F-- A Confidential Source

In today's NYTimes there is an article (reprinted below) about how Federal Prosecutors have won the right to inspect the telephone records to two NYTimes reporters to suss out their confidential sources.

This is just another reason why the GOP were depicted on the cover of TIME a few weeks back as an elephant showing its ASS! 'Cause these people want to be crusaders in the "name" of Patriotism but at the EXPENSE of so-called American Ideals.

Buncha bitches! As Gza from The Wu-Tang Clan has often said, most notably in the Dave Chappelle skit "Wu-Tang Financial"

Have you ever listened to this group called ANTIBALAS, they're a New York City-based Afrobeat group, and they're always talking about WWIV -- and how CNN and Fox News chose not to cover this war, as it took place on the Dark Continent.

U.S. Wins Access to Reporter Phone Records

By ADAM LIPTAK
Published: August 2, 2006

A federal prosecutor may inspect the telephone records of two New York Times reporters in an effort to identify their confidential sources, a federal appeals court in New York ruled yesterday.

The 2-to-1 decision, from a court historically sympathetic to claims that journalists should be entitled to protect their sources, reversed a lower court and dealt a further setback to news organizations, which have lately been on a losing streak in the federal courts.

The dissenting judge said that the government had failed to demonstrate it truly needed the records and that efforts to obtain reporters’ phone records could alter the way news gathering was conducted.

The case arose from a Chicago grand jury’s investigation into who told the two reporters, Judith Miller and Philip Shenon, about actions the government was planning to take against two Islamic charities, Holy Land Foundation in Texas and Global Relief Foundation in Illinois. Though the government contended that calls from the reporters tipped off the charities to impending raids and asset seizures, the investigation appears to be focused on identifying the reporters’ sources. No testimony has been sought from the reporters, and there has been no indication that their actions are a subject of the investigation.

“No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters’ evidence,” Judge Ralph K. Winter Jr. wrote for majority, in an opinion joined by Judge Amalya Lyle Kearse. “We see no danger to a free press in so holding. Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism.”

George Freeman, vice president and assistant general counsel of The New York Times Company, disputed the majority’s characterization. Ms. Miller and Mr. Shenon, he said, “were conducting their journalistic duties by getting reaction to an ongoing story.”

Mr. Freeman added: “The move against the charities was not a surprise. No one has ever alleged that any federal agent was hindered or hurt or didn’t succeed.”

Mr. Freeman said The Times had not decided whether to pursue an appeal, either to the full appeals court, the United States Court of Appeals for the Second Circuit, or to the United States Supreme Court.

Ms. Miller, who retired from The Times last year, said she was very disappointed. “That this was 2-to-1 showed how close these issues are and the need for a federal shield law to protect journalists, their telephone numbers and hence their sources,” she said.

In an unrelated case last year, a federal appeals court in Washington ordered Ms. Miller and Matthew Cooper, then of Time magazine, to testify before a grand jury about conversations with their sources. They did so after receiving their sources’ permission, though not before Ms. Miller spent 85 days in jail.

Patrick J. Fitzgerald was the prosecutor in both cases, though he acted as United States attorney in Chicago in the charities case and as special counsel in the Washington case. His spokesman, Randall Samborn, declined to comment yesterday.

While yesterday’s decision represented a clear loss for The Times, the majority ruled for the paper on several subsidiary points and left open the possibility that it would protect reporters’ sources in cases involving other kinds of reporting.

The majority said, for instance, that the paper had been entitled to bring a civil suit in New York to challenge a grand jury subpoena in Chicago. It also said that whatever protections the reporters had against being called to testify about their sources also extended to their phone records. And it said that “courts can easily find appropriate means of protecting the journalists involved and their sources” where “government corruption or misconduct” is involved.

But the court rejected The Times’s central argument, saying that neither the United States Supreme Court’s 1972 decision in Branzburg v. Hayes, which considered the scope of the protections offered by the First Amendment, nor later developments in other areas of the law provided the paper with the ability to protect the phone records at issue in the case.

The majority ruled that the government could overcome any privilege that even a broad reading of the Branzburg decision allowed. It also declined to adopt a so-called common-law evidentiary privilege based on the shield laws almost all states have adopted, saying the government could similarly defeat any plausible version of such a privilege.

In seeming to acknowledge the existence of privilege, though one subject to a balancing test, the decision differed from the one issued by the federal appeals court in Washington last year that sent Ms. Miller to jail.

“There is a lot more to be heard from the courts before this issue is resolved one way or the other,” said Floyd Abrams, who represented The Times in both cases.

In his dissent, Judge Robert D. Sack said the government had not shown that the phone records contained important information that could not be obtained elsewhere. Judge Sack added a cautionary note about the consequences of unfettered access to reporters’ phone records.

“Reporters might find themselves,” he said, “as a matter of practical necessity, contacting sources the way I understand drug dealers to reach theirs — by use of clandestine cellphones and meeting in darkened doorways. Ordinary use of the telephone could become a threat to journalist and source alike. It is difficult to see in whose best interests such a regime would operate.”

Judge Winter was appointed by President Ronald Reagan, Judge Kearse by President Jimmy Carter and Judge Sack by President Bill Clinton.