The two-to-one
decision on August 1, overturning a previous decision that
favored the Times, lays out the government's case. According
to the U.S. Court of Appeals for the Second Circuit, after
9/11, the federal government became much more interested
in investigating "the funding of terrorist activities by
organizations raising money in the United States." In the
course of those investigations, the court said that the
government developed a plan to freeze the assets and/or
search the premises of two foundations, the Holy Land Foundation
and the Global Relief Foundation.
Two New
York Times reporters, Judith Miller and Philip Shenon,
learned of these plans, and called each group for comment
on the threatened government actions.
Believing
those calls "endangered the agents executing the searches
and alerted the targets, allowing them to take steps mitigating
the effect of the freeze and searches," federal prosecutor
Patrick Fitzgerald convened a grand jury investigation
into the disclosure of its plans regarding the foundations.
He wanted to know who in the government had leaked the
information.
The Islamic
charities deny any wrongdoing. But one of them, The Global
Relief Foundation, was reported to be under suspicion of
assisting al Qaeda. The other, the Holy Land Foundation,
was directly accused by then-Treasury Secretary Paul O'Neill
of providing financial support to terrorists.
Summarizing
new developments in the case, the New York Sun said that "The
case entered the courts in 2004, when the Times learned
that prosecutors from Chicago were seeking records of phone
calls that Ms. Miller and Mr. Shenon had made during several
weeks in 2001—around the time they published stories on
two Islamic charities with suspected ties to terrorists…Prosecutors…have
claimed that the two reporters had tipped off the groups
about impending raids and of the government's decision
to freeze their assets. The government has said the phone
records are relevant to a grand jury investigation into
who inside the government had originally tipped off the
reporters. The Times has maintained that the reporters
did nothing beyond routine reporting."
According
to an article on
the website of the Reporters Committee for Freedom of the
Press, an attorney for the Global Relief Foundation (GRF),
Roger Simmons, admits that Shenon called the charity on
Dec. 13, 2001, seeking comment on the seizures that were
going to take place the following day. However, Simmons
denied that GRF destroyed any documents and notified the
FBI agents that GRF had learned of the raid in advance.
Fitzgerald
tried through various means to get the names of the government
sources who leaked the information before he went to the
Justice Department and then the courts to gain access to
the reporters' phone records.
Hiding
behind the First Amendment, the Times has consistently
argued that the government should not be allowed to examine
the reporters' phone records because confidential sources
would be revealed. But that argument was flatly rejected
by Judge Ralph Winter, who wrote for the majority that
there was "no danger to a free press" in allowing the government
access to the records. He said, "Learning of imminent law
enforcement asset freezes/searches and informing targets
of them is not an activity essential, or even common, to
journalism. Where such reporting involves the uncovering
of government corruption or misconduct in the use of investigative
powers, courts can easily find appropriate means of protecting
the journalists involved and their sources."
The ruling
that was overturned by this decision said that the First
Amendment did provide a qualified privilege to maintain
the confidentiality of the reporters' phone records. Winter
and the majority on the Court of Appeals have basically
found that there is no such privilege. The case could now
be headed for the Supreme Court, which in the past has
failed to find any constitutional right by the press to
protect sources.
Essentially,
Judge Winter has put forward a very reasonable argument
that there should be no shield law, and that there are
court precedents, state-court shield laws, and federal
guidelines that govern such a situation. In this case,
the media argument for maintaining confidential sources
runs directly contrary to the clear and convincing need
for the government to know who leaked the information to
the Times, thus possibly compromising a sensitive law enforcement
action.
As we
have argued in the past, and as this case makes perfectly
clear, there should be no sweeping federal protection for
reporters and their sources. The case for a federal shield
law, when the media have become active players in national
security and terrorism matters, does not hold up. This
case helps demonstrate why.
Miller
has insisted that she was just pursuing a story, and that
federal authorities don't understand how journalism works.
Perhaps she doesn't truly understand how law enforcement
works, and that that the need to protect the American people
against terrorist attacks takes precedence over her perceived "rights" as
a journalist. CRO
The America Show
