There’s a new front in the Justice Department’s war on terror -- a battle against press freedom. Not content with subpoenaing journalists in his inquiry into the identity of the government official who leaked the identity of CIA officer Valerie Plame, Patrick J. Fitzgerald -- the U.S. attorney in Chicago and special prosecutor in the Plame case -- is now seeking phone records of two New York Times reporters in an ostensibly unrelated matter.
Federal prosecutors insist that a 2001 search of the offices of an Illinois-based Islamic charity was foiled when government insiders tipped off the reporters. The Justice Department contends that leak was probably criminal. But its apparent strategy to find the leaker is almost certainly unconstitutional. The government believes that reporter Philip Shenon telephoned the Global Relief Foundation on the eve of the raid to warn the group. Shenon and reporter Judith Miller, who also learned of the imminent search, maintain that they were engaged in routine news-gathering.
The Justice Department has asked for records of calls that Shenon and Miller made in the months immediately after the Sept. 11 attacks. Because the two veteran journalists won’t surrender those records, Fitzgerald is asking the telephone company for them. Interestingly, Miller is also one of the journalists subpoenaed in the Plame affair.
The New York Times filed suit Tuesday to block what is, at base, a fishing expedition, if not outright harassment by a prosecutor frustrated by his inability to make headway in the high-profile Plame inquiry. The newspaper’s lawyers rightly argue that the government’s overreaching request would net records of hundreds of privileged communications between reporters and their sources “on a vast array of vitally important and controversial matters” that had nothing to do with the foundation raid.
It is now up to a federal judge to remind the Justice Department that an independent press won’t long survive if reporters lose their ability to protect the confidentiality of their sources.