New York Times seeks shield for phone records
on Nov 25, 2006 at 11:20 am
(UPDATED 11:20 a.m. Saturday, Nov. 25)
The New York Times on Friday asked Supreme Court Justice Ruth Bader Ginsburg to delay a federal appeals court order that requires the newspaper to turn over to federal prosecutors telephone records of two reporters for use in a government investigation of suspected news leaks. The application for a stay was New York Times Co. v. Gonzales (06A525). The newpaper asked for a postponement until after the Supreme Court can act on an appeal that The Times’ lawyers said they would file with the Justices by Dec. 24.
Times attorneys said that the government subpoena, issued in a probe of news accounts of a government move to seize the assets of two Islamic charities, would cover three weeks of the reporters’ telephone calls and thus “would reveal the identities of dozens of confidential sources that have no relationship whatsoever to the government’s investigation.”
The Times’ application, including lower court rulings, can be found here. An initial Justice Department response can be found here, and the Department’s opposition memorandum can be found here.
“The issue in this case,” the Times’ application said, “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” that other means of obtaining the information had been tried and failed. “At its core, this case concerns the proper role of the judiciary when the government seeks disclosure of a confidential source…In this case,…the Second Circuit deferred, even succumbed, to the Executive Branch to such a degree that it failed to perform its core judicial function.”
The Times indicated that its coming appeal to the Supreme Court will seek a privilege of non-disclosure of confidential sources under the common law and under the Constitution’s First Amendment.
The probe at issue involves a government inquiry into what officials believe were leaks of government plans for a freeze of the assets of two charities — the Global Relief Foundation and the Holy Land Foundation. The government froze the assets of a number of groups with Islamic connections following the terrorist attacks of Sept. 11, 2001. In demanding access to telephone records of Times reporters Philip Shenon and Judith Miller, the government contends that they tipped off the two charities about the planned moves against their assets.
The Justice Department, in a filing Saturday morning, argued that the Second Circuit Court ruling at issue would not be worthy of Supreme Court review, so no stay should be issued. It contended that the lower court ruling not only was correct, but also was “factbound and creates no conflict of authority.” The government argued that, whether or not news organizations have any privilege to shield the identities of their sources when sought in a criminal investigation, any such claim was overridden by the government’s needs for the information at issue here. “This case,” the Department said, “presents a highly atypical fact pattern, in which the reporters themselves were active participants in alerting the targets of asset freeze and searches to imminent government action.”
It added: “In that circumstance, the case for disclosure of the reporter’s telephone records is compelling: the government’s investigation is manifestly important; the reporters’ information is critical; and there is simply no substitute for the evidence they have.” Moreover, it contended, this case does not involve a claim of access to the reporters’ own records, but rather access to telephone records held by third parties. “This case,” it said, “would provide an exceptionaloly unsuitable vehicle for considereation of the general legal issues that applicant seeks to raise.”
Justice Ginsburg has the authority to act alone on The Times’ request, but also may refer it to the full Court for action. With the government response in hand, she or the Court could act at any time.
