said questions about Thomas were raised in just five of the depositions, and that in three instances the questioning was limited to whether the sources were generally familiar with the reporter.

Floyd Abrams, a lawyer for Risen and Gerth, said at least 35 other officials or individuals who were not pursued for questioning by Lee and his lawyers were either present at meetings or had access to relevant information.

Lee Levine, a lawyer for Drogin, said four of the questions Drogin declined to answer pertained to whether then-Energy Secretary Bill Richardson had ever provided information to him off the record. But Levine said Lee’s lawyers never asked Richardson whether he had ever provided information to Drogin off the record.

Levine argued that the lower court did not adequately explain why Drogin’s refusal to answer those questions constituted contempt. He said in court papers that Drogin testified for three hours and answered more than 98% of the questions posed to him.

The judges were skeptical of the positions of both sides.

“How do you know that?” Judge A. Raymond Randolph asked when Sun said the government never uncovered the source of the leak.

But Randolph also seemed to doubt the harm to the news-gathering process if journalists were required in limited cases to identify the agency a source worked for -- without naming the source outright. Lee’s lawyers have indicated that they would be satisfied with such a description.

Randolph also seemed concerned that the journalists might be shielding people who -- in divulging personal information about federal employees -- were violating the law.

“What is the public interest in ensuring that individuals should be free in violating the Privacy Act?” he asked Abrams.

Abrams replied that the New York Times’ stories shed light on an investigation that some believed was bogging down for political reasons. The Lee case is a test of how far journalists can go under federal law to protect their sources when their testimony is considered relevant or important in civil suits.

In a separate case, journalists for Time magazine and the New York Times are appealing an order from another panel of the appeals court here.

The court ordered them jailed for up to 18 months for refusing to divulge their sources to a special prosecutor investigating the leak to reporters of the name of an undercover CIA agent. The journalists in that case are seeking U.S. Supreme Court review.