No Lesser Evil

It’s pretty to think the news organizations implicated in Dr. Wen Ho Lee’s suit against the federal government chose the lesser evil when they anted up $150,000 each to make Lee go away. But buying off trouble can be more corrosive than dealing with it.

Lee, the atomic scientist working at Los Alamos who was accused in 1999 of being a spy for China, was fired, indicted, held in solitary confinement, and pilloried in the press. In the end he pleaded guilty only to a single count of mishandling secret files, and the judge on the case said his treatment at the hands of the federal government “embarrassed our entire nation and each of us who is a citizen of it.”

In 2000, reviewing its coverage in the aftermath, the New York Times “found some things we wish we had done differently.” In two long editorials it allowed that its coverage had been unbalanced and insufficiently skeptical, that it had on occasion “adopted the sense of alarm that was contained in official reports and was being voiced to us” by various sources, and that it “should have looked more searchingly at the conditions under which he was confined and the government’s arguments for denial of bail.” While insisting that its coverage was for the most part magnificent, the Times basically admitted to malpractice.

Lee sued the federal government on the curious grounds that its disclosures to reporters violated his privacy. Reporters for the Times, the Associated Press, the Washington Post, the Los Angeles Times, and ABC were subpoenaed and asked to turn over the names of the sources he thought had abused him, and when the reporters refused to cooperate a federal judge found them in contempt of court and threatened them with fines of $500 a day. The D.C. circuit of the U.S. Court of Appeals also ruled against the reporters, and though their attorneys petitioned the Supreme Court to hear the case, they cut a deal with Lee’s attorneys and the government’s. Lee got $895,000 from the federal government and a total of $750,000 from the five media companies, which in turn got Lee’s guarantee that he wouldn’t sue them next (though the statute of limitations pretty much ruled out that possibility anyway). The media companies got to say they’d protected their reporters from stiff fines and possible jail and their sources from exposure, and had also denied the Supreme Court an opportunity to issue some sort of draconian edict reducing the media’s right to protect sources to roughly zero.

A few days after the settlement was announced on June 2 the Supreme Court responded to the reporters’ petition, even though the case was now moot. The court let the lower-court opinion stand. In other words, it saw no problem worth correcting in the decision to hold the reporters in contempt of court.

So what’s not to like about the way the media got out from under? Consider this from the Tribune, in an editorial giving the deal two cheers–make that a cheer and a half: “The news organizations contributed to the settlement because the government wouldn’t pay enough to induce Lee to drop his suit, said Lee Levine, an attorney for two of the reporters. They paid, in essence, to protect their confidential sources.” What business is it of news organizations to help the government settle a lawsuit? It’s a dark day when the New York Times says to Washington–or even appears to say to Washington–“You’re a little short? Maybe we can make up the difference.” Those anonymous government sources led the reporters into this mess, yet here were the media companies acting like government codefendants.

The Tribune called the payments “unusual.” How about unprecedented? Now that journalism has set a precedent by throwing money at a problem to make it go away, it can expect more litigants to angle for the same sweet solution, more reporters subpoenaed even when they’re not defendants. Maybe next time the media will settle faster, knowing that in the end they’ll get no protection from the courts.

American media face an unsympathetic federal judiciary with low regard for the notion of a reporter’s privilege. This means a lot of court battles over confidential sources will be fought and lost. Journalists need to think about how to deal with those defeats. In some, journalism’s position will be hard to explain. Just as the public had trouble caring when Judith Miller went to jail to protect Scooter Libby, few tears would have been shed for the Times’s James Risen if he’d been locked up for protecting whoever went after Wen Ho Lee. In other cases, where the secret sources can be ascribed a scrap or two of nobility, it will be a little easier to appreciate the principle journalists are fighting for.

In the Lee case the media faced a nightmarish choice. Since there’s no federal shield law–and might never be–that choice will have to be made time and again. Journalists should consider that sometimes the right choice might be simply to obey the bench. Obey, and hope the public and its politicians slowly get a glimmer of what this obedience is costing them in untold stories. The Lee settlement was a low point–journalism climbing into strange beds to preserve its virtue.


The Sun-Times apologized the other day for an “egregious mistake.” The mistake–by editorial cartoonist Jack Higgins–was embarrassing all right, and I can understand editorial page editor Steve Huntley’s being willing to say whatever would put it behind him. But “egregious” was an overstatement.

