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Sunday, July 10, 2005
Gov. May Figure In Lee Lawsuit; Richardson Named As Likely Source of Leak
By Adam Rankin
Journal Staff Writer
Gov. Bill Richardson appears to figure prominently in what one First Amendment expert describes as a "rather monumental clash between the press and government."
The forum is the lawsuit filed against the federal government by former Los Alamos scientist Wen Ho Lee, who claims government officials leaked classified and personal information about him.
Richardson, who was Secretary of Energy, and several others were again identified in a recent federal appeals court ruling as likely sources of leaks in 1999 that identified Lee as a suspect in an FBI investigation into espionage and the loss of nuclear secrets to China.
The governor, who many believe will run for the presidency in 2008, has denied in sworn testimony that he was the source or that he made improper disclosures.
Now, reporters from The New York Times, The Associated Press and the Los Angeles Times, along with a former CNN correspondent now with ABC, face the prospect of going to jail to protect who gave them the information.
The U.S. Court of Appeals for the District of Columbia Circuit recently upheld a lower-court ruling that the journalists were in contempt of court for not revealing government sources of leaks about Lee.
The news media defendants say they are protecting confidential sources.
"It is vitally important for the First Amendment," Paul McMasters said of the Lee case. McMasters is the First Amendment ombudsman for the First Amendment Center in Virginia.
"The public is the real loser in this rather monumental clash between the press and government in that more and more of the public is going to wind up with only the official version of the news," he said. "If reporters can't go to confidential sources or act on tips from confidential sources, then they can't get the whole story."
Asked about the issue last week, Richardson spokesman Billy Sparks reiterated that the governor does not comment on pending litigation.
"He does believe the court decision will have a chilling effect on the First Amendment and a reporter's right to protect confidential sources, a fundamental tenet of our democracy," Sparks said.
The issue of protecting journalists' confidential sources made headlines Wednesday when New York Times reporter Judith Miller was sent to jail for refusing to name her source to a federal grand jury investigating who in the Bush administration identified Valerie Plame as a CIA agent.
A significant difference between the Lee and Plame cases is that the government source who leaked Plame's name violated a criminal law, the Intelligence Identities Protection Act punishable by up to 10 years in prison. Lee's case is a civil action, under which the government may be liable for monetary damages.
However, the Privacy Act under which Lee sued does allow for criminal penalties for willful violations of its terms.
Brian Sun, Lee's attorney, said the journalists in Lee's lawsuit "still have a few more appeals they can exhaust" before they must either reveal their sources or face possible jail time and court-imposed fines.
Viewed together, the Lee and Miller cases are seen as major legal setbacks for journalists seeking to keep sources confidential in the interest of protecting access to whistleblowers and non-official government information.
Already, McMasters said, use of anonymous sources has declined and previously reliable sources are shying away for fear of someday being publicly exposed.
"Washington bureau chiefs already are saying they are having trouble getting some people to divulge information that used to be a slam dunk," he said.
McMasters said that unless the journalists cooperate with investigators, "the leaker is usually very safe because in the end it becomes a matter of he-said, she-said."
But in Lee's case, McMasters said, it's quite possible that some journalists will be faced with Judith Miller's decision of whether to give up their confidential source or go to jail, although he believes there are other ways to get the information.
A political weakness
Richardson's involvement in the Lee saga remains on at least some political radars.
The Hill, a weekly Washington insider's newspaper that recently published a story on Richardson's push to increase the political significance of Western states, laid out some of the governor's potential political weaknesses.
"Richardson may face negative publicity," the article noted, "about congressional testimony by (former Department of Energy security chief) Notra Trulock ... that Richardson leaked physicist Wen Ho Lee's name to the press as the government's prime suspect in an espionage probe."
Whether the case could have any impact on Richardson's political ambitions is up for debate.
"It can be something that people can try and use against him, but it will be hard to make it stick unless there is specific evidence that he is the person," said Lonna Atkeson, a professor of political science at the University of New Mexico. "You never know what kind of mileage someone (a political opponent) might be able to get out of it."
At the same time, she said the terror attacks on Sept. 11, 2001, changed everything, and that could play in favor of Richardson and his history with Lee.
"It might be harder in a post 9/11 world to say that you were hurting someone's privacy because of national security," she said.
"What is really good for him is that it is coming out in 2005 and you really don't start running for president until 2007, and by 2008 this is old news whatever mileage people get out of it, it will be hard to get again," Atkeson said.
