August 1, 2006

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

"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.