Justice Department Asks Supreme Court Not to Stop Phone Record Reviews

WASHINGTON – The Justice Department on Saturday asked the Supreme Court to refrain from stepping into another constitutional free speech battle featuring federal prosecutor Patrick Fitzgerald and The New York Times.

The case involves a leak probe by Fitzgerald to track down the confidential sources of Times reporters Judith Miller and Philip Shenon for stories in 2001. Miller, who spent 85 days in jail in 2005 in connection with a separate investigation conducted by Fitzgerald, retired from the newspaper a year ago.

In a 2-1 decision, the 2nd U.S. Circuit Court of Appeals has said prosecutors can see the journalists' phone records.

Their stories revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

Shenon and Miller called the two organizations for comment about the information on freezing assets, a move the government says tipped off the charities of planned government raids.

On Friday, the newspaper asked Justice Ruth Bader Ginsburg to temporarily block the government from going through the records and allow it time to prepare a petition arguing why the court should take up the case.

In a response requested by Ginsburg, the government cites a declaration by Fitzgerald on Nov. 13 that says the time for filing criminal charges will expire in the next three weeks.

Temporarily blocking the government from reviewing the phone records would cause "irreparable harm to a significant criminal investigation," the Justice Department told the Supreme Court in a 40-page filing.

In June 2005, the Supreme Court refused to take up a separate case involving constitutional free speech rights in which Fitzgerald sought to compel Miller to reveal her sources in the leak of CIA officer Valerie Plame's identity.

That leak probe led to Miller's jailing before agreeing to testify in Fitzgerald's investigation. Her testimony was critical in the indictment of Vice President Dick Cheney's former chief of staff, I. Lewis Libby.

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.