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Government, Media Settle with Scientist over Privacy Lawsuit

June 5, 2006 at 6:35 PM EDT

JEFFREY BROWN, NewsHour Correspondent: Wen Ho Lee, the former nuclear weapons scientist once suspected of being a spy, settled his 6.5-year-old privacy lawsuit Friday, and will receive $1.6 million — from the government and from five news organizations — in a very unusual agreement.

Lee had accused the Energy and Justice Departments of violating his privacy rights by leaking information that he was under investigation as a spy for China.

Lee was fired from his job at the Los Alamos National Laboratory in New Mexico, but never charged with espionage. He was held in solitary confinement for nine months, then released in 2000, after pleading guilty to mishandling computer files.

His lawsuit against the government had turned into a fight over a reporter’s use of confidential sources.

The Associate Press, the “New York Times,” the “Los Angeles Times,” the “Washington Post” and ABC News agreed to pay Lee $750,000 as part of the settlement, ending contempt of court proceedings against their reporters, who had refused to disclose the sources of their stories about the espionage investigation.

And we get more on this case and the issues raised from Bruce Sanford, an attorney in private practice, who specializes in First Amendment media cases. He’s not involved with any parties in the Wen Ho Lee case.

Welcome to you.

BRUCE SANFORD, First Amendment Attorney: Thank you.

JEFFREY BROWN: This, as we said, was a case against the government. Why did reporters become so important?

BRUCE SANFORD: Jeff, reporters got embroiled in this case when Wen Ho Lee tried to subpoena them in order to find out who had leaked information to them from the government about him and about the investigation against him.

JEFFREY BROWN: And what was he trying to get from them that would help in his case?

BRUCE SANFORD: Well, he was filing a Privacy Act claim against the government, which essentially says, the government has improperly disclosed information about me, or about the investigation against me.

Linda Tripp, you’ll remember, in the Monica Lewinsky scandal, also filed a Privacy Act claim against the government a few years back, and that case was settled.

So, Privacy Act claims usually are filed by government employees against the government, trying to find out who leaked information about them.

Refused to reveal sources

JEFFREY BROWN: Now, in this case, the reporters and their news organizations refused to reveal their sources. What was their argument, and what happened?

BRUCE SANFORD: Their principal argument was that they had a constitutionally based privilege to protect the identity of their confidential sources, that they'd promised confidentiality to those sources and they wanted to honor that promise.

JEFFREY BROWN: And what happened? Did they -- what kind of punishment did they face?

BRUCE SANFORD: Well, the federal courts -- particularly the federal court here in Washington -- was incredibly unsympathetic to their argument. And they said that Wen Ho Lee had essentially exhausted other ways of finding out who had leaked the information in government; and therefore, the reporters did have to disclose.

And when the reporters refused to do that, the district judge in Washington sentenced them to contempt. And that was appealed all the way up. And the media, the reporters lost -- conclusively lost, decisively -- all the way up.

So, they didn't have the protection of any legal protection afforded them. And that's somewhat different than federal law has been in the past.

Why did they settle?

JEFFREY BROWN: Now, that led to last Friday's settlement.

BRUCE SANFORD: Right, exactly.

JEFFREY BROWN: Why did they say that they were settling?

BRUCE SANFORD: Well, they said they were settling to protect their reporters, because their reporters were facing huge fines and jail time, possibly, and also to protect the sources. Where essentially, the media companies were saying, as they were putting their money where their mouths are when it comes to saying, we honor the promises made to sources.

So the good news, I suppose, here for sources is that media companies are willing to put out money to protect their confidentiality.

The public also, I think, wins in that sense, because there are many stories, including stories about investigations in government, that just don't get published or broadcast unless confidential sources are used.

JEFFREY BROWN: Of course, the bad news, as some people saw it for the news organizations, was that they had to pay.

BRUCE SANFORD: Yes. But they were, as I say, either facing -- the reporters were facing and the organizations were facing -- huge fines and possibly jail time. So, they were in a hard place.

The companies said, look, this is not a great place to be. We either try to participate and contribute to this settlement with Wen Ho Lee, or our reporters are going to face jail time.

That's a tough place to be. You can see why they did it.

There was debate on going forward

JEFFREY BROWN: Several of the news reports said that this was unusual, if not unprecedented.

BRUCE SANFORD: I think that's right. Time will tell whether this case is aberrational or not. It isn't clear to me that you're going to see that many cases like this.

I think a lot of people felt that the -- it's not only unprecedented, that it's a dangerous precedent, or that it's ghastly to have the media companies contributing money to a government settlement.

I think all those things are true superficially. Analytically, I think you can see why the media companies did it.

JEFFREY BROWN: One company, CNN, did not go along. Pierre Thomas has been their reporter before he went to ABC. And they said they had a philosophical difference here. So there was clearly some debate about whether to go forward.

BRUCE SANFORD: Oh, I think reasonable people can differ on this. CNN did have the luxury of not having a reporter currently on their payroll who was facing jail time. Pierre Thomas had gone to ABC during the pendency of the lawsuit.

Rethinking confidential sources

JEFFREY BROWN: And in the meantime, I noticed today the Supreme Court rejected the appeal by the reporters in this case. And I gather they could have just dismissed it, based on the settlement.

BRUCE SANFORD: They could have. They could have just waited for the case to have been withdrawn from them and said, well, it's settled. It's gone. It's moot.

But they did not do that.

I think the Supreme Court is sending a signal there that says, we're not interested in creating a First Amendment-based privilege for reporters to protect sources. If you want that, you'd better go to Congress. And that's what the reporters are doing.

JEFFREY BROWN: And you work with news organizations. Is there a lot of rethinking now about what promises can be offered, and with what kept?

BRUCE SANFORD: I think there is. I think journalism based on confidential sources is going to be done more carefully, more surgically -- certainly more thoughtfully -- than ever before, because this settlement raises, potentially, the cost of publishing or broadcasting a story based on confidential sources.

JEFFREY BROWN: All right. Bruce Sanford, thanks a lot.

BRUCE SANFORD: You're welcome.