Secrets, Lies and Media Privilege

Should government agents, operating on their own authority and in violation of privacy law, be allowed to smear Americans by leaking false information to the media? Are journalists who print those lies protected by the 1st Amendment from revealing their sources, thereby preventing those falsely accused from obtaining justice through lawsuits?

Those issues were raised by a federal judge’s recent ruling that demanded the names of the sources used by reporters who in 1999 printed false claims that scientist Wen Ho Lee had passed on nuclear secrets to China.

Lee was held in solitary confinement for nine months before the government’s case collapsed and 58 of the 59 charges against him were dropped. The conservative Reagan-appointed judge in the case said in freeing Lee, “I sincerely apologize to you, Dr. Lee, for the unfair manner in which you were held in custody by the executive branch.”

To sue for violation of his rights under the federal Privacy Act, Lee must identify the government agencies that leaked the defamatory information. Last week, New York Times reporters Jeff Gerth and James Risen, who did the most to hype claims of Lee spying for China, for which the paper later apologized, defied the judge’s order to reveal their sources. (Three other reporters -- including one from the Los Angeles Times -- are also under subpoena.)

A spokesperson for the New York Times defended its reporters’ actions, saying they “chose to take advantage of their 1st Amendment privilege on identifying sources.” What about the constitutionally protected rights of Lee, whose reputation, livelihood and freedom were destroyed by the irresponsible reporting of the Times? That is often the dire consequence of leaked government smears and is a serious concern in the defamation of individuals accused after 9/11 of having links to terrorism under the USA Patriot Act. Yet the knee-jerk reaction of the media is to claim a 1st Amendment protection, even if it results in defaming individuals on the basis of secret sources.

That claim of unfettered privilege was rejected by the U.S. Supreme Court the last time it visited this issue; it ruled in 1972 that reporters were required to reveal sources if the information went “to the heart” of a case and could not otherwise be obtained. That’s exactly the situation faced by Lee.

In an attempt to limit his request for information to what is essential to proceed with the privacy case, Lee’s attorney, Brian Sun, told the judge he would settle for knowing the names of the government agencies rather than the individuals who leaked Lee’s polygraph report, classified conversations with his superiors and other information. Indeed, Lee’s polygraphs, taken voluntarily and stamped with a notation that it was covered by the Privacy Act, tended to exonerate him but were distorted in the leaks to the media.

Journalists make the argument that it is sometimes necessary to protect whistle-blowers from reprisals for exposing the truth. However, that argument is undermined by the increasingly common practice of government sources using reporters to spread falsehoods or discredit foes, knowing reporters will hide their identity.

A recent example involves members of the Bush administration who allegedly leaked to reporters a CIA agent’s identity, a felony, to discredit her husband, former Ambassador Joseph C. Wilson IV, a Bush critic. A criminal investigation into the matter has been stymied as reporters invoke their right to not reveal their sources.

Clearly, a truly free press would have a higher stake in exposing the government’s manipulation of reporters -- and the truth -- than in trafficking in innuendo and unsubstantiated rumor.

In the Lee case, it is difficult to claim a reporter’s access to secret sources was vital to the functioning of a free press when it is clear that the reporters were being used to spread falsehoods. An example is the New York Times’ front-page story about Chinese spying headlined “China Stole Secrets for Bombs, U.S. Aides Say.” Those “aides” were never named, and the government’s subsequent indictment of Lee, after months of pressure from such stories in the Times and other media, did not even claim that Lee had been spying for China.

In the end, in a plea bargain forced by prosecutors threatening Lee with life in prison, the scientist admitted to one count of mishandling government data. The data had not even been classified as secret when Lee mishandled it. But no matter, his reputation and career had been destroyed, leaving U.S. District Judge James Parker to conclude that the government’s treatment of Lee “embarrassed our entire nation and each of us who is a citizen of it.”

Lee is now exercising a sacred legal right -- that of the accused to confront his accuser. Free-press advocates should be more interested in exposing how the government manipulated the media to malign a loyal citizen than in defending the right of reporters to protect anonymous sources.

Robert Scheer writes a weekly column for The Times and is co-author of “The Five Biggest Lies Bush Told Us About Iraq” (Seven Stories Press/Akashic Books, 2003).