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Reporters' Files Subpoenaed

New Leak Probe Concerns 2001 Raid on Islamic Charity

By Susan Schmidt
Washington Post Staff Writer
Friday, September 10, 2004; Page A16

The federal prosecutor who has served at least four reporters with grand jury subpoenas in his investigation into the disclosure of an undercover CIA officer's identity is now pursuing a second leak case in which he has obtained a subpoena for New York Times reporters' telephone records.

Chicago U.S. Attorney Patrick J. Fitzgerald, who is also acting as a special prosecutor in the CIA leak probe, informed the Times by letter last week that his office has subpoenaed telephone company records. The move is part of an effort to determine whether anyone in the government told Times reporters of planned federal asset seizures in December 2001 at the offices of an Islamic charity suspected of providing funding to al Qaeda, according to several sources familiar with the case.

U.S. Attorney Patrick J. Fitzgerald is seeking reporters' phone records. (Frank Polich -- Reuters)

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The FBI believes that a call from a reporter to a representative of the charity, the Illinois-based Global Relief Foundation, may have led to the destruction of documents there the night before the government's raid, according to findings by the Sept. 11 commission.

The subpoena seeks the phone records of two Times reporters, Philip Shenon and Judith Miller, according to the sources. Officials at the Times and in Fitzgerald's office refused to comment.

In the CIA leak case, the Times, The Washington Post and other news organizations have been skirmishing with Fitzgerald as he pursues reporters and their confidential sources in search of who may have leaked the name of undercover CIA officer Valerie Plame to columnist Robert Novak.

News organizations have confronted the reality that the law generally offers reporters limited protection from grand jury subpoenas issued by a prosecutor with a reputation for toughness who appears unusually willing to take on journalists.

Fitzgerald this summer subpoenaed reporters at the Times, The Post, Time magazine and NBC News in his investigation into whether an administration official illegally disclosed Plame's identity and her employment as a covert CIA officer. Under the Intelligence Identities Protection Act of 1982, it can be illegal for someone with authorized access to knowingly disclose the name of a covert agency employee.

Plame's husband, Joseph C. Wilson IV, was sent by the CIA in 2002 to check out claims that Iraq tried to buy uranium in the African country of Niger. He has sharply disputed the claims and has suggested that his wife's name was leaked in retaliation.

Fitzgerald has also asked questions in the Plame case about the disclosure of other classified material that appeared in news reports about the Niger uranium issue, according to one lawyer with knowledge of Fitzgerald's probe.

Floyd Abrams, the attorney for the Times, declined to answer most questions about Fitzgerald's interest in reporters' calls to Global Relief. "We have had an exchange of letters," he said. "We are still discussing the matter with him." He said that he did not know whether Fitzgerald has obtained the records and whether he can be persuaded "not to look at them."

Federal grand jury subpoenas seeking documents or testimony from reporters in criminal investigations are rare. The Justice Department's internal guidelines require that prosecutors take "all reasonable alternative investigative steps" before subpoenaing reporters' phone records.

Fitzgerald's subpoenas to the four reporters in the CIA leak probe did not have to be approved by the Justice Department because, in that matter, he is acting in his capacity as a special counsel. Deputy Attorney General James Comey appointed Fitzgerald to take over the investigation last December to avoid any appearance of or actual conflict of interest in having the administration investigate itself.

"The reporters' privilege is under attack, and this could be a significant loss for the newsgathering process," said Pete Weitzel, who is working with the Reporter's Committee for Freedom of the Press in mobilizing public support from 40 media organizations for the subpoenaed reporters.

Weitzel said the groups are concerned not only about reporters being sent to jail for refusing to disclose confidential sources, but also "that we'll get some kind of bad law out of this that will work against reporters in many, many other cases."

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