Journalism’s next big battle The Wen Ho Lee case could deal a harsher blow to investigative reporting than Plamegate did BY MARK JURKOWITZ

Two months ago, the surprise identification of former FBI official W. Mark Felt as the nation’s most famous confidential source ended a three-decade mystery and triggered a noisy, partisan debate over whether "Deep Throat" was a Watergate hero or a self-serving traitor.

This summer, the media and political establishments have been riveted by the tale of Valerie Plame, the CIA operative whose public outing triggered a criminal probe that has reached deep into the Bush White House. For refusing to disclose her confidential sources in the case, New York Times reporter Judith Miller has spent more than a month behind bars, becoming both a media martyr and a public celebrity.

Yet for all the buzz and hand-wringing generated by Deep Throat and Plamegate, another battle is likely to have an even greater impact on journalists and those who provide them with information under the cloak of anonymity. Currently grinding its way through the courts, the case brought by Wen Ho Lee — the former nuclear scientist who was suspected of espionage — pits an individual’s right to privacy and to protect his or her reputation against the free flow of information and the public’s right to know.

Four reporters — James Risen of the New York Times, former CNN staffer Pierre Thomas, H. Josef Hebert of the Associated Press, and Bob Drogin of the Los Angeles Times — are now under contempt citations for failing to disclose confidential sources in connection with Lee’s suit against several government agencies, which alleges the government leaked personal information that violated his privacy and helped fuel a feeding frenzy against him.

Lee’s assertion of his legal rights has put journalists directly in the cross hairs. And First Amendment advocates are worried, angry, and fearful that this case will do more damage to investigative journalism than anything that comes out of the Plame probe.

"While we’ve always had a certain number of federal prosecutors going after journalists, we’re seeing a different type of phenomenon — the federal employee who’s been wronged. If you can somehow compel the journalists to be agents of discovery, it’s going to have a chilling effect," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "This is very troubling."

"In some ways this ... has the potential to have much broader implications in the long run. This is more of a garden-variety day-to-day journalism issue than the Valerie Plame case," says Jane Kirtley, Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota. "It is not the role of the courts ... or private litigants to impose standards on the press by means of a coercive tactic like this."

Adds Kirtley ominously, "I think this is just bizarre."

RUSH TO JUDGMENT

A former Los Alamos Nuclear Laboratory scientist, Lee was indicted in December 1999 on 59 counts of mishandling classified information. But the much-ballyhooed case fizzled, and Lee ended up pleading guilty to only one count. The judge who released him apologized for the government’s actions, and President Clinton voiced his regrets as well.

It wasn’t exactly the media’s finest hour either, as critics complained that coverage created a rush to judgment about Lee’s guilt. In September 2000, the New York Times published a rare half-page note to readers admitting that its reporting had failed to "give Dr. Lee the full benefit of the doubt" and "did not pay enough attention to the possibility that there had been a major intelligence loss in which the Los Alamos scientist was a minor player, or completely uninvolved."

Dalglish says that the eventual backlash of sympathy toward Lee was so potent that "you can also argue that the media did a lot to rehabilitate his reputation in recent years. A lot of people feel sorry for him."

Shortly after his indictment, Lee filed suit against several government agencies, claiming their leaks of his personal information to news organizations violated the Privacy Act, which prohibits such agencies from intentionally disclosing personal and private records. (Lee’s lawyer failed to respond to several Phoenix phone calls for comment.)

After making efforts to discover the origin of the leaks through government channels, Lee issued subpoenas to the journalists, who unsuccessfully sought to quash them. In a dramatic ruling last summer, US District Court judge Thomas Penfield Jackson found Risen, Drogin, Thomas (now at ABC), Hebert, and the New York Times’ Jeff Gerth in contempt for refusing to disclose their sources and ordered them to pay fines of $500 a day — although those fines are on hold pending the appeals process.

The news organizations reacted with dismay. The Los Angeles Times issued a statement saying that the "ruling seriously jeopardizes the press’s ability to report about our government’s actions and the public’s right to know." A similar message from the New York Times said that "confidential sources are critical for us to give the public as broad a perspective as possible on the important issues of the day, particularly when they concern the actions of government."

A challenge to Jackson’s ruling failed on June 28, 2005, when the US Court of Appeals for the District of Columbia Circuit upheld the contempt citations against all the reporters except Gerth. In late July, attorneys for the other four journalists petitioned for a rehearing before the appeals court.

"I’m not going to speculate about whether or not we get a rehearing," says Risen’s attorney, Joel Kurtzberg. But he does point out that if the court does not agree to the petition, the next option to consider would be the US Supreme Court.