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A federal judge in Manhattan ruled Thursday that a qualified reporter’s privilege prevents a prosecutor from obtaining the telephone records of two New York Times reporters for a grand jury investigation into government leaks. Southern District of New York Judge Robert W. Sweet ruled that the phone records of reporters Judith Miller and Philip Shenon are protected by the privilege under both the First Amendment and federal common law. The records are being sought by federal investigators probing leaks of impending raids on Islamic charities in the wake of the Sept. 11 terror attacks. Sweet said his 120-page decision in The New York Times Co. v. Gonzales applied the recognition of the qualified privilege in the 2nd U.S. Circuit Court of Appeals to the context of a grand jury investigation. Excerpts from the decision will be published Wednesday. In a case that presented “competing considerations of the role of secrecy in our society,” Sweet said the private and public interests in allowing reporters to protect the identity of confidential sources trumped an unpersuasive government claim that the records were crucial to its criminal investigation. “To deny the relief sought by The Times under these circumstances, i.e. without any showing on the part of 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 on information provided by confidential sources,” he said. Sweet said it did not matter that the records are being sought by prosecutors directly from phone companies and not from the reporters themselves. The case stems from a probe by Southern District terrorism prosecutor Patrick J. Fitzgerald, now U.S. attorney for the Northern District of Illinois, who convened a grand jury to find out who in the government might have tipped off Miller and Shenon about raids on two charities in December 2001. Fitzgerald released a statement Thursday saying, “We respectfully disagree with Judge Sweet’s decision and are considering our appellate options.” Floyd Abrams, The Times‘ outside counsel in the case, noted yesterday that Sweet’s opinion on the privilege was in direct contrast to the opinion issued two weeks ago by the U.S. Court of Appeals for the D.C. Circuit in a case also involving Miller and Fitzgerald. In that case, the D.C. Circuit ruled that Miller and Matthew Cooper of Time magazine could be held in contempt for refusing to reveal their confidential sources to a grand jury probing the public naming of CIA covert agent Valerie Plame by columnist Robert Novak. The D.C. Circuit, citing the U.S. Supreme Court case of Branzburg v. Hayes, ruled that there is no First Amendment privilege protecting a reporter from appearing before a grand jury. And two of the judges on the circuit split on the issue of whether federal common law recognizes a qualified privilege for reporters. Abrams, who also represents Miller in the Plame case, said Sweet had a very different view of Branzburg and the common law. He said he would be citing Sweet’s opinion when he petitions the D.C. Circuit for rehearing en banc in the Plame case. In the charities case, Fitzgerald claimed Miller, on Dec. 3, 2001, called The Holy Land Foundation for Relief and Development in Richardson, Texas, seeking comment and informed the charity she had learned “government action was imminent” – meaning an impending FBI raid of the charity’s offices. Miller countered that the phone call was not a tip and that she had called only for comment on the government’s intent to block the group’s assets, adding that the FBI’s impending raid “did not come as a surprise to even a casual observer.” On Dec. 13, Shenon contacted a representative of the Global Relief Foundation Inc. in Bridgeview, Ill., for comment about the government’s intent to freeze that group’s assets. Fitzgerald said that, like the Miller phone call, Shenon disclosed that the government was about to pounce – information that was a surprise to the representative. Shenon and The Times sharply dispute the prosecutor’s claims. In both situations, Fitzgerald argued, the charities learned of raids that occurred the next day and the “tips” thus placed FBI agents at risk and gave officials at both foundations time to hide or destroy assets and evidence. Fitzgerald tried unsuccessfully to get The New York Times to voluntarily cooperate with the investigation. Last July, he warned the newspaper that he intended to exercise his authority to obtain the phone records “in very short order” unless it cooperated. The Times’ in-house attorney, George Freeman, and Abrams, of Cahill Gordon & Reindel, also learned from telephone service providers that they would not be informed if the government served the providers with subpoenas for the phone records. In August, Abrams and his fellow outside counsel, Kenneth W. Starr of Kirkland & Ellis, concerned that hundreds of confidential sources would be revealed if the reporters records were turned over to the government, requested a meeting with Deputy Attorney General James Comey on the Fitzgerald threat. Comey declined. The Times filed suit on Sept. 29 and the government abstained from pursuing the records until Sweet decided the motions for summary judgment. Government’s Burden While the government argued Sweet should not take the case, the judge said he had broad discretion to entertain The Times application for a declaratory judgment. Sweet also rejected the government’s request that he refrain from hearing the case so that the issues could be decided by the U.S. District Court for the Northern District of Illinois. The Times’ complaint alleged a violation of the First and Fifth amendments by the government’s efforts to obtain phone records without giving The Times a chance to be heard in court. The paper sought a declaratory judgment that the records are protected from disclosure by privilege under the First Amendment and federal common law. Abrams also claimed the government has not complied with Justice Department guidelines on the issuance of subpoenas to members of the media. Sweet granted the government’s motion for summary judgment on Justice’s guidelines, saying he could not agree with The Times that the guidelines are both binding and privately enforceable. Turning to the heart of the case, Sweet said the 2nd Circuit, based on its reading of Branzburg, “has recognized a qualified First Amendment privilege, applicable in civil actions and in all phases of a criminal prosecution, that protects reporters from compelled disclosure of confidential sources.” The party seeking disclosure, he said, must make a clear and specific showing that the information sought is highly material and relevant, is necessary or critical to the maintenance of the claim and cannot be obtained from other sources. Sweet rejected the government’s contention that this qualified privilege should not be applied in the context of a grand jury investigation. He said the circuit itself has yet to directly address how that privilege should be applied in the grand jury context, but “in any event, the government has not offered a principled basis for concluding” that the “privilege applies in the context of a criminal trial but not the context of a grand jury investigation.” Confidential Sources Sweet then noted that courts in several other circuits have recognized such a privilege, and the 2nd Circuit has “suggested” such a privilege may also be rooted in common law. The recognition of such a privilege serves “significant private interests” because it allows reporters to get information from confidential sources without fearing that they would be forced to disclose the source. “[D]isclosure of the identity of confidential sources would greatly hinder reporters’ ability to gather and report news in the future,” he said. It would also serve important public interests, the judge said, citing a list of stories on matters of “indisputable public concern” that were broken by reporters using confidential sources – from Watergate to investigations of organized crime to the disclosure of environmental and safety hazards at nuclear power plants. Moreover, he said, the “balance of the private and public interests that would be served by the asserted privilege, when weighed against the modest evidentiary benefit that rejection of the privilege would likely achieve, demonstrates that the recognition of a reporter’s privilege under Rule 501 (of the Federal Rules of Evidence) is appropriate here,” he said. The government had not disputed that its subpoena would “capture” a number of records of confidential communications that are irrelevant to the investigation, he said, nor has it tried to show it has “exhausted all reasonable alternative sources of the identities of government officials who made the alleged unauthorized disclosures to Miller and Shenon.” Abrams was joined by Susan Buckley and Brian Markley of Cahill Gordon. Fitzgerald was joined by Assistant U.S. Attorneys Daniel W. Gillogly, James P. Fleissner, Debra Riggs Bonamici and Stuart D. Fullerton. This article originally appeared in the New York Law Journal , a publication of ALM.

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