Tuesday, August 01, 2006

NY Times loses appeal in investigation of FBI leak (Updated)

In a 2-1 decision with major implications for news organizations who rely on anonymous sources, a federal appeals court reversed a New York judges' ruling that phone companies could not be required to disclose the phone records of two New York Times reporters.

The court majority held that a privilege can be extended to phone records of reporters, but not in this case.

The decision concerns a story by infamous Times reporter Judith Miller and a colleague, Philip Shenon. Through a source, they found out about pending government searches of two Chicago charities thought to be raising money for terrorists. In December, 2001, the reporters contacted the charities to get a comment about the upcoming raid and then printed a story. The FBI claims that the reporters' phone calls tipped off the targets of the investigation, giving them an opportunity to dispose of curcial evidence and risking the lives of law enforcement.

The reporters declined to give up their sources, so the government said it was going to subpoena phone records for the reporters from the telephone companies that provided service for use in grand jury investigation into the leak.

The newspaper argued that the government would breach a reporter's protection of an anonymous source if it obtained the names and/or phone numbers of people contacted by the reporters. The government had argued that the disclosure led to a significant security hazard and it could only identify who leaked the information by reviewing the reporters' phone records.

The 2nd Circuit said that in some cases where other avenues to the truth are available to prosecutors, reporters' phone records could be protected. Based on its decision in 1981 case also challenging subpoenas in a case involving a longshoremen's union, the court said that because the telephone records are key to the work of reporter, they enjoy the same protections as the reporters.

"Under this standard, so long as the third party plays an 'integral role' in reporters' work, the records of third parties detailing that work are, when sought by the government, covered by the same privileges afforded to the reporters themselves and their personal records. Without question, the telephone is an essential tool of modern journalism and plays an integral role in
the collection of information by reporters," the majority said. "Under [the 1981 decision, therefore, any common law or First Amendment protection that protects the reporters also protects their third party telephone records sought by the government."

But in this case, the majority said the reporters’ actions endangered an important federal investigation and therefore were not protected.

"The grand jury thus has serious law enforcement concerns as the goal of its investigation," the 2nd Circuit majority said. "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. 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 majority also said the grand jury could not do its important job without the phone records.
"[A]s the recipients of the disclosures, they are the only witnesses -- other than the source(s) -- available to identify the conversations in question and to describe the circumstances of the leaks. Second, the reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion. The communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches; that is to say, the reporters' actions are central to (and probably caused) the grand jury’s investigation. Their evidence as to the relationship of their source(s) and the leaks themselves to the informing of the targets is critical to the present investigation. There is simply no substitute for the evidence they have."

The court said all that the government needs to do is swear that all other attempts to discover the identity of the leak had been exhausted.

"While we believe that the [affadavit] is sufficient on the facts of this case, we in no way suggest that such a showing would be adequate in a case involving less compelling facts. In the present case, the unique knowledge of the reporters is at the heart of the investigation, and there are no alternative sources of information that can reliably establish the circumstances of the disclosures of grand jury information and the revealing of that information to targets of the investigation. We see no danger to a free press in so holding."

The appeal stems from the Times' win in New York City District Court, where a federal judge ruled that phone records for reporters were protected from being disclosed by the telephone companies. The Times filed its lawsuit after special prosecutor Patrick Fitzgerald, the United States Attorney for the Northern District of Illinois who famously indicted Lewis "Scooter" Libby for perjury, unsuccessfully tried to interview the reporters and get access to their phone records for the state purpose of discovering who leaked the information about the raids.

The Times declined both requests, citing First Amendment protections. Fitzgerald threatened to get the records from the Times' phone company. In August 2004, after Fitzgerald and the Times came to an impasse, two lawyers wrote to the then-Deputy Attorney General asking for a meeting in hopes of reaching a compromise. The Deputy Attorney General refused, saying the DOJ was left with no other alternative then to request the phone records from the telephone providers.

The Times filed a suit soon after in the Southern District of New York, asking a judge declare that under common law and the First Amendment, reporter privileges barred the phone companies from releasing their phone records. The judge in the case ruled in favor of the Times and the government appealed.

On review, the 2nd Circuit majority said that it was possible to balance the two parties' competing interests by redacting portions of the telephone records. The 2nd Circuit said that redacting the records could help the Dept. of Justice on track and protect other anonymous sources not involved with the current controversy. But, the appellate court said the Times reporters would have to cooperate in that endeavor by being honest about which calls were made in furtherance of the story about the raids on the charities and which were not.

"We fully understand the position taken by the Times regarding protection of its reporters' confidential communications with the source(s) of information regarding the [Islamic charities] asset freezes/searches," the majority siad. "However, the government, having unsuccessfully sought the Times’ cooperation, cannot be charged by the Times with having issued an unnecessarily overbroad subpoena. By the same token, the government, if offered cooperation that eliminates the need for the examination of the Times’ phone records in gross, cannot resist the narrowing of the information to be produced."

Based on that conclusion, the 2nd Circuit reversed Judge Sweet's decision in favor of the NY Times and remanded the case.

In a dissenting opinion, 2nd Circuit Judge Robert Sack agreed that there had to be some type of protection afforded to journalists, in order to protect them from over-eager prosecutors.

"Without such protection, prosecutors, limited only by their own self-restraint, could obtain records that identify journalists' confidential sources in gross and virtually at will," Judge Sack said. "Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs -- by use of clandestine cell phones and meetings in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate."

But he disagreed with his colleagues' contention that there was no common law protection for reporters.

"The protection exists. It is palpable; it is ubiquitous; it is widely relied upon; it is an integral part of the way in which the American public is kept informed and therefore of the American democratic process," he said.


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