By DAVID B. CARUSO Federal prosecutors investigating a leak about a terrorism funding probe can see the phone records of two New York Times reporters, a federal appeals court ruled Tuesday.
A panel of the 2nd U.S. Circuit Court of Appeals overturned on a 2-1 vote a lower court's ruling that the records were off limits unless prosecutors could show they had exhausted all other means of finding out who spoke to the newspaper.
The judges said a grand jury investigation of the disclosures wasn't likely to go anywhere without help from the reporters or access to their records.
"There is simply no substitute for the evidence they have," Judge Ralph K. Winter wrote.
The newspaper was considering an appeal, its lawyers said.
The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.
Prosecutors claimed the reporters' phone calls to the charities seeking comment had tipped the organizations off about the government investigation.
U.S. Attorney Patrick Fitzgerald asked the Times for information about the source of the reports in 2002, then threatened to subpoena phone company billing records in 2004.
The newspaper sued to block any such effort, saying prosecutors might use the records to fish for information about the Times' sources for a long list of stories.
In February 2005, the newspaper appeared to achieve a victory when U.S. District Judge Robert Sweet ruled that the government had failed to prove that it had exhausted all other methods.
Tuesday's decision to overturn the lower court ruling prompted a dissent by Judge Robert D. Sack, who said prosecutors had made little effort to assure the court that the information was unavailable from any other source.
He noted, however, that the majority opinion contained at least two victories for journalists: It held that reporters do have a right, in some circumstances, to protect the identities of people they speak to, and government investigators may not simply bypass an uncooperative reporter by seizing records from a phone company.
"Without such protection," Sack wrote, "prosecutors, limited only by their own self-restraint, could obtain records that identify journalists' confidential sources in gross and virtually at will.
"Reporters might find themselves, as a matter of practical necessity, contacting sources the way I understand drug dealers reach theirs - by use of clandestine cell phones and meetings in darkened doorways."
Times attorney Floyd Abrams said the closeness of the vote illustrates a disagreement within the courts about whether reporters have a limited privilege to protect their sources.
"Not until the U.S. Supreme Court takes one of these cases and decides it will we really know where we are," Abrams said.
It is unclear whether prosecutors already have the Times' phone records. Fitzgerald's office has refused to say whether it received the records before the Times sued.
A spokesman for Fitzgerald declined to comment.
Fitzgerald had Miller jailed last year for refusing to tell a grand jury about conversations she had with the vice president's chief of staff regarding CIA operative Valerie Plame.
Copyright 2006 Associated Press.
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