Feds take bid to access reporters’ phone records to 2nd Circuit

Tuesday, February 14, 2006

NEW YORK — A federal appeals court yesterday heard arguments in the government’s bid to access the phone records of two New York Times reporters.

The 2nd U.S. Circuit Court of Appeals said it would carefully review the reasoning of a lower court judge who ruled that the government could not obtain the records from third parties such as phone companies. Appeals Judge Robert D. Sack said the February 2005 ruling by U.S. District Judge Robert Sweet merited a serious look because, if upheld, it would set a precedent for every court in the country.

Sweet concluded that the Department of Justice had failed to prove that it could not obtain what it needed for a federal grand jury investigation in Illinois of government leaks in the fall of 2001 without reporters’ phone records.

The ruling came after The New York Times asked the court to order the government to stop its pursuit of phone records showing calls between journalists Judith Miller and Philip Shenon and their sources following the Sept. 11, 2001, attacks.

The government had told the Times that it planned to obtain records of all phone calls by the reporters for 20 days in the months after the attacks, when the reporters had hundreds of conversations with dozens of confidential sources.

Representing the government during arguments before the appeals court yesterday was Assistant U.S. Attorney James P. Fleissner. Patrick Fitzgerald, the U.S. attorney in Chicago, attended yesterday’s proceedings but did not address the court, The New York Sun reported.

Fleissner told the appeals judges that Sweet’s ruling was inappropriate, especially since it concerned a case in Illinois rather than New York.

Attorney Floyd Abrams, arguing for the Times, said the challenge was properly brought in Manhattan, where the newspaper is based.

He said the newspaper does not know if the government obtained the records and looked at them.

“Telephone records are the extension of the journalist herself,” Abrams said. “Telephone records are the embodiment of the speech of the journalist and require the same protection.”

The government told the Times it wanted phone records from Shenon for a probe into a leak by a government employee about a planned raid on the offices of the Global Relief Foundation, an Islamic charity accused of funding terrorism.

The Times’ lawsuit, filed in the fall of 2004, said Miller’s phone records were sought in connection with a probe into a possible leak about a government decision to freeze the assets of the Global Relief Foundation and another Islamic charity, the Holy Land Foundation.

Yesterday’s arguments were attended by Miller, who spent 85 days in jail last year for defying court orders in an unrelated CIA leak probe and who has since retired from the Times after saying she had to leave because she had “become the news.”

Fitzgerald, who as special counsel in the CIA leak probe questioned Miller after her release from jail before a grand jury investigating the case, shook hands with Miller after the arguments yesterday.

Fitzgerald declined to comment, while Miller endorsed what Abrams told the appeals court.

“There’s no distinction between subpoenaing me and subpoenaing my phone records,” she said outside court.

She described the issue immediately before the appeals court as a “small slice of the problem” that ultimately must be remedied with a federal shield law to allow journalists to protect their relationship with sources.

Joining Sack in considering the case are Judges Amalya Lyle Kearse and Ralph K. Winter Jr., who, according to the Times, did not attend yesterday’s arguments but will participate in deciding the case after reviewing a recording and transcript of the proceedings.

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