Appellate Court to Hear Phone Records Case

By LARRY NEUMEISTER, Associated Press Writer
Mon Feb 13, 8:48 PM ET

NEW YORK - A federal appeals court on Monday said it would review a lower-court decision that ruled the government was not entitled to see telephone records of two reporters who talked with confidential sources after the 2001 terrorist attacks.

Judge Robert D. Sack of the 2nd U.S. Circuit Court of Appeals said the ruling deserved another look because, if upheld, it would set a nationwide precedent.

The government had sought 20 days' worth of phone calls by New York Times journalists Judith Miller and Philip Shenon in the fall of 2001, when the reporters had hundreds of conversations with dozens of confidential sources.

Federal officials said the records were needed for a grand jury investigation of government leaks in Illinois. But the Times sued in 2004, asking the lower court to order the government to stop its pursuit of the records.

Judge Robert Sweet agreed, ruling last year that the Justice Department had failed to prove it could not conduct the probe without the phone calls.

During arguments before the appeals court Monday, government lawyer James P. Fleissner said Sweet's ruling was inappropriate, especially since it concerned a case in Illinois, not New York.

Times attorney Floyd Abrams 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.

"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 Times lawsuit said Miller's phone records were sought for the investigation into a possible leak about a government decision to freeze the assets of the Global Relief Foundation, an Islamic charity accused of funding terrorism, as well as those of another Islamic charity, the Holy Land Foundation.

The government told the Times it wanted phone records from Shenon for its investigation into a leak about a planned raid on the foundation's offices.

In his ruling, Sweet said the records should be off-limits to the government because the reporters were gathering information "of paramount national importance" about terrorism preparedness and efforts to combat al-Qaida. He also said it was likely that whistle-blowing would decrease if courts hindered journalists' ability to gather news.

Monday's arguments were attended by Miller, who spent 85 days in jail last year for defying court orders in an unrelated CIA leak probe. She has since retired from the Times.

Also attending was Patrick Fitzgerald, the U.S. attorney in Chicago who was appointed to investigate whether crimes were committed when Bush administration officials leaked the identity of a covert CIA agent to reporters.

Fitzgerald, who questioned Miller before a grand jury after her release from jail, shook hands with Miller after the arguments Monday.

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.

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