Reporters in Wen Ho Lee Case Face Tough Defense

By: Joe Strupp Five journalists who've been ordered by a federal judge to identify government officials who provided information about former weapons scientist Wen Ho Lee might have a tougher time than most journalists trying to protect their sources. That's because Lee's attorneys have targeted the reporters as a last resort, according to a veteran media attorney.

Robert Lystad, an attorney with the Washington firm of Baker and Hostetler, which has previously represented The New York Times and the Society of Professional Journalists, among others, said most reporters facing a subpoena for confidential source information can usually fight the order by proving that those seeking the information have failed to try other avenues first. "Here, Lee has taken some other significant efforts by questioning other government officials," Lystad told E&P Online. "They have already taken 20 depositions of government officials."

The five journalists, Bob Drogin of the Los Angeles Times, James Risen and Jeff Gerth of The New York Times, H. Josef Hebert of the Associated Press, and Pierre Thomas, formerly of CNN, were ordered last week by U.S. District Court Judge Thomas Penfield Jackson to identify the sources, according to the L.A. Times. The directive came as the court considers a lawsuit filed by Lee against the federal government that alleges officials illegally revealed private information about Lee during its investigation of his alleged espionage at the Los Alamos National Laboratory in New Mexico four years ago.

Lee was later indicted on 59 felony counts for allegedly copying classified information onto computer tapes, but he was never charged with espionage and, eventually, pleaded guilty only to a single charge of mishandling classified information after most of the government's allegations were deemed unprovable.

Leaders of at least two prominent journalism organizations criticized the judge's directive, saying protection of sources is non-negotiable for reporters.

"Anytime journalists get hauled into court to give up sources, it is serious business," said Gordon "Mac" McKerral, president of the Society of Professional Journalists. "Journalists deserve some protection when reporting on things in the public interest." He added that the judge's directive, coming at a time when the government is investigating who leaked the name of a CIA operative to columnist Robert Novak, indicates that a real crackdown on the press is occurring. "I don't think it is a coincidence that this is coming out at the same time," McKerral said.

Peter Bhatia, president of the American Society of Newspaper Editors and executive editor of The Oregonian in Portland, also slammed the order. "The actions are troubling," he said. "The sanctity of sources is something that is very well-established and something journalists take very seriously." Although he did no see a link between the Lee case and the Novak situation, Bhatia agreed that the two incidents were a sign that the federal government was taking a harder line against news organizations. "The press is under siege and being unfairly chastised," he said.

The media organizations hit by the judge's order are expected to appeal.