Protecting sources who need exposing

June 12, 2006

The disgraceful affair of Wen Ho Lee, the onetime Los Alamos scientist defamed but never tried for supposedly stealing nuclear secrets for China, is over.

The U.S. government and five news organizations will pay Lee $1.64 million for sliming him by publishing private information from his personnel files to support espionage allegations that nobody could ever prove and which apparently were unfounded. Lee spent nine months in solitary confinement and had his career destroyed, thanks largely to leaks from prosecutors that were breathlessly published in 1999 by some of the nation’s best news organizations.

Eventually, Lee pleaded guilty to a single charge of wrongly downloading classified documents; the 58 other charges were dropped, and the federal judge in the case apologized to Lee in open court for his treatment. He sued the government over the leaks, and tried to find out from reporters who it was that lavished them with the damaging allegations. They wouldn’t say. Now, thanks to the payments, they won’t have to.

What a mess. Of all the current cases involving confidential informants, the Lee affair raises, in my view, the most troubling issues. The media coverage his case received was enough to doom his career and ruin his reputation, long before the merits of the case could be fairly weighed.

Lee couldn’t sue for his good name, but he could sue over the violation of his privacy rights constituted by the leaks against him, apparently fueled by anti-Chinese animus and promoted by political operatives who believed the Clinton administration was impeding the case against him. (For excellent background on the affair, see Eric Boehlert’s 2000 Salon article at http://archive.salon.com/news/feature/2000/09/21/nyt/print.html.)

Now, media organizations — The New York Times, Los Angeles Times, Washington Post, Associated Press and ABC News — contributed $750,000 to the settlement. They say they settled to avert further litigation that, courts have made clear, would likely have forced them to identify the people who dished them dirt against Lee.

They acted to prevent further erosion of their ability to protect confidential sources.

It’s a familiar line, and the commentary about the affair has focused exclusively on whether the media will now be vulnerable to payoff demands from other plaintiffs who subpoena reporters to get at their sources. But circling the wagons around the principle of source protection gives the media an easy out. It enables them to avoid considering whether there might be anybody else in this drama who deserves protecting.

Not just Dr. Lee. How about the rest of us, whose lives and livelihoods are in the hands of powerful, so-called public servants who may be headstrong, vindictive, mendacious and wicked, and who are supposed to be held in check — not shielded — by a vigilant and dedicated press?

When the media decide that predatory bureaucrats with a good-enough story to tell are entitled to constitutionally sanctioned protection, regardless of their truthfulness and recklessness, where does that leave us, the citizenry? And what happens to that core principle of accountability — of the government and the media?

The practice of source confidentiality needs an overhaul. The continuing Bob Novak affair, in which reporters have risked prison to safeguard the right of senior government officials to endanger a blameless CIA agent whose husband embarrassed the administration, should have been enough. Instead, the media’s toothless response has been to treat this as a PR problem, to start disclosing the “reasons” for withholding an informant’s name, which generally boil down to, “The source insists.”

The real question is, why are you telling these guys’ stories in the first place?

Confidentiality promises are powerful and complex things. Sometimes brave and desperate people take great risks to expose important wrongdoing, and the reporters who shield them accept legal exposure. Good for them. But are we so morally obtuse that we can’t distinguish that from the much more common scenario where the powerful use the press first as pack animals and then as guard dogs?

The Wen Ho Lee affair is over, but far from settled. The intrigues that destroyed him may never be exposed, because the media organizations that are best qualified to uncover those intrigues were parties to them, hopelessly compromised. Nurturing a source may be a professional necessity, protecting the source may sometimes be a public boon. But there are other duties, such as exposing the truth, that may be even more imperative, and which don’t vanish in the glare of a self-serving agreement to keep an undeserving source secret.

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