NEW YORK A federal prosecutor has argued that the government should be allowed to examine the telephone records of two reporters for The New York Times to identify their sources for several articles about Islamic charities.
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"We want to find out who leaked national security information," the prosecutor, Patrick Fitzgerald, said on Wednesday in a federal court hearing in New York.
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Floyd Abrams, a lawyer for the reporters, Judith Miller and Philip Shenon, said the records Fitzgerald was seeking contained information about "dozens and dozens" of confidential sources whom the reporters consulted in the fall of 2001 for articles about the charities and many other topics. He argued that allowing prosecutors to inspect the records would ultimately affect the flow of information to the public.
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"If we start down the road of permitting a federal prosecutor to obtain secret information without which journalists cannot function," Abrams said, "the world will change for the worse, because confidential sources will no longer be available."
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The Times sued the government in September, asking the court to stop Fitzgerald from seeking its records from telephone companies and from reviewing any phone records the government already has. The judge who heard the argument Wednesday, Robert Sweet of the U.S. District Court in Manhattan, said that the case raised "a very delicate and significant issue."
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Miller is also involved in an unrelated case involving confidential sources. A federal judge in Washington has ordered her jailed for refusing to name her sources to a grand jury investigating the disclosure of the identity of a covert CIA officer, Valerie Plame. Miller, who did not write about the Plame matter, is free pending the ruling of the federal appeals court in Washington.
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Fitzgerald is the prosecutor in both cases. In the Washington case, he was appointed special counsel after Attorney General John Ashcroft recused himself.
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In the case argued on Wednesday, Fitzgerald, acting in his usual capacity, as the U.S. attorney, or chief federal prosecutor in Chicago, said he was investigating the disclosure in 2001 of impending government actions against two Islamic charities, Holy Land Foundation of Texas and Global Relief Foundation in Illinois. Before the assets of the charities were blocked and their offices raided, Fitzgerald said, a Times reporter called each charity for comment, alerting them to the coming actions.
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Whoever told the reporters about the government's plans might have violated the law, Fitzgerald said. He said the reporters were not themselves targets of his investigation. In court papers, the reporters disputed the assertion that they had tipped off the charities to the raids. They said the charities had long been subjects of scrutiny and knew the government planned to act against them.
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Fitzgerald argued Wednesday that his investigation had been sensitive to First Amendment considerations and had moved methodically and incrementally.
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Abrams said there was no practical difference between requiring reporters to name their sources and inspecting their phone records.
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"These telephone records," he said, "are the functional equivalent in every way of putting Judy Miller on the stand and asking her on penalty of contempt of court and jail about every confidential source she talked to in a three-week period after 9/11."