One of Richardson's political adversaries says the Lee case could have a downside for the governor.
"If the reason (for the disclosures) turns out to be self-serving, then that would not be something that Richardson needs at this point in his political career," said state Republican party chairman Allan Weh. "It is just another indicator of his character ... ultimately it doesn't do him any good."
Lee's privacy lawsuit
Shortly after being indicted and arrested on 59 felony counts of mishandling classified information in 1999, Lee filed a lawsuit against the FBI, DOE and the Department of Justice for violating privacy laws.
The lawsuit, which was put on hold until Lee was exonerated of all but one of the felony counts in 2000, requires Lee to prove that government officials were responsible for leaking his personal information.
After questioning more than 20 government officials, including Richardson, Lee's attorneys were unable to identify the source of the leaks, so they began seeking to force journalists to divulge the information.
"This is the only way for us to get the information as to who the leakers are," said Sun, Lee's attorney. "It goes to the heart of our case."
The case against Lee, who was fired from LANL, eventually fell apart and he was freed after pleading guilty to a single charge. A federal judge issued an extraordinary apology to Lee for his treatment, which included being held for nine months in solitary confinement.
According to the recent Lee ruling, New York Times reporter James Risen refused to testify whether Richardson disclosed Lee's identity or information about his interrogation or prosecution. Risen also refused to confirm whether Trulock was correct in his testimony to Congress that Richardson had leaked Lee's name to Risen.
Among the others named in the appeals court ruling as possible sources of the leaks are Trulock and Edward Curran, DOE's head of counterintelligence.
Lee was first publicly identified as a suspect of alleged Chinese espionage in a March 8, 1999, Associated Press news story, which cited an anonymous government source.
Two days later, Richardson told the Journal that "there are very strong suspicions of (Lee's) participation" and that Lee had failed a second polygraph test in February 1999, administered on his insistence.
Richardson later said he did not recall conducting the phone interview with the Journal and has said that he doesn't recall other interviews with the New York Times.
Richardson did appear on a March 1999 episode of CNN's "Crossfire" in which he made similar statements, upsetting then-FBI director Louis Freeh, who said he was concerned Richardson's disclosures could have violated privacy laws.
Freeh, who said in a deposition for Lee's lawsuit that both the FBI and DOE were likely sources of the leaks, also said he was so upset about the leaks that "I would have loved to put the handcuffs on the person responsible for these leaks personally."
In his 2000 testimony to Congress, after Lee was exonerated of all but one charge, Freeh said that the press leaks "effectively eliminated any possibility of the normal, structured counterintelligence interview" when FBI agents sought information from Lee in March 1999.
Instead, he said, "the interview was rushed, an inappropriate level of aggressiveness was applied, and the interview was unsuccessful.
Richardson's 21/2 year term as DOE chief under President Bill Clinton beginning in August 1998 saw a series of national security controversies, starting with the disclosure of an FBI investigation into Lee and the temporary loss of two computer disks of classified information at LANL.
They were later found behind an office copier.
"His tenure at the Energy Department, in terms of national security, was a disaster," said Tom Fitton, president of the conservative Judicial Watch, a nonprofit group that provided legal representation to Trulock.
Fitton asserted that Trulock was telling the truth when under oath he told a congressional committee that Richardson was a leaker. (In his own deposition, Richardson said Trulock had admitted to some leaks.)
Lee was first investigated by the FBI for possible improper contacts with Chinese scientists in 1983-1984 and again in 1994. By 1996, the FBI resumed its investigation of Lee on the suspicion that he had improperly downloaded to unprotected computers and disks critical information on the nation's nuclear weapons.
Well before Richardson's time at DOE, Lee had been identified by both the DOE and FBI as a potential source for the loss of nuclear secrets to China.
With the release of the congressional Cox Committee report in late 1998 on the loss of those secrets detailing how China had managed to steal seven of the nation's most advanced nuclear weapons designs from DOE Congress and the news media turned to newly appointed DOE Secretary Richardson for answers.
To Lee's supporters, the leaks, whether from Richardson and the DOE or the FBI, were clearly politically motivated.
"They seemed to need that politically, and (the leak) ruined (Lee), it just ruined his ability to have a private life," said Phyllis Hedges, a Lee family friend from Los Alamos. She said the lives of Lee and his family "were horribly invaded by the leaks that brought on this lawsuit."
Hedges said that Lee, who was living in White Rock before his arrest, now splits time between Albuquerque and the San Francisco Bay area.
"I'm sure he's still gardening," she said.