updated 11/27/2006 6:33:13 PM ET 2006-11-27T23:33:13

The Supreme Court ruled against The New York Times on Monday, refusing to block the government from reviewing telephone records of two Times reporters in a leak investigation concerning a terrorism-funding probe.

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The one-sentence order came in a First Amendment battle that involves stories written in 2001 by Times reporters Judith Miller and Philip Shenon. The stories revealed the government’s plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

U.S. Attorney Patrick Fitzgerald is trying to track down the reporters’ confidential sources for the stories. Fitzgerald’s spokesman, Randall Samborn, declined to comment on the Supreme Court’s order.

The case marks the second refusal by the court in as many years to sort out a clash between the federal government and the Times over press freedom.

In June 2005, the Supreme Court refused to take up the Times’ request to hear an appeal in the CIA leak investigation involving the outing of Valerie Plame. In that case, Miller, who retired from the Times a year ago, spent 85 days in jail before agreeing to testify to a federal grand jury.

Her testimony was crucial in the indictment of former vice presidential chief of staff I. Lewis "Scooter" Libby. Fitzgerald, in a role as a special counsel, conducted that leak investigation as well.

Reporters fear growing problem of protecting sources
Monday’s rejection “is just further indication that we’re getting absolutely nowhere with the court when it comes to protecting confidential sources,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

The case points out a growing problem of reporters trying to protect their sources in the information age, press advocates say. Rather than threatening reporters with jail if they don’t testify, the government can go through the back door to hunt down confidential sources by amassing phone records and credit card receipts.

“It’s impossible to operate on cash only and face-to-face and do your job as journalists,” said University of Minnesota media ethics and law professor Jane Kirtley.

Dalglish said that protection of phone record confidentiality is among the issues that should be addressed in federal shield law legislation she and other press advocates are urging Congress to consider.

The current dispute stems from Shenon and Miller calling the two charities for comment after learning of the planned freeze on their assets from confidential sources.

The Justice Department says the reporters’ calls tipped off the charities of upcoming government raids. A federal judge who ruled in the Times’ favor said there is no evidence in the case even suggesting that the reporters tipped off the charities about the raids or that the reporters even knew the government would raid either charity.

In August, the 2nd U.S. Circuit Court of Appeals ruled 2-1 that federal prosecutors could see the two reporters’ phone records.

The government says the fact that the reporters 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 plans to review from 2001 — for the dates Sept. 27-30, Dec. 1-3 and Dec. 10-13. In a declaration this month, Fitzgerald said 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.

The current leak probe is in Fitzgerald’s capacity as U.S. attorney 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 investigation.

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