Lawyers for Washington Post journalist Walter Pincus urged a federal district judge yesterday to recognize new legal protections for reporters with confidential sources and refuse a request to hold him in contempt in a case involving former government scientist Wen Ho Lee.
The reporter's attorneys asked U.S. District Judge Rosemary M. Collyer to recognize a common-law privilege similar to one that shields confidence between priests and penitents, and between therapists and patients, to reporters and their sources. A reporter's privilege is recognized in the courts of 49 states and the District.
Most federal courts recognize a privilege under the First Amendment, but the U.S. Court of Appeals for the D.C. Circuit rejected its application for four reporters from other news organizations and affirmed contempt orders against them in the Lee case. Pincus argued that there should be a broader, common-law privilege that allows him to keep his sources secret.
The effort by the newspaper comes at a time when journalists are facing unprecedented demands and threats in federal court to break their promises and name government officials who secretly gave them information.
New York Times reporter Judith Miller is spending her fifth week in jail for refusing to discuss confidential government sources with a special criminal prosecutor in his probe of a government leak of CIA operative Valerie Plame's identity. Another group of reporters faces the threat of subpoenas or contempt citations in two civil lawsuits that center on government leaks.
Pincus is seeking to avoid being held in contempt for refusing to divulge the names of confidential government sources with whom he spoke when reporting in 1999 and 2000 on a criminal investigation into whether Lee was a spy. Almost all charges against Lee were later dropped; he has sued the federal government for violating his privacy and has alleged that high-ranking government officials in the FBI and the Energy Department leaked to reporters information about the investigation.
Lee argues that his civil suit hinges on learning the names of those sources by questioning Pincus and the other reporters.
Kevin Baine, a lawyer for Pincus, urged Collyer to extend the common-law privilege by following a recent opinion by U.S. Court of Appeals Judge David S. Tatel in the Plame case. Tatel concluded that a reporter should not have to reveal a source if the value of the leaked information to the public outweighs any harm caused by the leak. In the Plame case, Tatel wrote that Miller must identity her sources because there was a greater public interest in investigating the outing of a covert CIA officer.
Without some threshold test, Baine said, reporters could nearly always be ordered to break their promise.
Lee's lawyer, Betsy Miller, told the judge that requests for federal courts to create a privilege are extremely rare and should be discouraged in all but the most extraordinary cases, especially as Congress considers a federal shield law.
"This is not the case to create a new common-law privilege," Miller said.
Collyer said she felt obliged to consider the request seriously. "I'm inclined to think I can't decline the invitation to address whether there's a common-law privilege," she said.
A high-profile precedent for the Post's request is the 1996 case Jaffe v. Redmond, in which the Supreme Court upheld a lower court's decision to extend the privilege to a psychotherapist who had confidential conversations with a police officer then suspected of killing an innocent bystander. The court found that the need for confidence in therapy outweighed the public interest in the conversation.
In the case of Pincus's stories, Baine argued yesterday that they were of critical value to the public because they focused on whether the government was aggressively investigating lax security at the Los Alamos, N.M., laboratory where Lee worked. At the same time, Baine said, the public would gain little by learning which public officials prematurely disclosed that Lee was the focus of the criminal investigation in the weeks before he was publicly charged with misappropriating classified government secrets.
"The harm from those leaks was nothing compared" with Lee being publicly charged with 59 counts related to mishandling documents and then being detained in solitary confinement for nine months, he said. Lee eventually pleaded guilty to one count of mishandling classified information.
Post Executive Editor Leonard Downie Jr. said Tatel's opinion about balancing the harm of divulging the source's identity against the public's interest in the information seemed a "sensible argument" and "an important one for us to make."
"The harm of divulging the identity of confidential sources is that people whose safety and whose jobs are on the line would have to think twice or more than that before they took that chance" of talking to reporters, he said. "We also want reporting to be on the record. But in the highest-stakes reporting, people are risking their jobs to talk to us. They need that protection. And the American public needs that protection."