Reporter Robert Drogin of The Los Angeles Times and former CNN reporter Pierre Thomas, now with ABC News, refused to disclose their sources Thursday despite a federal judge’s order to do so.
Drogin and Thomas were the remaining two of five journalists ordered by U.S. District Judge Thomas Penfield Jackson on Oct. 9, 2003 to reveal who in the government may have disclosed derogatory information to them about Lee, who was a chief suspect in an espionage case, and to provide Lee’s attorneys with notes and other documents from their newsgathering.
Lee is suing the U.S. Energy Department and Justice Department, alleging government officials supplied reporters with private information about him and suggested he was a suspect in an investigation into the possible theft of nuclear secrets from Los Alamos National Laboratory in New Mexico.
Lee was indicted in 1999 on 59 felony counts accusing him of mishandling nuclear weapons information. He spent nearly nine months in solitary confinement, then was released in September 2000 after pleading guilty to a single count of downloading nuclear weapons design secrets to a non-secure computer.
On Wednesday, a third journalist, H. Josef Hebert of the Associated Press, also refused to comply with the subpoena after he was deposed for over two hours by Lee’s lawyers and repeatedly asked to disclose sources for stories about Lee, according to Lee Levine, the attorney representing Hebert and Drogin.
“He (Hebert) respected his commitments to his sources,” Hebert’s lawyer, Lee Levine, told Reuters.
This week’s depositions come less than a month after New York Times reporters Jeff Gerth and James Risen defied the same subpoena.
Judge Jackson’s order had said “the court has some doubt that a truly worthy First Amendment interest resides in protecting the identity of government personnel who disclose to the press (what) the Privacy Act says they may not reveal.”
By refusing to obey Jackson’s order, which denied the journalists’ motions to drop the subpoenas, the reporters could face fines or be imprisoned for contempt of court.
Several media advocacy groups and attorneys say the reporters’ refusal to obey the judge could set an important precedent for journalistic privilege.
Kevin Goldberg, a lawyer for the American Society of Newspaper Editors, said: “I think that because of the magnitude not only of the (Wen Ho Lee) case and the very sensitive issues, but also the prominence of the journalists involved, that it will be a precedent-setting case.”
Levine told Reuters: “I do think that the Wen Ho Lee case is one part of what appears to be a pattern of recent judicial resistance to recognizing and enforcing the privilege.”
U.S. law does not grant absolute privilege to journalists comparable to that of a priest or a doctor, but reporters have long argued that the First Amendment implicitly grants that privilege.
Lee’s attorneys have also notified The Washington Post that they plan to question veteran reporter Walter Pincus, but a deposition has not been scheduled, according to Mary Ann Werner, vice president and counsel for The Post. Pincus and The Post were not cited in Jackson’s Oct. 9 order.