Bill Gertz, national security reporter for The Washington Times, will appear in federal court Thursday in California to answer questions about the need to protect confidential sources in news stories.
In May, U.S. District Court Judge Cormac Carney initially ordered Mr. Gertz to appear in his Santa Ana, Calif., courtroom to reveal the identity of unnamed sources he included in a story about a Chinese spy ring in California.
The story, "New charges expected in defense data theft ring," appeared in The Times on May 16, 2006.
Mr. Gertz quoted unnamed government officials as saying that senior Justice Department officials approved an indictment against Chi Mak, an engineer who worked for Power Paragon, an American defense contractor, charging him with conspiracy and "unlawful export of defense articles." Four of his relatives would also be charged, the story said.
Defense lawyers in the case objected to Mr. Gertz's account, asserting in their motion that the government violated the Federal Rule of Criminal Procedure 6(e), which bars federal officials from giving information about grand jury proceedings to outsiders.
Judge Carney ordered a wide-ranging criminal investigation to determine who leaked information to the journalist.
Mr. Gertz's attorneys, Washington-based lawyers Allen Farber and Charles Leeper, filed a motion June 5 to quash the subpoena.
"Disclosure of a mere expectation that prosecutors will add charges does not necessarily implicate the grand jury process. The discussion of information about a government investigation, even if that investigation leads to grand jury proceedings, does not violate Rule 6(e)," the motion stated.
Judge Carney said in a response Monday, "The court gathers from Mr. Gertz's brief in support of his motion to quash that he may be unwilling to disclose the identity of the source(s)."
"Regardless of whether Mr. Gertz discloses his sources, the court expects Mr. Gertz to 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."
Mak was convicted last May of being an unregistered foreign agent who conspired to export sensitive details about American military technology to the People's Republic of China. Four relatives, including his wife, Rebecca Chiu, have pleaded guilty to similar charges.
Judge Carney on March 24 sentenced Mak to 24 years in prison.
The espionage case and Mr. Gertz's reporting have been followed by the New York Sun, The Washington Post, the Los Angeles Times and other newspapers, along with the Reporter's Committee for the Freedom of the Press, a Virginia advocacy group.
"We remain hopeful the court will closely examine the merits of Bill's motion to quash. That motion clearly demonstrates that forcing Bill to testify would be an enormous infringement of his First Amendment rights and would have a chilling effect on future government officials' willingness to come forward and divulge the sort of national security concerns that Bill has made a career of exposing - always to the benefit of the American people," said John Solomon, executive editor of The Washington Times.
"Secondly, the motion raises compelling questions about whether the information Bill published amounts to a prohibited grand jury leak. The motion recounts how various courts of appeal have concluded that news reports predicting future action by a grand jury do not constitute 6(e) violations.
"Similarly, the Justice Department itself has publicly taken that same position in recent cases. We believe the motion moots any need for Bill to testify.
"Furthermore, we hope all parties heed the will of the people as expressed by the current House of Representatives, which has overwhelming passed a reporters' shield law that would prohibit the government and courts from violating a reporters' confidentiality agreement with sources when there is no imminent danger," Mr. Solomon said.
Currently, 49 states offer journalists some form of protection should they be ordered to reveal their sources.
There is no federal "shield law," but the Free Flow of Information Act of 2007 to protect the press has cleared in the House and Senate, though it has yet to be signed into law by President Bush.