Government, news media settle Wen Ho Lee lawsuit

June 3, 2006
News Media Pay in Scientist Suit
By ADAM LIPTAK
New York Times

Wen Ho Lee, an atomic scientist once suspected of espionage, yesterday settled an invasion of privacy lawsuit against the government for $1,645,000.

Five news organizations are paying almost half that sum to avoid contempt sanctions against their reporters.

In the suit, Dr. Lee said the government had violated privacy laws by telling reporters about his employment history, finances, travels and polygraph tests. The settlement followed seven months of unusual negotiations among Dr. Lee, the government and lawyers for the news organizations.

The five reporters were not defendants, but had been held in contempt of court for refusing to testify and ordered to pay fines of $500 a day for refusing to disclose the identities of their confidential sources.

The news organizations ?- ABC News, part of the Walt Disney Company; The Associated Press; The Los Angeles Times, part of the Tribune Company; The New York Times; and The Washington Post ?- agreed to contribute $750,000 to the settlement.

Specialists in media law said such a payment by news organizations to avoid a contempt sanction was almost certainly unprecedented. Some called it troubling.

In a joint statement, the five organizations said they made the payment reluctantly.

"We did so," they explained, "to protect our confidential sources, to protect our journalists from further sanction and possible imprisonment and to protect our news organizations from potential exposure."

A senior vice president of ABC, Henry S. Hoberman, said the decision to settle was made after a long, hard legal fight.

"The journalists found themselves between a rock and a hard place after years of seeking relief from the courts and finding none," Mr. Hoberman said. "Given the absence of a federal shield law and the consistently adverse rulings from the federal courts in this case, the only way the journalists could keep their bond with their sources and avoid further sanctions, which might include jail time, was to contribute to a settlement between the government and Wen Ho Lee that would end the case."

Federal courts have been increasingly hostile in recent years to assertions by journalists that they are legally entitled to protect their confidential sources. Last year, Judith Miller, who was a reporter for The New York Times, spent 85 days in jail before agreeing to testify to a grand jury investigating the disclosure of the identity of a C.I.A. operative.

Dr. Lee, who worked at Los Alamos National Laboratory in New Mexico, brought his case against the government in 1999, the year federal investigators accused him of giving nuclear secrets to China.

Dr. Lee spent nine months in solitary confinement awaiting trial. Ultimately, he pleaded guilty to one felony count of illegally gathering and retaining national security data, and he received an apology from the judge in the case.

A lawyer for Dr. Lee, Brian A. Sun, said the settlement furthered two goals.

"We wanted to send a message to the government that leaking information protected by law is not justified, even if they think it's politically expedient to do so," Mr. Sun said. "And the fact that the journalists contributed to the settlement recognizes the role they played in the series of unfortunate events that surrounded Dr. Lee's case."

The settlement included an unusual condition, Mr. Sun said.

"The government didn't want any of the money going into his pocket," Mr. Sun said of Dr. Lee.

In the end, Dr. Lee agreed to apply the government's payment to lawyers' fees, litigation costs and taxes. The money from the news organizations was unrestricted.

The fines against the reporters ?- Robert Drogin of The Los Angeles Times, H. Josef Hebert of The A.P., Walter Pincus of The Washington Post, James Risen of The New York Times and Pierre Thomas, formerly of CNN and now of ABC News ?- were suspended while they appealed.

The judge in the case, Rosemary M. Collyer of Federal District Court in Washington, vacated the contempt sanctions as part of the settlement. The settlement also moots a pending appeal to the United States Supreme Court.

Though Mr. Thomas covered Dr. Lee for CNN, part of Time Warner, it did not participate in the settlement.

"CNN paid over $1 million toward Pierre's defense in this matter," a spokeswoman, Laurie Goldberg, said. "We parted ways because we had a philosophical disagreement over whether it was appropriate to pay money to Wen Ho Lee or anyone else to get out from under a subpoena."

The five other organizations made roughly similar contributions to the settlement, lawyers in the case said.

The government has settled similar privacy suits in the past. In 2003, it paid Linda R. Tripp, a central figure in the Monica Lewinsky scandal, $595,000 to settle a suit that accused it of leaking employment information about her.

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said she viewed the settlement in Dr. Lee's case with mixed emotions.

"It's a huge disappointment, and it's certainly not an ideal resolution," Ms. Dalglish said. "But it's probably as good as we could have expected under the circumstances."

The New York Times has long maintained that it will not settle libel suits in the United States for money. Its lawyers said the payment to Dr. Lee did not violate the principles behind that policy.

"It's apples and oranges," George Freeman, an assistant general counsel of The New York Times Company, said. "That principle remains. In libel suits, people aren't sent to jail."

The Times covered the charges against Dr. Lee aggressively. But in September 2000, it published a lengthy note "from the editors" saying that despite "careful reporting that included extensive cross-checking," there were "some things we wish we had done differently in the course of the coverage to give Dr. Lee the full benefit of the doubt."

The note said The Times should have pushed harder and sooner "to uncover weaknesses in the F.B.I. case against Dr. Lee" and to assess the scientific, technical and investigative assumptions behind the case.

In their statement yesterday, the news organizations said the settlement was not connected to their coverage of the case against Dr. Lee.

"The journalism in this case ?- which was not challenged in Lee's lawsuit ?- reported on a matter of great public interest," the statement said. "And the public could not have been informed about the issues without the information we were able to obtain only from confidential sources."

Jane E. Kirtley, a professor of media law and ethics at the University of Minnesota, said she found the news organizations' decision to participate in the settlement "profoundly disturbing."

"These are very strange times in which we are living," Professor Kirtley said, "and it does appear that sometimes decisions have to be made that would have been unthinkable five years ago. But to make a payment in settlement in this context strikes me as an admission that the media are acting in concert with the government."

Ms. Dalglish of the Reporters Committee disagreed.

"I view it," she said, "purely as, 'What can we do to get the least damaging result?' "

Mr. Freeman, the lawyer for The Times, also rejected Professor Kirtley's characterization.

"We acted in the best interests of our reporters and our news organizations to protect our sources and protect our journalists," he said. "We were not acting in concert with anyone. The three parties managed to resolve the matter."

News media lawyers said they hoped that the settlement would help prompt a change in federal law. The Supreme Court has ruled that the First Amendment offers reporters no protection, at least in the context of grand jury subpoenas.

Though most states have so-called shield laws that protect journalists' confidential sources, those laws are usually irrelevant in cases brought in federal court.

The settlement in Dr. Lee's case, Professor Kirtley said, "certainly underscores the need for meaningful journalists' shield laws, now."