Remind me: Who is Wen Ho Lee again? Oh, yeah; he's "an atomic scientist once suspected of espionage." That was the New York Times' seven-word summary in its story last week about the settlement of Lee's privacy suit against the government. This settlement comes seven years after Lee—an American citizen—was arrested, held in solitary confinement for nine months, and subjected to an organized campaign of leaks using private information from his personnel file and painting him as a spy for China and a traitor to his country on a par with Benedict Arnold.
The government never produced any good evidence that Lee was a Communist spy and apparently no longer believes it. To get out of solitary and back to his family, Lee copped a plea to a trivial offense. But no matter how long Wen Ho Lee lives, the headline on his obituary will be "atomic scientist once suspected of espionage." And on the "where there's smoke" principle, people have been left with a vague sense that—who knows?—maybe he was a spy after all. Knowing nothing but what's been published about the case, I plead guilty to a baseless but lingering suspicion myself.
When a string of government officials denied under oath that they leaked Lee's private information to the media, Lee's lawyers subpoenaed several reporters and demanded to know their sources. To avoid an unfriendly Supreme Court ruling on this question, five major news organizations (including the Washington Post Company, which owns Slate) kicked in roughly half of the $1.645 million the government paid Lee to drop the suit. But they did so with ill grace, saying that the Lee case was "a matter of great public interest" and "the public could not have been informed about the issues without the information we were able to obtain only from confidential sources."
The Lee case differs from other recent confidential-source melodramas, which involve criminal prosecutions by the government. This one is about a civil lawsuit against a third party (the government) by a private citizen. In a nation where anyone can sue anyone, and usually does, the prospect of having to reveal sources or pay money not to do so whenever some lawyer feels like filing a complaint—a complaint against someone else, no less!—is not attractive.
The media want a federal shield law, like the ones in most states, giving reporters immunity from having to reveal their sources in various (or all) situations. A shield law is a good idea—but only if it clarifies the situations where reporters do have an obligation to society that outweighs their obligations to sources. In hindsight—which is where these source-athons take place—it is noble for a reporter to go to jail, or at least have the courtesy to run up a few million dollars in legal bills for his or her employer, rather than break a promise to a source. That makes it hard, when these controversies arise, to separate the issue of keeping a promise from the issue of making that promise in the first place. A shield law is the perfect place to sort out when society should honor a reporter's promise of confidentiality to a source and when it shouldn't. It would represent a badly needed deal between journalists and society: Society would recognize a "journalist's privilege" somewhat like that of ministers, psychiatrists, lawyers, and so on. Journalists would acknowledge that this privilege is not absolute. And known rules would put everybody on notice that promises of confidentiality made outside the rules won't get much sympathy.
We can have a lively debate about where to draw the line. In the other big confidential-sources case of the moment, about White House leaks of the identity and activities of a CIA agent, Valerie Plame, the issue boils down to protecting journalists' sources versus protecting the sources of government intelligence agencies. Only a journalist or a lawyer for a journalist could think that the journalist's need for confidential sources should always trump.
There is a similar parallel in the Wen Ho Lee case. It is privacy for an innocent government scientist versus privacy for the people who tried to destroy him. Even so, confidential sources are important enough to journalism, and journalism is important enough to democracy, that you can make a good case that journalists ought to be immune from testifying in civil lawsuits, even if that thwarts justice for a genuine victim like Wen Ho Lee. But the haughty unreason of journalism's defenders tends to weaken the appetite for this task.
To say with a straight face that "only from confidential sources" could the public have been "informed about the issues" in this "matter of great public interest"—about the Wen Ho Lee case! The matter of great public interest was imaginary. It was part of an organized effort to misinform the public. And the culture and rules of confidential sources are what made this campaign of misinformation possible. The real story was a government plot to destroy a man's reputation and violate his privacy. The culture of leaks was both central to that story and the reason everybody missed it.
Likewise in the Plame case: The real story was about the leaks—a Bush White House stratagem to punish a troublemaker, Joseph Wilson, via his wife (Plame)—and promises of confidentiality made that story harder, not easier, to get. Of all the promises journalists make every day to protect some source or other, we may hope that most do serve the truth and the public interest. But among the confidential-source controversies that have reached Page One lately, it's zero for two.
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