Justices reject N.Y. Times in leak case

Times Staff Writer

The Supreme Court refused Monday to shield the New York Times and two of its reporters from a prosecutor’s probe into who leaked word of planned raids on two Muslim charities five years ago.

The decision clears the way for federal prosecutors to review the phone records of the two reporters for several weeks in the fall of 2001. The prosecutor, U.S. Atty. Patrick J. Fitzgerald in Chicago, says the records will help point to the source of the leak.

The New York Times maintains it has a 1st Amendment right to protect the confidentiality of its sources. Floyd Abrams, the newspaper’s lawyer, said, “There has been no claim of wrongdoing against the Times reporters. The only thing at issue here is a leak investigation in which the government seeks to obtain information on who spoke to the journalists.”


Two years ago, lawyers for the newspaper went before a federal judge in New York and won an order that barred the prosecutor from examining the phone records.

But in August, the U.S. 2nd Circuit Court of Appeals reversed that order in a 2-1 decision. The prosecutor has a “compelling interest” in learning who tipped off the reporters to the planned raids, thereby “endangering federal agents” and permitting the “targets to spirit away incriminating information,” said Judge Ralph K. Winter in the appeals court opinion.

“We see no danger to the free press in so holding,” he added. “Learning of imminent law enforcement asset freezes or searches and informing targets of them is not an activity essential ... to journalism.”

The Supreme Court has never squarely ruled that the news media has a 1st Amendment right to protect its confidential sources. On Monday, the justices turned down an emergency plea from the Times in a one-line order.

This is the second time in two years that the Times and its former reporter Judith Miller have been on the losing end of a legal battle with Fitzgerald. Besides being the U.S. attorney in Chicago, Fitzgerald is the special prosecutor who was named to look into who leaked to the media the name of former CIA agent Valerie Plame.

In that case, Fitzgerald sought the cooperation of several reporters who spoke with top officials of the Bush White House, but Miller refused, citing the 1st Amendment.


Fitzgerald went to court to compel Miller’s cooperation, and the Supreme Court refused the Times’ request to intervene. Miller spent 85 days in jail before agreeing to talk to Fitzgerald.

The probe of the two Muslim charities -- the Holy Land Foundation and the Global Relief Foundation -- intensified after the attacks of Sept. 11, 2001. Officials believed the two groups might be funding terrorists in the Mideast, and they moved to freeze their assets.

On Dec. 4, 2001, the FBI raided the offices of the Holy Land Foundation. The day before, Miller had called one of its officials asking for comment on the government’s plans to move against it. She wrote in one story that she had been tipped off by “confidential sources.”

A similar sequence of events happened a few days later. On Dec. 13, 2001, Times reporter Philip Shenon contacted the Global Relief Foundation seeking comment on the government’s plan to freeze its assets. The foundation’s office was raided the next day, and FBI agents reported that charity officials had removed many items.

Fitzgerald then began a probe into who in the government spoke to the reporters.