High court will not stop review of reporters' phone records

NEWS MEDIA UPDATE · U.S. SUPREME COURT · Confidentiality/Privilege · Nov. 28, 2006


High court will not stop review of reporters’ phone records

The high court has refused a request by The New York Times to prevent federal prosecutors from using reporters’ phone records to identify confidential sources.

Nov. 28, 2006 · The U.S. Supreme Court will allow federal prosecutors to begin reviewing the phone records of New York Times reporters Judith Miller and Philip Shenon, even though the newspaper has said the review may compromise the confidentiality of its reporters’ sources.

In a one-sentence order issued on Monday, the court denied the Times’ motion to temporarily deny prosecutors access to the records.

Miller, who no longer works for the Times, and Shenon received information in 2001 about two Islamic charities with suspected terrorist ties. Planned government raids on those charities were canceled after the reporters called government officials for comment and indicated knowledge of the planned raids.

A grand jury in Chicago is investigating the matter.

During the course of the investigation, the Times has refused to tell prosecutors who gave the reporters information about the charities. In an effort to uncover the identities of the reporters’ sources, lead prosecutor Patrick Fitzgerald requested that a lower court subpoena phone companies and demand copies of the reporters’ phone records.

The Times asked the court to quash the subpoena and argued, among other things, that the subpoena was overbroad since the phone records would reveal the identity of confidential sources not related to the present case.

Although a lower court sided with the Times in February 2005, a federal appeals court panel in New York said in August that “no grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters’ evidence.” That court found that no reporter’s privilege would protect the phone records, and the full appeals court denied the Times’ request for rehearing.

Because lawyers for the Times planned to appeal the decision to the Supreme Court, they asked Justice Ruth Bader Ginsburg to temporarily prevent prosecutors from accessing the records pending either the completion or the denial of an appeal.

Emergency motions at the Supreme Court level are directed to one justice based on the location of the lower appeals court. Motions from the appeals court in New York are directed to Ginsburg.

Fitzgerald and the Department of Justice countered that without immediate access to the phone records, the statutes of limitations would bar prosecutions of several offenses that the grand jury is investigating.

Although the motion was directed to Ginsburg individually, she referred it to the court and the order stated that the court denied the Times’ motion.

Times attorney George Freeman said it is “unlikely” that the case will go forward at the Supreme Court level “since it would be months and months before the court would decide whether to take the case or not” on a petition for review. By that point, he said, the records will already have been revealed and the damage done.

Freeman said the most likely next step would be another hearing in the lower court “to figure out the breadth of what the government can look at, since the appeals court indicated that” perhaps the subpoena was overbroad.

Despite this possible next step, Freeman said that “there’s really no good solution at this point” since Monday’s order makes “this case the next in a series where the courts have not protected journalists and their abilities to use confidential sources.”

Freeman said that if the courts continue to refuse protection to journalists, reporters will have to “look to Congress to ameliorate this situation.”

Although Fitzgerald and Miller were both key players in the Valerie Plame leak investigation, that case is unrelated to the Islamic charities investigation.

(The New York Times Company v. Gonzales, Media Counsel: Floyd Abrams, Cahill, Gordon & Reindel, LLP, New York)ES

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