08/01/06

Federal appeals court says prosecutors may see New York Times phone records


NEW YORK (AP) — Federal prosecutors investigating a leak about a terrorism funding probe can see the telephone records of two New York Times reporters, a federal appeals court ruled.

By a 2-1 vote Aug. 1, a panel of the 2nd U.S. Circuit Court of Appeals overturned a lower court's ruling that the records were off-limits unless prosecutors could show they had exhausted all other means of finding out who spoke to the newspaper.

The judges said a grand jury investigation of the disclosures wasn't likely to go anywhere without help from the reporters or access to their records.

"There is simply no substitute for the evidence they have," Judge Ralph K. Winter wrote.

The newspaper was considering an appeal, its lawyers said.

The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

Prosecutors claimed the reporters' phone calls seeking comment from the charities had tipped the organizations off about an investigation that was supposed to be secret.

U.S. Attorney Patrick Fitzgerald asked the Times for information about the source of the reports in 2002, then threatened to subpoena phone company billing records in 2004.

The newspaper filed a lawsuit seeking to block any such effort, saying prosecutors might use the records to fish for information about the Times' sources for a long list of stories.

In the minority on the 2nd Circuit panel, Judge Robert D. Sack said prosecutors had made little effort to assure the court that the information was unavailable from any other source.

He noted, however, that the majority's opinion had contained at least two victories for journalists: It held that reporters do have a right, in some circumstances, to protect the identities of people with whom they speak, and that government investigators may not simply bypass an uncooperative reporter by seizing records from a phone company.

"Without such protection, prosecutors, limited only by their own self-restraint, could obtain records that identify journalists' confidential sources in gross and virtually at will," Sack wrote. "Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs — by use of clandestine cell phones and meetings in darkened doorways."

Times attorney Floyd Abrams said the closeness of the vote illustrates a disagreement within the courts about whether reporters have a limited privilege to protect their sources.

"Not until the U.S. Supreme Court takes one of these cases and decides it will we really know where we are," Abrams said.

It was unclear what will happen next in the case. Fitzgerald's office has refused to say whether it received the records from the phone company before the Times sued, and the 2nd Circuit said it didn't know whether a subpoena for the records had secretly been issued.

A spokesman for Fitzgerald declined to comment on the ruling or answer questions.

Fitzgerald is the prosecutor who had Miller jailed last year for refusing to tell a grand jury about conversations she had with the vice president's chief of staff regarding CIA operative Valerie Plame.