The jailing of Judith Miller by special prosecutor Patrick J. Fitzgerald, and the threat of imprisonment faced by Time‘s Matthew Cooper (before his bosses caved and handed over his emails) for not giving up their sources has led to an extended meditation by many in the media on how they gather information.
Some pundits have pointed out other cases in which anonymous sources have given journalists information that has landed reporters on some shaky legal ground. To be sure, there is a certain danger in crying wolf every time a reporter is asked to testify, and the Judith Miller situation has quickly become the benchmark by which all other cases are judged. But all that the law requires is a single precedent-setting case in order to move everyone one step forward — or backward. The jailing of Miller has done just that, with a possible spillover effect on two cases currently winding their way through the court system, as the Washington Post and the Boston Phoenix have recently pointed out.
In the August 12 edition of the Phoenix, Mark Jurkowitz explored one case in particular that he thinks “is likely to have an even greater impact on journalists and those who provide them with information under the cloak of anonymity [than the Judith Miller case].”
The case stems from the long-forgotten saga of Wen Ho Lee, the former Los Alamos Nuclear Laboratory scientist who was indicted in December 1999 on 59 counts of mishandling classified information. Despite a public feeding frenzy, fueled in no small part by a press corps eager to convict him, Lee plead guilty to only one count and was released from custody. The evidence against him was so shoddy, and the government handled the case so poorly, that the judge who released him ended up apologizing to Lee for the entire episode.
As a result of the nine months he spent in prison and the damage done to his career, Lee filed a civil lawsuit, accusing federal officials of illegally leaking confidential information to journalists. In August 2004, four reporters — James Risen of the New York Times, Bob Drogin of the Los Angeles Times, former CNN staffer Pierre Thomas and H. Josef Hebert of the Associated Press — were held in contempt by a federal judge for refusing to disclose the confidential government sources who fed them tips on Lee.
As Jurkowitz notes, “It wasn’t exactly the media’s finest hour either, as critics complained that coverage created a rush to judgment about Lee’s guilt. In September 2000, the New York Times published a rare half-page note to readers admitting that its reporting … ‘did not pay enough attention to the possibility that there had been a major intelligence loss in which the Los Alamos scientist was a minor player, or completely uninvolved.'”
Lee contends that the information government officials leaked to reporters violated the Privacy Act, which prohibits agencies from intentionally disclosing private records. While none of the reporters face threats of jail time as of this writing, they are being fined $500 a day until they agree to testify.
In another instance of reporters coming under the scrutiny of the court system, yesterday the Washington Post‘s David Ignatius wrote about a case that he believes poses (in an echo of Jurkowitz’s article) “a potentially far more dangerous threat to the press [than the Judith Miller jailing].”
The case revolves around two former officials of a pro-Israeli lobbying group, AIPAC, who allegedly passed to Israel and other U.S. contacts classified information that they received from former Defense Department analyst Lawrence Franklin. The pair, now under indictment for “overt acts” in “an alleged conspiracy to commit espionage,” are accused of 57 of these “overt acts” to further this alleged conspiracy — five of which allegedly involve contacts with journalists.
According to Ignatius’s piece, one of the unnamed reporters whose contact with the AIPAC employees is Glenn Kessler, a Washington Post diplomatic correspondent. “According to a June 3 Post article, the two AIPAC lobbyists jointly called Kessler in July 2004 and relayed information they had received that day from Franklin about possible Iranian attacks against Israelis who were operating undercover in Iraq. Kessler never published an article about the tip.” (It should be noted that no action has been taken against Kessler or any of the other reporters contacted by the two members of AIPAC.)
Note that both Jurkowitz and Ignatius use the Miller benchmark in order to declare that the situations they are discussing may hold even greater peril for reporters. That’s going out on a limb, but it’s also, in a way, safe — safe because both the cases involving Wen Ho Lee and the Israeli lobbyists are unlikely to be resolved any time soon. While we extend kudos to Jurkowitz and Ignatius for keeping their eyes on the ball, let’s remember that we won’t know if either, or both, of them is crying wolf for quite some time.
–Paul McLeary
Paul McLeary is a former CJR staff writer. Since 2008, he has covered the Pentagon for Foreign Policy, Defense News, Breaking Defense, and other outlets. He is currently a defense reporter for Politico.