from the FAS Project on Government Secrecy
Volume 2003, Issue No. 90
October 17, 2003


A federal court last week ordered five reporters from the New York Times, the Los Angeles Times, the Associated Press and CNN to disclose the confidential sources they used in reporting on the case of Wen Ho Lee, the former Los Alamos scientist who had been suspected of espionage. Dr. Lee charges that his privacy was violated by the reported leaks.

The new court order, issued in D.C. District Court by Judge Thomas Penfield Jackson, invokes a 1972 Supreme Court case, Branzburg v. Hayes, to show that the "reporter's privilege" which protects the confidentiality of news sources is not absolute:

"It would be frivolous to assert... that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws," the Supreme Court held in 1972.

A copy of Judge Jackson's October 9 order may be found here (thanks to Kent Dedrick of

This matter obviously resonates with another leak case, the disclosure by Robert Novak of the identity of an undercover CIA officer, currently the subject of an ongoing investigation.

"I've constantly expressed my displeasure with leaks, particularly leaks of classified information," said President Bush on October 7.

But this statement overlooks the crucial difference between classified information that is protected by law, e.g. the identities of "covert agents," and other classified information that is not so protected. It also obscures the objective fact that leaks often serve a vital function in defeating improper secrecy and informing the public.

"High-level leaking, for reasons good and bad, has long been part of U.S. political reality," writes John Woestendiek in "Secret Weapon," Baltimore Sun, October 14:


Department of Energy (DOE) reviewers located hundreds of pages of inadvertently released classified information among publicly available records at the National Archives earlier this year, according to a DOE report to Congress.

Documents containing classified nuclear weapons-related information were found in collections belonging to the Department of State, the Department of Defense, and the Executive Office of the President, according to the report, the eleventh in a continuing series. They were removed. See:

The DOE review is based on stringent and arguably obsolete classification criteria. Thus, reviewers habitually discover records that are formally "classified" merely because they identify the location of a nuclear weapon storage site decades ago, or reveal the cost of a particular weapon or component.

Meanwhile, the open-ended hunt for inadvertently disclosed classified information at the National Archives, along with various other post-9/11 restrictions, has apparently wreaked havoc with public access to historical records at the Archives.

There are numerous anecdotal accounts of large, indiscriminate withdrawals of historical records that suggest the need for enhanced oversight and investigation of restrictions on records access at the Archives.

"DOE has now classified several boxes from RG 77 (Manhattan Engineering District)," observed intelligence historian Jeffrey T. Richelson recently. "Some or all of these contain documents relating to US intelligence concerning Germany's WW II atomic energy/bomb efforts." Others report that various "documents concerning Japan's WWII BW efforts are no longer available to the public."

"I wonder if the Civil War is next," said Richelson.


In the perennial dispute over the legitimacy of polygraph testing as a tool for security screening of government employees, the late physicist Edward Teller sided with his scientific colleagues at the national laboratories in opposition to the polygraph.

"Together with many others, I believe that its negative effects ... by far outweigh the conceivable advantages [and] the rather dubious evidence that the tests may give," Teller wrote to the Secretary of Energy.

Teller's October 27, 1999 letter on polygraph was obtained by researcher/reporter Michael Ravnitzky under the Freedom of Information Act. See:


The controversial case of Thomas C. Butler, the distinguished infectious disease specialist who is the target of aggressive government prosecution because he allegedly mishandled biological agents and committed other violations, continues to perplex and alarm observers.

CBS Sixty Minutes is scheduled to broadcast a segment on the case on Sunday, October 19.

In a reportorial coup, Sixty Minutes managed to tape interviews with the principals before a gag order was imposed on the parties last month.

The court in its wisdom determined that the rights of the defendant, who faces 64 counts of everything from smuggling to tax evasion and embezzlement, might be "impaired" if he or his attorneys were allowed to talk to the press.

"There is a substantial likelihood that certain form[s] of publicity, to wit, extrajudicial statements of a prejudicial nature by parties and their representatives to members of the press, might impair the rights of the defendant, the government and the public to a fair trial by an impartial jury," wrote Texas judge Sam R. Cummings.

See a copy of Judge Cummings' gag order, filed September 12, here:

And then watch Sixty Minutes.


Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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