James Risen and the matter of Wen Ho Lee [View all]

[struggle4progress]

James Risen is back in the news, again insisting that, as a matter of privilege, he will not testify in court in a leak case involving national security issues

I say again because Risen has taken this stance before, in a matter that ultimately did not reflect well on many involved: the story of Wen Ho Lee

For the benefit of anyone who might somnambulated through the late 1990s, let us briefly recap the details

In March 1999, the NYT published a story by Jeff Gerth and Risen revealing that Wen Ho Lee, a nuclear scientist at Los Alamos, had been suspected of passing nuclear secrets to the Chinese towards the end of the Reagan era

The predictable political frenzy erupted, with accusations that the Clinton administration was soft on spies, with the result, in December, Wen Ho Lee was charged about five dozen counts of violating national security laws and spent the larger part of a year in custody. During this time, various exciting accusations were made

But by August 2000, the case had almost completely crumbled, and the defendant was offered a deal, in which he would plead guilty to one felony count of mishandling nuclear secrets, be sentenced to 278 days, but given credit for his 278 days in pretrial detention

The judge's long remarks on accepting the bargain were interesting. He began:

Dr. Lee, you have pled guilty to a serious crime. It's a felony offense. For that, you deserved to be punished. In my opinion, you have been punished harshly, both by the severe conditions of pretrial confinement and by the fact that you have lost valuable rights as a citizen

And he concluded:

Although, as I indicated, I have no authority to speak on behalf of the Executive Branch, the President, the Vice-president, the Attorney General, or the Secretary of the Department of Energy, as a member of the Third Branch of the United States Government, the Judiciary, the United States Courts, I sincerely apologize to you, Dr. Lee, for the unfair manner you were held in custody by the Executive Branch

Lee waived any right to appeal, in accepting this bargain, but subsequently sued on the government on the grounds that whoever leaked the unproved allegations, about his role as a spy in 1988, had violated his privacy rights. Risen was provided with a subpoena to testify in that case, in order to shed light who had improperly leaked the old allegations about Wen Ho Lee to the press. Risen did not wish to testify, and repeatedly challenged the subpoena. The subpoena was repeatedly upheld on appeal, though in the end the government settled, paying $895K to Lee. And oddly, five media outlets, including Risen's NYT -- none of them defendants in the suit -- kicked in another $700K to sweeten the settlement so the case would go away

It seems, of course, highly unusual for a judge to apologize to a defendant who has just pleaded guilty to felony mishandling of nuclear secrets; and it seems even more unusual for five large media corporations, not named as defendants in a civil suit, to throw $700K into the settlement pot to encourage the plaintiff to plead guilty and drop the suit

So something was going on here

The natural guess is that Risen and other reporters had involved themselves in some highly irresponsible reporting of old unprovable allegations against Wen Ho Lee, destroying his reputation and career, and unleashing some unconscionable witch-hunt against him, with the result that the US Attorney, after long investigation, finally found a technical violation of nuclear lab rules that he could use as a lever to encourage Wen Ho Lee to plead guilty, allowing everyone to save face, and the media corporations, being neck-deep in the cluster-fuck, themselves thought it best to encourage the plea-bargain further

The courts seem to me to have ruled properly here against Risen's attempt to evade testifying on grounds on reporter's privilege; and in this case he would have been properly jailed for contempt, had no plea bargain resulted and had he then been called to the stand



http://www.salon.com/2000/09/21/nyt_6/
http://web.mit.edu/jmorzins/www/lee_parker_opinion.html
http://www.washingtonpost.com/wp-dyn/content/article/2006/06/02/AR2006060201060.html