NEW YORK — A federal judge ruled today that The New York Times has a
First Amendment privilege to protect the confidentiality of its sources by
denying the government phone records in certain instances.
Saying that secrecy in government appears to be on the rise, Judge Robert W. Sweet refused to toss out a First Amendment lawsuit the newspaper filed last year to stop the Department of Justice from getting records of phone calls between two veteran journalists and sources.
"The free press has long performed an essential role in ensuring against abuses of governmental power," the judge said.
In the 120-page ruling, Sweet noted that the government can obtain telephone records during a
grand jury investigation when the information sought is highly material and
relevant and cannot be obtained elsewhere but he said those conditions had not
been met.
"To deny the relief sought by the Times under these circumstances, without
any showing on the part of the government that the sought records are necessary,
relevant, material and unavailable from other sources, has the potential to
significantly affect the reporting of news based upon information provided by
confidential sources," Sweet wrote.
The government had sought records reflecting confidential communications
between journalists Philip Shenon and Judith Miller and their sources from third
parties that the newspaper said were unlikely to be interested in challenging
its authority.
The Justice Department had advised the Times that it planned to obtain
records of all telephone calls by Shenon and Miller for 20 days in the months
immediately following the Sept. 11, 2001, terrorist attacks.
Times spokeswoman Catherine Mathis said, "We're very pleased with the
ruling."
Megan L. Gaffney, a spokeswoman for federal prosecutors in Manhattan, said
the office had no comment.
In his ruling, Sweet wrote: "The record before this court has demonstrated
that the reporters at issue relied upon the promise of confidentiality to gather
information concerning issues of paramount national importance — the nation's
preparedness for the attacks of September 11, the government's efforts to combat
al-Qaida post-September 11, and the risk posed to the American people by
biological weapons.
"The government has failed to demonstrate that the balance of the competing
interests weighs in its favor," he added.
The government had 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 group accused of
funding terrorist operations.
The Dec. 14, 2001, raid was not unexpected, and the newspaper had reported on
Oct. 1, 2001, that the organization was suspected of providing money and support
to terrorist operations, the Times said in its lawsuit. The suit added
that neither Shenon nor the Times reported on the raid until after it
occurred.
The lawsuit stated that Miller's phone records were being sought in
connection with an investigation into an alleged leak from a government employee
to Miller in late September and early October 2001. It said the alleged leak
concerned a government decision to freeze the assets of the Global Relief
Foundation and a Dallas-based Islamic charity, the Holy Land Foundation, which
has been accused of aiding Hamas.
In a separate case, Miller is one of two reporters facing jail for refusing
to divulge their sources about the 2003 leak of an undercover CIA officer's
name. The other is Matthew Cooper of Time magazine.