How Now Wen Ho?

Nick Gillespie | June 29, 2005

Here's another story to think about in conjunction the Supreme Court's refusal to overturn contempt charges against The New York Times's Judith Miller and Time's Matthew Cooper for refusing to reveal the sources who gave them information about Valerie Plame (which I've written about here):

A federal appeals court ruled yesterday that four reporters must answer questions about their confidential sources on stories they produced about former nuclear scientist Wen Ho Lee.

The journalists reported in 1999 that Lee, who had worked at the Los Alamos National Laboratory in New Mexico, was a suspect in the theft of nuclear secrets for China. Lee alleges he was the victim of illegal government leaks to the media and has filed a lawsuit saying his reputation was ruined by disclosures of the investigation.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit found that although journalists have a qualified privilege to protect anonymous sources, it was outweighed by two key factors in Lee's case: The reporters had information central to his lawsuit, and Lee's attorneys had sufficiently exhausted their efforts to find the alleged leakers by interviewing government officials.

Information about the alleged leakers "goes to the heart" of the lawsuit Lee has filed under the Privacy Act, the court said. "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."

Whole story here.

One of the arguments made by Miller and Cooper (and their defenders) is that anonymous sources are necessary to uncover government wrongdoing; this was also part of the defense of Deep Throat/Mark Felt (though Edward Jay Epstein deconstructed that particular argument back in 1974).

From where Lee is standing--and from where Plame is standing, too--anonymous sources and the journalists who protect them doubtless seem less high-minded.

And for one last time: Why hasn't Bob Novak, the guy who actually broke Plame's cover, been forced to testify before the grand jury that has caused Miller and Cooper so much pain? Unless, of course, he has.

Comments

|6.29.05 @ 4:47PM|#

On a related note: Shouldn't people accused of contempt of court get a jury trial?

|6.29.05 @ 5:30PM|#

It is certainly refreshing to see a journalist skeptical about the arguments supporting a journalists privilege. Even from the point of view of a libertarian, the issue is much more complicated than "free press equals more liberty."

Sometimes the enforcement of laws, many of which are meant to protect liberty, would be upset by the reporter's privilege. It is hard, if not impossible, to know ex ante whether allowing a reporter's privilege is the liberty maximizing position.

You would certainly never get a sense of these complications by reading the mainstream media.

Xmas|6.29.05 @ 7:25PM|#

Someone already went over this, I forget where though.

The theory, if I remember correctly, is that the two journalists in the Plame case are being put through the wringer because they received phone calls from someone in the White House. With WH phone records in hand, the prosecutor knows who was called, but not who did the calling. So the prosecutor is trying to find out who in the WH is lying about talking to the reporters and leaking Plame's identity.

Therefore, the reporters are material witnesses in a perjury and obstruction of justice case related to the leaking of a CIA operative's name case.

Xmas|6.29.05 @ 7:31PM|#

Found it:

http://www.iht.com/getina/files/246473.html

|6.30.05 @ 1:38AM|#

Why hasn't Bob Novak, the guy who actually broke Plame's cover, been forced to testify before the grand jury...

Why would you want to talk to that obnoxious jackass if you didn't have to?

|6.30.05 @ 8:41AM|#

Regular joes should get the same priviliges as a journalist.