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.
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."
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.
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.