11/07/05

Reporters in courtroom peril: CIA leak case, Wen Ho Lee lawsuit


WASHINGTON (AP) -- Already under fire, reporters protecting their sources' identities are facing further challenges in the CIA leak case and in a lawsuit brought by former nuclear scientist Wen Ho Lee.

A lawyer for Vice President Dick Cheney's former chief of staff has said First Amendment issues could become important in the criminal prosecution of I. Lewis Libby on charges of obstruction, perjury and lying to the FBI.

In Lee's lawsuit, reporters lost a round last week as the former scientist continued his effort to find out who in the government told journalists he was under suspicion of passing nuclear secrets to China. Lee was never charged with espionage.

A federal appeals court refused to consider the reporters' appeal, and a request to the Supreme Court to hear the case would be the next step.

News organizations are still pondering recent punishments given to journalists who defied court orders. New York Times reporter Judith Miller spent 85 days in jail in the CIA leak probe, and TV reporter Jim Taricani spent four months in home confinement. He refused to disclose the source of a videotape that showed a public official taking a cash bribe.

In the CIA leak probe, Miller went to jail for refusing Special Counsel Patrick Fitzgerald's demands that she disclose her conversations with Libby. She eventually relented and testified that he told her about the CIA status of the wife of Bush administration critic Joseph Wilson.

Now that Fitzgerald has his criminal case, it's Libby's turn to decide how much information he needs from journalists.

"It would not surprise me: Instead of Fitzgerald coming after reporters, now we have Libby coming after reporters," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "Here comes the defense asking about all sorts of things that" Fitzgerald agreed he wouldn't ask them about.

"As well, there's nothing to say Libby wouldn't come up with other journalists as witnesses that he would want to subpoena," Dalglish said.

St. John's University law professor Michael Simons says Libby's right to a fair trial may entitle his lawyers on cross-examination to find out whom else -- in or out of government -- reporters spoke to about the identity of covert CIA officer Valerie Plame.

In 1972 the Supreme Court held that reporters, like other citizens, have a duty to provide grand juries with information relevant to criminal investigations.

Regarding trials, lower courts at the state and federal levels have ruled that if certain criteria are met, journalists can also be subpoenaed to testify, and often the party issuing the subpoena in a criminal case is the defendant.

In the Lee lawsuit, the former scientist's efforts to find out the identities of the reporters' sources "goes to the heart" of his case, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled in June. On a 4-4 vote, the full appeals court refused Nov. 3 to consider the reporters' arguments. A majority of the 10-member court must agree in order for a case to be heard.

Lee was fired from Los Alamos National Laboratory in New Mexico when his name surfaced in the news media as a suspect in an espionage probe. After nine months in solitary confinement, he pleaded guilty to a count of downloading nuclear weapons data to portable tapes.

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

A different federal judge has cited reporters in Lee's lawsuit for contempt of court for refusing to reveal their sources and has ordered fines of $500 per day. The penalty has been placed on hold while appeals are under way.

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