US wins appeal to seek NY Times phone records

Reuters
US wins appeal to seek NY Times phone records
By Christine Kearney

NEW YORK (Reuters) - The U.S. government won an appeal on Tuesday allowing it to seek phone records of New York Times reporters investigating government probes into Islamic charities shortly before the September 11 attacks.

The U.S. Second Circuit Court of Appeals ruled in favor of the government, which wants to know the identity of government sources who might have given information to two New York Times reporters, including former reporter Judith Miller.

The decision is the latest episode in the free speech battle that has pitted U.S. prosecutor Patrick Fitzgerald against the Times and Miller.

Miller spent 85 days in jail last year for resisting Fitzgerald's requests to reveal her sources in a separate case that led to the indictment of Vice President Dick Cheney's chief of staff, Lewis "Scooter" Libby.

The case decided on Tuesday involves Fitzgerald heading a grand jury investigation into how Miller and fellow reporter Philip Shenon learned of government plans to search the premises of two Islamic charities, and sought comment from them before the search took place.

The Times filed a lawsuit and successfully blocked a threatened subpoena being sought by Fitzgerald to seek the phone records of the two reporters after the newspaper refused to identify their sources.

In a 2-1 ruling, the appeals court overturned a lower court ruling that said the phone records were protected from disclosure by a reporter's privilege under the First Amendment of the Constitution, which guarantees freedom of speech and the press.

"We are disappointed in the decision," said the Times' assistant general counsel George Freeman.

A spokesman for Fitzgerald's office declined to comment.

The appeals court agreed a reporter's third party telephone records can be covered by the same privileges afforded to their personal records, but said the government had shown the information could not be obtained elsewhere.

The grand jury investigation's "serious law enforcement concerns" override a reporter's protection of privilege, the court said, and because the reporters' actions were central to the investigation, "there simply is no substitute for the evidence they have."

"No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters' evidence. It is therefore not privileged," the court said.