By Edward Gerjuoy

On June 2 of this year the news media reported that Wen Ho Lee, the former Los Alamos National Laboratory (LANL) researcher who was the subject of my Back Page article in the April 2000 APS News, had settled his lawsuit against the US government for $1.65 million, to which sum five news organizations had contributed a total of $750,000 although they were not named defendants in the case. The present article describes the basis for the lawsuit, elucidates the settlement terms and explains how the news organizations came to be involved.

In April 2000 Wen Ho Lee was being held in solitary confinement (bail having been refused), under a 59-count indictment issued December 10, 1999 accusing Lee of unlawfully mishandling classified documents “with the intent to injure the United States, and with the intent to secure an advantage to a foreign nation.” The investigation which led to his indictment had begun in 1995, shortly after the DOE had received information causing it to suspect that the mainland People’s Republic of China (PRC) government had obtained US nuclear weapons secrets.

Although the investigation had focused on Lee almost from its outset, by the time of his indictment any supposed evidence that he had revealed nuclear weapons secrets to the PRC already had begun to collapse. Indeed the above-quoted indictment language accusing Lee of mishandling classified documents carefully avoids the much more serious charge, punishable by death, that Lee actually had given any classified information to a foreign power. By September 13, 2000 the evidence had completely collapsed. On that date the government agreed to a settlement whereby, in return for Lee pleading guilty to a single count of the original 59, he immediately was freed on a sentence of “time served” and all the other counts were dismissed. Presiding Federal District Court Judge James A. Parker told Lee in open court, “I sincerely apologize to you, Dr. Lee, for the unfair manner [in which] you were held in custody by the executive branch.”

Despite the dubious evidence, the fact that a case was being built against Lee had been leaked to the news media long before he actually was indicted. For example, on March 6 and 9, 1999 The New York Times published two front page stories that disclosed many details of the government’s ongoing investigation; the March 9 story explicitly named Lee as the investigation’s “prime suspect.”

A March 10, 1999 Albuquerque Journal story said the reason for firing Lee was based on “very strong suspicions of his participation” in espionage for the PRC. Accordingly, starting on March 10, 1999, Lee’s lawyer Brian Sun wrote the Department of Justice (DOJ) and the FBI a series of letters pointing out that the continuing leaks were highly prejudicial to Lee, were a misleading characterization of whatever evidence the DOJ had against him, and directly violated established DOJ policies. These letters also pointed out that the sources of the leaks were subject to lawsuit for the damages to Lee that those leaks had caused. None of these letters were answered.

The threatened lawsuit was filed ten days after Lee was indicted. It was based on provisions of the so-called federal Privacy Act, Title 5 § 552a of the United States Code. Under the doctrine of “sovereign immunity,” which traces back to the “divine right of kings,” individuals quite generally may not sue US governmental agencies without permission. The Privacy Act confers this required permission for lawsuits alleging unauthorized disclosure of governmental agency records, and even explicitly permits the Court to “assess against the United States reasonable attorney fees and other litigation costs” when the complainant has substantially prevailed (some of the really great features of this nation’s democracy still remain).

I emphasize that this lawsuit was wholly independent of the criminal action against Lee that ended on September 13, 2000. Listed as defendants were the DOJ, FBI and DOE, plus Jane and John Doe defendant leakers 1 through 99, whose identities the lawsuit still had to ascertain. Despite intensive efforts, including more than 20 depositions of individuals who had knowledge of the investigation that led to Lee’s indictment, his lawsuit remained unable to reliably identify any of the leakers. Beginning in early August 2002, therefore, Lee issued subpoenas to five reporters who had authored obviously leak-based stories about the investigation, seeking testimony and documents concerning the sources of those leaks.

All the reporters moved to quash the subpoenas on freedom of the press grounds, essentially the same grounds Judith Miller futilely argued in October 2005 when she was jailed for refusing to reveal the sources who had leaked CIA operative Valerie Plame’s name to her. On October 9, 2003 the US District Court judge handling Lee’s lawsuit similarly rejected the reporters’ arguments and ordered them to testify about their sources, saying Lee had shown there was no other way for him to obtain evidence which could be essential to his case.

On August 18, 2004, the reporters having defied this order, the Court found the five reporters in contempt and fined each of them $500 for every day the order was not obeyed. The Court stayed enforcement of the contempt citation, however, pending appeal. On June 28, 2005 the District of Columbia Circuit Court of Appeals upheld the contempt citation for four of the five reporters. These four reporters then appealed to the Supreme Court, which, on June 5, 2006, three days after the settlement, announced its refusal to hear the case.

I can only speculate about the reasons the parties agreed to the settlement, whose terms are unusual. According to some newspaper stories the main impetus for the settlement came from the government, which probably was forewarned the Supreme Court was not going to hear the reporters’ appeal.

It is a good guess that the government feared the Supreme Court’s refusal, once announced, would lead to testimony from at least one of the reporters, thereby strengthening Lee’s case and concomitantly threatening to significantly increase the government’s financial exposure. Under the settlement terms the government paid $895,000 toward Lee’s legal expenses, but made no restitution whatsoever for Lee’s damages from the leaks. Thus Lee probably would not have agreed to the settlement, had the five news organizations not been willing to make their $750,000 contribution to defray Lee’s damages.

The news organizations, though not defendants in Lee’s lawsuit and hence under no legal obligation to pay Lee anything, presumably were willing to do so because the $750,000 was much less than the total fines their reporters’ refusals to testify already had accrued; it must have been understood that these fines would be waived if the settlement was reached. Although the settlement by no means excused the reporters’ contemptuous refusals to obey the Court’s order, the District Court judge probably was happy to be rid of Lee’s complicated time-consuming case.

Edward Gerjuoy is Professor of Physics Emeritus at the University of Pittsburgh and has been a practicing lawyer. Because of these qualifications and his long-continued association with the APS Committee on International Freedom of Scientists (CIFS), in 2000 he became actively involved in the defense against Wen Ho Lee’s 1999 criminal indictment.

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