Judge protects reporters’ phone records

NEW YORK – The New York Times has a First Amendment right to protect the confidentiality of its sources by denying the government phone records in certain instances, a judge ruled Thursday.

Saying that secrecy in government appears to be on the rise, Judge Robert W. Sweet refused to toss out a First Amendment lawsuit the newspaper filed last year to stop the Department of Justice from getting records of phone calls between two veteran journalists and sources.

“The free press has long performed an essential role in ensuring against abuses of governmental power,” the judge said.

The calls between journalists Judith Miller and Philip Shenon and their sources were made after the Sept. 11 attacks. The Justice Department had advised the Times that it planned to obtain records of all telephone calls by Shenon and Miller for 20 days in the months immediately after the attacks.

In a 120-page ruling, the judge noted that the government can obtain such telephone records during a grand jury investigation when the information sought is highly material and relevant and cannot be obtained elsewhere. But he said those conditions had not been met.

“We respectfully disagree with Judge Sweet’s decision and are considering our appellate options,” U.S. Attorney Patrick Fitzgerald said in a statement.

Times lawyer George Freeman said the newspaper was particularly pleased Sweet “recognized the importance of the press’ relying on confidential sources to gather information of national importance.” He said reporters were “happy” with the ruling.

The ruling comes amid heightened tension between the government and reporters over confidential sources.

In a separate case, Miller is one of two reporters facing jail for refusing to divulge their sources about the 2003 leak of an undercover CIA officer’s name. The other is Matthew Cooper of Time magazine.

The government had told the Times it wanted phone records from Shenon for a probe into a leak by a government employee about a planned raid on the offices of the Global Relief Foundation, an Islamic charity accused of funding terrorism.

The lawsuit had said Miller’s phone records were being sought in connection with an investigation into an alleged leak about a government decision to freeze the assets of the Global Relief Foundation and another Islamic charity, the Holy Land Foundation.

In his ruling, Sweet wrote that the reporters were gathering information “of paramount national importance” – preparedness for the Sept. 11 attacks and the efforts to combat al-Qaida.

“The government has failed to demonstrate that the balance of the competing interests weighs in its favor,” he added.