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D.C. Circuit upholds contempt finding against 4 reporters

By The Associated Press
06.28.05

WASHINGTON — A federal appeals court today upheld civil contempt of court findings against four journalists who refuse to reveal their sources for stories about former nuclear scientist Wen Ho Lee.

Lee has filed a lawsuit alleging government officials leaked information about him to reporters, violating the Privacy Act in pointing to him as a suspect in the possible theft of nuclear secrets for China.

A federal court did not abuse its discretion in finding the journalists in contempt for refusing to answer questions under oath about their sources, ruled the unanimous three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia.

The four reporters are H. Josef Hebert of the Associated Press, The New York Times' James Risen, Robert Drogin of the Los Angeles Times and Pierre Thomas, formerly of CNN and now of ABC.

In Wen Ho Lee v. Department of Justice, et al., the D.C. Circuit reversed a contempt finding against New York Times reporter Jeff Gerth, saying there was insufficient evidence against him to sustain such a conclusion.

The legal troubles for the four reporters, who face fines of $500 a day, come at a time of increasing hostility for the news media in the courts.

Yesterday, the Supreme Court refused to intervene in two cases in which reporters Judith Miller of The New York Times and Matthew Cooper of Time magazine face jail time for refusing to reveal their sources to a federal grand jury. In those cases, a federal prosecutor is investigating the Bush administration's leaking of the identity of CIA officer Valerie Plame. (The cases are Miller v. United States, and Cooper v. United States.)

Lee's name surfaced in the news media in the midst of a political controversy during the Clinton administration in which Republicans accused the White House of ignoring China's alleged theft of U.S. nuclear secrets.

The information Lee is seeking — the identity of any leakers — "goes to the heart of his case," said the decision written by D.C. Circuit Judge David Sentelle.

Lee was fired from Los Alamos National Laboratory in New Mexico. Indicted on 59 felony counts alleging he mishandled nuclear-weapons information, Lee pleaded guilty to a single charge after spending nine months in solitary confinement.

His treatment drew an apology from a federal judge, who said the case had embarrassed the nation and every citizen.

In Lee's lawsuit, "the relevant information is the identity of the individuals who may have leaked information in violation of the Privacy Act," Sentelle wrote. "If he cannot show the identities of the leakers, Lee's ability to show the other elements of the Privacy Act claim, such as willfulness and intent, will be compromised."

The journalists have refused to reveal even the employer of their unidentified sources, information that arguably would have been sufficient to support at least a portion of Lee's claim, Sentelle wrote.

The appeals court said Lee's lawyers did not have to question more witnesses before turning to the reporters for answers.

The appeals court said that Lee had met his burden by taking 20 depositions, and that he is not required to question every person who conceivably could have leaked the information before questioning the journalists.


Update
Full D.C. Circuit won't hear journalists' appeal of contempt order
One dissenting judge says Wen Ho Lee's claim for compensation pales in importance to people's right to know about what was believed to be nuclear espionage. 11.04.05

Previous
D.C. Circuit weighs reporter-contempt ruling in Wen Ho Lee case
As part of lawsuit against federal government, nuclear scientist's attorney asks judges to force journalists to identify sources of leaks. 05.11.05

Related

High court won't hear reporters' appeal over subpoenas

Time's Matthew Cooper, New York Times' Judith Miller face up to 18 months in jail for refusing to reveal sources in CIA leak case. 06.27.05

Time to turn over reporter's notes

Meanwhile, The New York Times says it is 'deeply disappointed' by magazine's decision to hand over Matthew Cooper's files. 06.30.05

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