Higgins’s cartoon on June 6 was his response to the reported slaughter of Iraqi civilians by U.S. marines at Haditha. Superimposed on his drawing of a line of corpses lying alongside a wall was the caption “We will…be greeted as liberators.” This was a strong but not surprising image from Higgins: the war in Iraq has troubled him a long time. But he chose the wrong photo as the model for his drawing.

Later that day a James O’Toole e-mailed me. “Here’s a conundrum,” he said. “Liberal Chicago Sun-Times cartoonist bases a scathing editorial cartoon condemning U.S. Marines on a photo which actually depicts the slaughter of 19 fishermen in Iraq by insurgents. Will liberal Reader columnist ignore bogus cartoon?”

Higgins is a perfidious liberal only to someone who isn’t paying any attention. But O’Toole had challenged me, so I clicked on the links he’d provided. One led to a Newsweek article illustrated by the AP photo Higgins had used. The caption said, “Insurgents in Haditha executed 19 Shiite fishermen and National Guardsmen in a sports stadium.” Another link led to conservative blogger Michelle Malkin, who was also making hay with the 14-month-old picture of the dead fishermen, which the London Times had misidentified before Higgins did. “Some smears aren’t so easy to take back–especially when the image is as searing and damning as the bloody image the Times wrongly attributed to our Marines,” she wrote. “Look at how . . . Higgins used that image. . . . Will Higgins somehow argue that he is not implying that the Marines were the perpetrators of the atrocities in the stadium scene?”

Malkin thanked O’Toole for giving her a heads-up on the cartoon.

The following morning, June 7, Malkin posted the apology from Huntley. He said Higgins had searched the Internet for images that would help him draw his cartoon, came across the Newsweek page with the AP picture, and overlooked the caption identifying it. Higgins and the Sun-Times “deeply regret the mistake and apolo-gize to the U.S. servicemen, especially those in the Marine Corps, and to our readers,” Huntley wrote. For good measure his note concluded, “Again, Higgins and the editors of the Sun-Times apologize for this egregious error.”

Though Malkin seemed satisfied, not everyone was. “This is getting pretty old,” Michael Y. posted on Malkin’s blog. “How many times has the media consistently made ‘egregious errors’ and then apologized for them? And I would bet that 90% of their ‘egregious errors’ have negatively impacted the reputation of the U.S. Military specifically and the USA in general.”

O’Toole and Michael Y. would stand on firmer ground if Huntley’s admission somehow proved that the slaughter by U.S. marines had never happened. It didn’t. Higgins’s point survives the way he made it. It isn’t bogus.

Here’s egregious. On May 25 the Times of northwest Indiana ran a headline across page one that said, “U.S. Sues Methodist Hospital.” It reported that the U.S. attorney had filed a lawsuit accusing Methodist and several doctors and service providers of a “massive conspiracy to fraudulently overbill Medicare.” The alleged kick-back scheme at Methodist’s hospitals in Gary and Merrillville ran to $51 million in bogus billing between 1995 and 2004. The AP picked up this explosive story and spread it across Indiana.

In fact, the suit had been filed by a single doctor who’d exploited an obscure Civil War-era legal device to sue in the name of the United States. His suit was an invitation to the U.S. attorney’s office to get involved that the U.S. attorney had declined. The Times had misunderstood the lawsuit. The feds had nothing to do with it.

Before May 25 was up the AP had its correction on the wire. The next day page one of the Times shouted, “Feds Are Not Suing Methodist.” On May 27 page one announced, “U.S. Isn’t Suing Firms or Doctors,” the story under this headline noting that the doctor who brought the suit, Richard Lichtenberg, had skipped a status hearing, and the suit might now be dismissed. Inside the paper, executive editor William Nangle told readers that the Times reporter didn’t get the complete story because hospital and federal officials had either refused to comment or failed to return phone calls. Still, “In hindsight, we should have delayed publication.”

May 31 brought the formal retraction. The Times listed everyone it said had been accused by the U.S. attorney of Medicare fraud–the hospital, two administrators, 11 doctors, and six service providers. None of it was true. The Times “deeply regrets these errors.”

Art accompanying story in printed newspaper (not available in this archive): photo/Mike Fiala/AFP/Getty Images.