Published November 27, 2006
WASHINGTON – The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing the phone records of two Times reporters in a leak investigation of a terrorism-funding probe.
The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.
Like the CIA leak investigation into who in the Bush administration revealed the identity of Valerie Plame, the current Justice Department probe is being conducted by Patrick Fitzgerald, who is prosecuting Vice President Dick Cheney's former chief of staff in the Plame case.
In June 2005, the Supreme Court refused to take up the Times' request to hear an appeal in the Plame investigation. Fitzgerald was seeking to compel Miller, who retired from the Times a year ago, to reveal her sources in that case.
That leak probe led to Miller's jailing for 85 days before she eventually agreed to testify in Fitzgerald's investigation. Her testimony was crucial in the indictment of former vice presidential chief of staff I. Lewis Libby.
The current dispute stems from Shenon and Miller calling two charities for comment after learning of the planned freeze on their assets from confidential sources.
The Justice Department says the reporters' calls tipped off the charities of upcoming government raids. A federal judge who ruled in the Times' favor said there is no evidence in the case even suggesting that the reporters tipped off the charities about the raids or that the reporters even knew the government would raid either charity.
In August, the 2nd U.S. Circuit Court of Appeals ruled 2-1 that federal prosecutors could see the two reporters' phone records.
The government says the fact that the reporters relayed disclosures from a government source to "targets of an imminent law enforcement action substantially weakens any claim of freedom of the press."
At issue are 11 days of phone records the government plans to review in 2001 — for the dates Sept. 27-30, Dec. 1-3 and Dec. 10-13. In a declaration this month, Fitzgerald said the statute of limitations "on certain substantive offenses that the grand jury is investigating" will expire on Dec. 3 and Dec. 13 of this year.
The current leak probe is in Fitzgerald's capacity as U.S. attorney in Chicago. The Libby prosecution is in Fitzgerald's role as a special counsel who was selected by a Justice Department superior to conduct that particular investigation.