A federal judge in Santa Ana declined Thursday to order a reporter to reveal the names of federal officials who leaked information to him for a 2006 story about a grand jury investigation into a scheme to send sensitive military technology to China, the Los Angeles Times has reported.
The details:
Washington Times reporter Bill Gertz was subpoenaed to testify in federal court by US District Judge Cormac Carney. But during the hearing Carney announced that he had been notified by a Department of Justice official that the agency planned to subpoena Gertz to testify before a federal grand jury about the leaks.
Gertz took the stand and cited his 5th Amendment right not to testify in light of the threatened subpoena from the Justice Department. Carney said government prosecutors wanted to question Gertz about the leaking of classified information.
After the hearing, Gertz's attorney, Charles Leeper, said his client had not received a subpoena and did not know anything about the government's plan to question him.
Gertz, who reports on national security issues, had filed a brief before Thursday's hearing saying that he would be unwilling to disclose his sources. However, in a written ruling, Carney said he should still be prepared to testify "regarding the newsworthiness of this case and, more particularly, the reasons why maintaining the confidentiality of his sources is critical to his ability to engage in investigative reporting."
Rick Pullen, a 1st Amendment expert who is dean of the College of Communications at Cal State Fullerton, said he was perplexed by Carney's reasons for asking Gertz to appear in court.
"Asking why it's important to keep sources confidential is kind of absurd. It's not rocket science why a reporter is reluctant to reveal information about his reporting," Pullen said. "It's also strange that he was going to ask him why he thought this information was important and worth reporting."
On Thursday, Carney appeared to answer his own questions. In his ruling he said freedom of the press is an important fundamental right and acknowledged a reporter's need to protect sources. He said Gertz performed a valuable public service through his reporting of the Chi Mak case.
Nevertheless, the judge said that he had a duty to subpoena Gertz to testify, even if he were to decline to press him to reveal his sources, because Justice Department officials concluded that someone illegally had leaked secret grand jury information to Gertz. An investigation failed to find the source of the leaks, prompting Carney to launch his probe. "Someone was talking to him. It was a serious matter," he said.
However, the expected 1st Amendment confrontation between judge and reporter became moot when federal prosecutors notified Carney that they planned to subpoena Gertz. Afterward, Gertz read a written statement that said Thursday's hearing "shows that 1st Amendment press freedoms are under assault."
"Confidential sources are the lifeblood of a free press, independent of government control," he said. "The identity of these confidential news sources must be protected if our press freedoms, fundamental to the effective functioning of our democratic system, are to endure."
The hearing stemmed from a May 2006 article in which Gertz attributed information to "senior Justice Department officials" who told him about new charges that would be filed against Mak and three other defendants. On Thursday, Carney said the article was accurate. Though Gertz's reporting did not prejudice a defendant's right to a fair trial, it violated grand jury secrecy, Carney said.
Mak, a Chinese American engineer from Downey, and three family members were found guilty in a plot to send information about U.S. Navy technology to China. His wife has pleaded guilty and is awaiting sentencing. Mak, the principal defendant in the case, was sentenced to more than 24 years in prison. He worked at an Anaheim military firm.
