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Reporters' Phone Records Are Protected, Court Rules

U.S. Attorney Can't Force N.Y. Times to Supply Documents

By John Mintz
Washington Post Staff Writer
Friday, February 25, 2005; Page A03

The New York Times has a qualified right under the First Amendment and federal common law to protect the identity of its confidential sources by refusing to release telephone records to a prosecutor, a federal judge in New York ruled yesterday.

U.S. District Judge Robert W. Sweet ruled that a federal prosecutor in Chicago cannot compel the newspaper to turn over records of two Times reporters' phone calls in 2001 as part of an investigation into possible government leaks. The effort by U.S. Attorney Patrick J. Fitzgerald came in the cases of two Muslim charities accused of possible ties to terrorists.

New York Times's Judith Miller, is one of two reporters whose contacts regarding Muslim charities are being investigated. (AP)

Yesterday's decision runs counter to a ruling issued in Washington last week. A three-member panel of the U.S. Court of Appeals for the D.C. Circuit decided on Feb. 15 that reporters for the New York Times and for Time magazine can be jailed if they continue to refuse to answer questions about their confidential sources before a grand jury. The grand jury is investigating whether an administration official knowingly revealed the identity of an undercover CIA officer.

Lawyers for the Times welcomed yesterday's decision, but some First Amendment experts said Sweet's decision may have little sway in freedom of the press cases outside of New York.

John Harrison, an expert on the First Amendment at the University of Virginia law school, said yesterday's ruling -- from a lower court judge in a separate circuit -- is unlikely to influence the full D.C. Circuit next month, when it is expected to hear an appeal by Time and the Times.

In any case, he said, Sweet's stance stressing reporters' rights over prosecutors' powers "is the minority position" among most judges. "The more common position is there's nothing special about reporters," Harrison said.

In his ruling yesterday, Sweet said that "the free press has long performed an essential role in ensuring against abuses of governmental power." To rule in favor of the government in this case, he added, "has the potential to significantly affect the reporting of news based upon information provided by confidential sources."

The judge said the case boils down to a struggle between the U.S. government, which wants to maintain the integrity of a federal investigation into possible terrorist activity, and the American press, which seeks to preserve its ability to report on sensitive and controversial matters. "The government has failed to demonstrate that the balance of the competing interests weighs in its favor," Sweet wrote.

The case began in late 2001, when federal agents were investigating two Islamic foundations for alleged ties to terrorists. On Dec. 3, 2001, Times reporter Judith Miller telephoned officials with the Holy Land Foundation for Relief and Development, a Texas-based charity accused of being a front for Palestinian terrorists, and asked for a comment about what she said was the government's probable crackdown on the group.

U.S. officials said this conversation and Miller's article on the subject in the Times on Dec. 4 increased the likelihood that the foundation destroyed or hid records before a hastily organized raid by agents that day.

On Dec. 13, Times reporter Philip Shenon called the Illinois-based Global Relief Foundation and asked for comment about the government's intention to freeze its assets because of allegations it had ties to terrorists. "FBI personnel learned that some of the targets [of the investigation] may be destroying documents," and agents "hastily assembled" a raid on the charity on Dec. 14, according to a report by the commission that investigated the Sept. 11, 2001, attacks.

Prosecutor Fitzgerald has assembled a federal grand jury in Chicago to look into alleged leaks to the reporters. Fitzgerald's office has sought records of calls made on the two reporters' phones about that time, but lawyers for the Times argued in part that prosecutors did not show that they had exhausted other avenues to unmask the leakers.

Times lawyer Floyd Abrams called Sweet's decision "a substantial vindication of the rights of journalists to keep their word to their confidential sources," and said he will bring it up in the other case.

George Freeman, assistant general counsel at the New York Times Co., said in a statement that the paper is "particularly gratified that the judge accepted our arguments that the reporter's privilege ought to be applied on both constitutional and common law grounds."

Miller is also one of the reporters threatened with jail in the separate case, in which a grand jury is investigating who exposed the identity of undercover CIA officer Valerie Plame to columnist Robert D. Novak. Miller and Time magazine reporter Matthew Cooper have refused to appear before a grand jury in Washington.

Fitzgerald is also the prosecutor in that case but is serving as an appointed special counsel.

Staff researcher Julie Tate contributed to this report.

© 2005 The Washington Post Company