Deal With Wen Ho Lee May Make Press-Freedom Case Moot

By Charles Lane
Washington Post Staff Writer
Tuesday, May 23, 2006

Intensive settlement negotiations between former nuclear scientist Wen Ho Lee and the U.S. government are delaying -- and may ultimately avert -- action by the Supreme Court on appeals by reporters fighting to protect their confidential sources in the case.

The Lee case is viewed by the media as one of the most significant press-freedom battles of recent years. But yesterday, for the second time in two weeks, the court declined to act on the reporters' petitions.

It now appears that the court's lack of a decision may be linked to a May 16 letter to the court from Lee's attorneys, which said that "there have been recent settlement discussions" and that "resolution of the entire case may be imminent." USA Today first reported the letter.

If Lee and the government reach an agreement, there will be no need for the reporters to testify -- and the court may drop the case as moot.

Lee, a former scientist at the Los Alamos nuclear weapons laboratory in New Mexico, was the focus of a federal espionage investigation before being cleared of all but a single charge of illegally downloading classified information. He claims that federal officials violated privacy laws by leaking damaging information about him to the press. He wants reporters to help his lawsuit by naming their sources.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that the reporters must reveal their sources. The journalists, citing a threat to press freedom, appealed to the Supreme Court.

If the Supreme Court stays out of the case, that would leave the D.C. Circuit's opinion in place as controlling precedent in federal cases.

For the media, "you could foresee a much worse outcome," said Steven Aftergood, director of the Project on Government Secrecy of the Federation of American Scientists. Since there is always the risk that the high court could affirm the appeals court's ruling, he said, "to get it off the table would count as a victory."

Also yesterday, the Supreme Court ruled that police do not need to wait for a search warrant before entering a private home when they have reason to believe that someone inside is in physical danger.

By a vote of 9 to 0, the court overturned a Utah Supreme Court ruling which said that four police officers acted unconstitutionally when they went in to a Brigham City house to break up a pre-dawn scuffle between four adults and a teen.

Chief Justice John G. Roberts Jr. wrote that "the officers had an objectively reasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning."

"Nothing in the Fourth Amendment required them to wait until another blow rendered someone 'unconscious,' or 'semi-conscious,' or worse before entering," Roberts wrote.

Justice John Paul Stevens wrote a brief concurring opinion, noting that the Utah ruling affected only that state, making it an "odd flyspeck of a case" that he had voted not to review in the first place.

But Roberts wrote that the court's ruling was necessary to clear up differences among state courts and federal appeals courts concerning the rules for warrantless entry by police in emergency situations.

The case is Brigham City v. Stuart , No. 05-502.

Separately, the court declined to hear a Tennessee death row inmate's case against that state's lethal-injection procedures. The appeal by Abu-Ali Abdur Rahman claimed the three-chemical protocol that Tennessee and other death-penalty jurisdictions use violates the constitutional ban on "cruel and unusual punishment."

Though lower courts had upheld the protocol, Abdur Rahman presented expert testimony that the second drug, a paralyzing agent called Pavulon, can mask the excruciating pain that occurs if poorly trained technicians misapply anesthetic.

The court made no comment. But the decision came at a time when the justices are already considering a case in which a Florida death row inmate is asking them to relax the procedures under which prisoners can challenge methods of execution.

The rejection of Abdur Rahman's appeal suggests that, whatever the court may decide about that issue, it is not ready to ban lethal injection itself.

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