Department of Justice asks high court not to block access to phone records

WASHINGTON -- The Justice Department on Saturday asked the Supreme Court to refrain from stepping into another First Amendment battle featuring federal prosecutor Patrick Fitzgerald and The New York Times.

The case involves a leak probe by Fitzgerald to track down the confidential sources of Times reporters Judith Miller and Philip Shenon for stories in 2001. Miller, who spent 85 days in jail in 2005 in connection with Fitzgerald's separate CIA leak probe in the Valerie Plame case, retired from the newspaper a year ago.

In the current case, the 2nd U.S. Circuit Court of Appeals has said prosecutors can see the journalists' phone records. Earlier, a federal judge had ruled in the newspaper's favor, saying the First Amendment supplied a qualified privilege to reporters to protect confidential sources.

On Friday, the newspaper asked Justice Ruth Bader Ginsburg to temporarily block the government from going through the records and said it was prepared to file a petition by Dec. 24 asking the court to take up the case.

In a filing requested by Ginsburg, the government cites a declaration by Fitzgerald on Nov. 13 that says the time for filing criminal charges will expire in the next three weeks.

'Irreparable harm'

Temporarily blocking the government from reviewing the phone records would cause "irreparable harm to a significant criminal investigation," the Justice Department told the Supreme Court in a 40-page filing.

The reporters' stories disclosed the government's plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation. The freezing of assets was in connection with a terrorism-funding probe.

Shenon and Miller called the two organizations for comment about the information on freezing assets, a move the government says tipped off the charities of planned government raids. The federal judge who ruled in the Times' favor said there is no evidence in the case even suggesting the reporters tipped off the charities about the raids or that the reporters even knew of the government's plans to raid either charity.

The Justice Department replied that "the fact that the reporters here relayed disclosures from a government source to targets of an imminent law enforcement action substantially weakens any claim of freedom of the press."

At issue are 11 days of phone records the government wants to review for the two reporters in 2001 -- Sept. 27-30, Dec. 1-3 and Dec. 10-13. In his declaration this month, Fitzgerald says the statute of limitations "on certain substantive offenses that the grand jury is investigating" will expire on Dec. 3 and Dec. 13 of this year. Those dates are five years to the day after the second and third set of phone records the prosecutor wants to review, pointing to the deadline for filing criminal charges.

In June 2005, the Supreme Court refused to take up a separate case involving the First Amendment in which Fitzgerald sought to compel Miller to reveal her sources in the leak of Plame's CIA identity.

That leak probe led to Miller's jailing before eventually agreeing to testify in Fitzgerald's investigation. Her testimony was critical in the indictment of Vice President Dick Cheney's former chief of staff, I. Lewis Libby.

The current leak probe is in Fitzgerald's capacity as Federal prosecutor in Chicago. The Libby prosecution is in Fitzgerald's role as a special counsel who was selected by a Justice Department superior to conduct that particular investigation.