The recently settled Wen Ho Lee case is being held up by media apologists as a reason we must urgently pass a federal media shield law. That would be a critical mistake. The case is a big embarrassment for news organizations which reported damaging allegations about Lee, a former scientist at Los Alamos national laboratory who avoided being indicted as a Chinese Communist agent and pleaded guilty to mishandling classified information. The settlement involved large payments to Lee so media organizations could avoid disclosing their government sources in the case. Now the media want a special federal law, known as a media shield, to protect their sources so they won’t have to pay off more media victims in the future. In effect, the media want to be rewarded for their bad behavior.
As reported by the Washington Post, the U.S. government agreed to pay $895,000 to Lee and five media organizations agreed to pay him $795,000. That was to settle a lawsuit that Lee had filed six-and-a-half years ago against the Departments of Energy and Justice. The money from the U.S. was to cover Lee’s lawyers and the taxes on the money he received from the news organizations, so as not to be construed as damages to Lee. The news organizations were AP, the New York Times, the Los Angeles Times, the Washington Post and ABC.
Lee’s lawsuit charged that federal officials had smeared his name and reputation by leaking information to the media that he was being investigated as a spy for Communist China. However, the government case against Lee was badly mishandled and it could not prove any of those charges. That is why Lee was only charged with mishandling classified information. That, however, was a felony.
Lee and his lawyers wanted to find out who in the government had leaked derogatory information to the media about him. Federal judges had held five reporters in contempt for their refusal to name their sources for their stories about the government’s investigation of Lee. With a media shield law in place, those reporters could have protected their sources who damaged Lee and could have avoided paying him off.
The story began in 1995 when Notra Trulock, then director of intelligence at the Department of Energy, discovered a document that indicated that the Chinese had come in possession of information about the so-called W-88, our most highly classified nuclear weapon. It turned out, according to the findings of a select committee in 1998, chaired by Rep. Christopher Cox (R-Calif.), that China “has stolen classified design information on the United States’ most advanced thermonuclear weapons. These thefts of nuclear secrets from our national weapons laboratories enabled the People’s Republic of China (PRC) to design, develop, and successfully test modern strategic nuclear weapons sooner than would otherwise have been possible. The stolen U.S. nuclear secrets give the PRC design information on thermonuclear weapons on a par with our own.” This finding was unanimous by a committee of five Republicans and four Democrats. Their other main finding was that the Clinton administration had been far too lax on security matters regarding such highly classified secrets.
Trulock, who later worked at Accuracy in Media as associate editor, tried for four years to get the attention of various government agencies and officials to investigate Chinese espionage. Lee, one of the initial suspects, was indicted on 59 felony counts, and held in solitary confinement for nine months. He was later released after pleading guilty to the one felony count.
Following the recent settlement, Michael Kinsley of Slate.com wrote a column using the Lee case as a stepping-off point to argue for a federal shield law, which he calls “a good idea?but only if it clarifies the situations where reporters do have an obligation to society that outweighs their obligations to sources.” That seems like a reasonable position, but he makes a significant factual error. He said that Lee “copped a plea to a trivial offense.” In fact, the one felony that Lee pleaded guilty to was for downloading the equivalent of 400,000 pages of classified information on tapes. He was also known to have made trips to China around that time. And as part of his plea, he agreed to cooperate with the investigation and lead them to the tapes. But he never did.
The case was badly handled by the government, but the media performed terribly as well. Lee, however, took advantage of the misconduct by the government and the press, coming out of this debacle a rich man.
The real victim in the case is Trulock, recognized as a national hero at the time for trying to interest the government and the press in a Chinese espionage scandal involving our national labs that we still don’t have all the facts about. At one point, Trulock became the target when his apartment was ransacked by the FBI and agents stole his computer. We later learned that the FBI had been effectively penetrated by Chinese intelligence.
On the matter of paying off victims of the media, CNN refused to participate in the settlement with Lee. CNN said it had “a philosophical disagreement” with the idea of paying off a subject of a story to avoid a subpoena.
But the Lee case is not the only one. The Post reported on comments by Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, which offers legal advice to reporters and media organizations. “Such a settlement, she said, potentially exposes the news media in other Privacy Act lawsuits, such as one brought by Steven J. Hatfill, a federal employee who sued the government after he was identified in news media accounts as ‘a person of interest’ in the 2001 anthrax poisonings. ‘I’m very troubled by the results,’ Dalglish said, ‘but I’m not sure I could have negotiated anything better.'”
Hatfill’s case is ongoing, and we have written about it extensively. He has sued the government and the media in an effort to determine who in the government smeared his good name and falsely linked him to the anthrax murders. We hope he wins his case.
Understanding the implications of paying off media victims to avoid disclosing sources, the Los Angeles Times has seized on the Lee case to call for a federal media shield law. The paper argues that the slippery slope of paying off subjects of other stories based on confidential sources can be avoided by passage of a federal shield law. Such an approach would give the media legal protection when its reporting is under fire and sources could be exposed in legal proceedings.
AIM editor Cliff Kincaid has effectively identified the problems faced when trying to codify such rules and definitions. Would news organizations that are fronts for terrorist organizations be included? How about bloggers? What about cases, like that of Hatfill, when the media’s “sources” are government officials who smear and destroy the lives of innocent people? Shouldn’t they be exposed and held accountable?
Despite all of the attention to the Lee matter, such cases are rare. And in the case of Lee, as well as Hatfill, there was clear evidence of media misconduct that should not have been excused or covered up.
A media shield law would reward irresponsible media behavior and prevent victims of the media from having their day in court.