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N.Y. Times Must Surrender Reporters' Phone Data
Appellate Panel Rejects First Amendment Claim in Federal Grand Jury Probe

By Charles Lane
Washington Post Staff Writer
Wednesday, August 2, 2006

The New York Times may not withhold reporters' phone records from a federal grand jury investigating an alleged leak of a pending government raid on two Islamic charities suspected of supporting terrorism, a federal appeals court ruled yesterday.

A three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit ruled 2 to 1 that the Times has no First Amendment or other legal right to refuse a demand for the records from the grand jury in Chicago, which was empaneled by U.S. Attorney Patrick J. Fitzgerald.

The government's interest in rooting out a possible crime outweighs the newspaper's interest in protecting reporters' sources, the court concluded.

"The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence," Judge Ralph K. Winter Jr. wrote. "At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts -- informing the targets of those impending actions -- that may constitute a serious obstruction of justice."

The ruling, which was joined by Judge Amalya L. Kearse, threw out a 2005 decision by a U.S. district judge in New York, who had agreed with the Times that it had a right to protect confidential sources. Judge Robert D. Sack dissented.

The 2nd Circuit decision was the latest in a string of court defeats for media organizations seeking to protect confidential sources.

Last year, the U.S. Court of Appeals for the District of Columbia Circuit ordered Judith Miller and other reporters to supply a grand jury empaneled by Fitzgerald, acting as a Justice Department special counsel, with names of sources in the Valerie Plame CIA leak investigation.

Though the legal issues and the cast of characters are similar, this case is separate from the case of the Plame leak.

It arises from Fitzgerald's post-Sept. 11, 2001, investigation of possible links between al-Qaeda and two U.S.-based Islamic charities, the Holy Land Foundation and the Global Relief Fund.

In December 2001, Times reporters Miller and Philip Shenon learned of a pending government move to freeze the two groups' assets. They called the charities for comment shortly before FBI agents raided their offices.

Fitzgerald argued that the Miller and Shenon calls tipped off the charities, increasing the risk to agents and encouraging destruction of evidence. The Times denied this. Fitzgerald is trying to find out if any government officials illegally leaked information to the reporters.

A Times lawyer, George Freeman, said the newspaper is "disappointed" in the ruling and is considering its options. The Times could ask the full 2nd Circuit to reconsider the case, or it could appeal to the Supreme Court.

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