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Reporters' Files Subpoenaed

Fitzgerald's leak investigation in the Global Relief matter began shortly after NATO troops and U.S. personnel, acting at the direction of the U.S. Treasury's Office of Foreign Assets Control (OFAC), raided several of the charity's overseas offices on Dec. 14, 2001. At the time, the Chicago U.S. attorney's office was conducting a criminal investigation of the Illinois offices of Benevolence International Foundation and Global Relief Foundation.

An examination of those investigations by the Sept. 11 commission said that Fitzgerald's "original plan did not call for searches or takedowns of the GRF or BIF offices in Illinois." Instead, the commission found, the FBI had planned to listen via wiretap to the charities' reaction to the overseas searches.


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

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But, the commission said in findings released after its main report, "this plan went awry when word of the impending action apparently leaked to GRF. FBI personnel learned that some of the targets of the investigations may be destroying documents." Agents then "hastily assembled" a search, the commission reported.

The commission's findings added that "press leaks plagued almost every OFAC blocking action that took place in the United States."

Roger Simmons, an attorney for Global Relief, said documents "weren't being destroyed, but I understand why they thought so." He said the charity's public relations director received a call the evening of Dec. 13, 2001, from a Times reporter. "He said Phil Shenon of the New York Times said one of his colleagues had been told GRF would be frozen the next day," Simmons said. He added: "I think the Times reporter was looking for the first reaction even before the story had broken."

Times reporters and editors declined to comment, referring all questions to Abrams.

Simmons said he advised GRF officials not to destroy anything and was present for the raid the next morning, during which he told FBI agents that GRF had had advance word of the raid. At the time, GRF had sued the Times and other news organizations over reports that the government was scrutinizing its finances for ties to terrorism.

Fitzgerald brought half a dozen GRF officials and other witnesses before a grand jury in 2002 in an effort to learn the identity of the Times's source, according to Simmons. Fitzgerald subsequently sought a subpoena for the Times reporters' phone records last year but was turned down by political appointees at Justice Department headquarters, according to current and former government officials. It is unclear what other investigative steps he has taken since then.

In the CIA leak probe, Fitzgerald obtained depositions from three reporters: Matthew Cooper of Time magazine, Tim Russert of NBC News and Glenn Kessler of The Post. Kessler worked out an agreement with the prosecutor before a subpoena was issued. Russert failed to quash a subpoena and agreed to be questioned. Cooper was briefly held in contempt of court and threatened with jail before Time's lawyers agreed to allow his deposition.

In refusing to grant requests to quash the subpoenas to Cooper and Russert, U.S. Chief District Judge Thomas F. Hogan wrote that a 1972 Supreme Court ruling found that the First Amendment does not exempt reporters from having to respond to grand jury subpoenas.

In all three instances, the reporters said they did not disclose confidential source information to the prosecutor and agreed to be interviewed only because the subject of the prosecutor's questions -- White House official I. Lewis "Scooter" Libby -- signed a waiver freeing reporters to answer questions about the Plame investigation.

Two other reporters subpoenaed in the CIA leak probe, Walter Pincus of The Post and Miller of the Times, have filed motions to quash the subpoenas.

On July 14, 2003, Novak wrote in his syndicated column that two senior administration officials told him that it was Plame's recommendation that led the CIA to send Wilson.

Lawyers and witnesses in the probe said Fitzgerald is interested in a story co-written by Pincus that appeared in The Post on Oct. 12, 2003. That story said that on July 12, 2003, two days before Novak's column was published, an administration official told a Post reporter that Wilson's wife had recommended him for the trip to Niger. The official said she was a CIA employee but did not disclose her name. An attorney for The Post declined to comment.

Novak and his attorney, James Hamilton, have declined to comment on any aspect of the case, including whether prosecutors have sought his testimony.


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