BROOKE GLADSTONE: This week the Senate Judiciary Committee held a hearing on a proposed federal shield law that would grant journalists a special privilege to keep their sources confidential, even if called to testify. The Justice Department failed to appear, but in statements prepared ahead of time, Deputy Attorney General James Comey opposed the bill as "bad public policy, primarily because it would bar the government from obtaining information about media sources, even in the most urgent of circumstances." Lucy Dalglish, head of the Reporters Committee for Freedom of the Press, told the New York Times that from 1973 to 1978 there were 99 legislative attempts at a federal shield law. None passed. But that did that deter nine lawyers and journalists from testifying for a shield. Here's one of the lawyers, Lee Levine.
LEE LEVINE: In all, over the last four years, three federal courts have appeals for firm contempt citations issued to reporters who declined to reveal confidential sources, each court imposing prison sentences on journalists more severe than any previously known in American history.
BROOKE GLADSTONE: Lee Levine represents Los Angeles Times and Associated Press reporters in the investigation into who leaked information about nuclear scientist Wen Ho Lee who lost his job at Los Alamos in 1999. We haven't discussed this case for a while, so we've asked Paul McMasters, First Amendment ombudsman for the Freedom Forum, to bring us up to speed.
PAUL McMASTERS: The Wen Ho Lee case goes all the way back to the early eighties when the FBI and the Energy Department first got interested in him. And over the next two decades, they regarded him first as a potential spy and then as a potential source. So this went back and forth for quite some time, until they wanted to nail him for stealing secrets about missiles and sharing them with China.
BROOKE GLADSTONE: And so they basically tried to sweat the suspect by leaking stuff about him to the media.
PAUL McMASTERS: That is one interpretation of it. I think part of the reason for leaking too was the feeling by some officials that they needed to let the public know that they were doing something. The end result was that they filed 59 charges against Mr. Lee, wound up not being able to make the case for 58 of them, and he pled guilty to one, and got off on the basis of the nine months he'd already served in isolation. Subsequent to that, Mr. Lee filed a lawsuit against the Department of Energy, the FBI and the Department of Justice, against unknown individuals who may have leaked information. And the claim was that that was in violation of the Privacy Act and that his reputation was harmed. In trying to get to the bottom of that, his attorneys deposed more than 20 people in those departments and still were not able to find out who the sources were. And so, they then went after six reporters who had dealt with those sources, one from the Associated Press, two from the New York Times, one from the Los Angeles Times, and one from CNN who now works at ABC. Another reporter will be coming up on August 2nd, and he's from the Washington Post, Walter Pincus.
BROOKE GLADSTONE: There was an appeal late last month. The court came back and rejected the reporters' arguments and said they must testify. So what happens if they don't? Will any of these reporters be following Judith Miller to jail?
PAUL McMASTERS: I think that's an awfully good possibility because, for the same reasons that Judy Miller went to jail, these reporters feel duty bound to protect their sources.
BROOKE GLADSTONE: Now, when New York Times reporter Judith Miller refused to reveal who leaked to her the name of CIA operative Valerie Plame, even some journalists thought that she should have, that in fact, hers was a poor case on which to hang arguments for a reporter's right to protect sources. Is the Wen Ho Lee case a better sell for a journalist shield law?
PAUL McMASTERS: The Wen Ho Lee case is a much better sell on its facts. We're talking here about not a crime, per se, we're talking about an attempt to get civil damages for an alleged harm to the reputation. And the attorneys representing those reporters don't believe that Mr. Lee and his attorneys have gone far enough in trying to determine those sources on their own.
BROOKE GLADSTONE: [OVERTALK] They did depose 20 people.
PAUL McMASTERS: Twenty people, and the attorneys for the reporters point out a long list of other people who probably could be deposed, in all three of those departments, that are named in the suit. Additionally, they say that the Privacy Act, which Wen Ho Lee says was violated, doesn't really cover some of the circumstances under which the reporters were writing their articles. And it's important to note here that, while Mr. Lee's suit focuses on the damage done to his reputation by the early reporting, the fact of the matter is that the media was very helpful in making his case for him later on in its reporting.
BROOKE GLADSTONE: But, on the bright side, wouldn't a decision against the reporters in this case also discourage malicious leaders from trying to do their dirty work through reporters or behind the shield of reporter confidentiality?
PAUL McMASTERS: I suppose you might read it that way. What I would think is it would discourage malicious leakers, and all other leakers. The fact of the matter is, even a malicious leak can be put to good purpose.
BROOKE GLADSTONE: All right. Thanks very much.
PAUL McMASTERS: You're very welcome.
BROOKE GLADSTONE: Paul McMasters if the First Amendment ombudsman for the Freedom Forum. [MUSIC UP AND UNDER]
BOB GARFIELD: Coming up, soldiers who fight to preserve history on the battlefield.