Supreme Court won’t protect Times’ records

WASHINGTON – The Supreme Court on Monday refused a request from the New York Times to stop federal prosecutors from examining the telephone records of two of its reporters, part of a grand jury probe of an alleged leak in a terrorism-funding investigation.

The court’s decision not to get involved opens the way for U.S. Attorney Patrick Fitzgerald in Chicago to review the telephone records of Times reporter Philip Shenon and former reporter Judith Miller. He has said the statute of limitations will expire on Dec. 3 and Dec. 13 on certain offenses a grand jury is investigating.

The Times had asked Justice Ruth Bader Ginsburg to stay an appeals court ruling in the government’s favor. She referred the matter to the full court, and it declined Monday in a one-sentence order that did not state its reasoning.

It was the second time in as many years the court has refused to get involved in a case pitting the government against the Times, and lets stand a ruling that is the latest in a string of court decisions that have gone against media organizations that resist revealing confidential sources.

The current case arises from Fitzgerald’s post-Sept. 11, 2001, investigation of possible links between al-Qaida and two U.S.-based Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

In December 2001, the Times reporters learned of plans to freeze the groups’ assets, and called for comment shortly before FBI agents raided the offices. Fitzgerald is trying to find out if any government officials illegally leaked information to the reporters, and said disclosure of the government’s plans tipped off the charities, endangering law enforcement officials. The Times disputes this.

Two years after the stories, and after the Times had declined to reveal its confidential sources, Fitzgerald said he planned to subpoena approximately three weeks’ worth of the reporters’ telephone records. The Times contends that could reveal the identities of sources who have no relationship to the investigation.

“The issue in this case is whether reporters have any protection at all against compelled disclosure of their sources and whether the government may overcome such protections that do exist based only on a conclusory affidavit of counsel lacking anything that resembles clear and specific evidence,” the newspaper’s motion said.

A district judge in New York in 2005 agreed with the Times that it had a right to protect confidential sources. But a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit disagreed, ruling 2 to 1 that the Times had no First Amendment or other legal right to block the government from reviewing the records.