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NYT loses in SCOTUS on reporters' privilege:
From BeldarBlog: The Supreme Court has refused to stay the Second Circuit's denial of a claim of reporter's privilege asserted by the New York Times. Here is the Second Circuit's description of the case:
After the attacks on the World Trade Center and the Pentagon on September 11, 2001, the federal government launched or intensified investigations into the funding of terrorist activities by organizations raising money in the United States. In the course of those investigations, the government developed a plan to freeze the assets and/or search the premises of two foundations. Two New York Times reporters [Philip Shenon and Judith Miller] learned of these plans, and, on the eve of each of the government's actions, called each foundation for comment on the upcoming government freeze and/or searches.

The government, believing that the reporters' calls endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches, began a grand jury investigation into the disclosure of its plans regarding the foundations. It sought the cooperation of the Times and its reporters, including access to the Times' phone records. Cooperation was refused, and the government threatened to obtain the phone records from third party providers of phone services. The Times then brought the present action seeking a declaratory judgment that phone records of its reporters in the hands of third party telephone providers are shielded from a grand jury subpoena by reporter's privileges protecting the identity of confidential sources arising out of both the common law and the First Amendment.
The Second Circuit rejected this claim. The Times asked Justice Ginsburg to stay the Second Circuit's mandate. She referred the NYT's request to the full Supreme Court, which refused that request, without any dissents.

(civil comments only please)
Steve:
The Second Circuit applied the same balancing test that was employed by the DC Circuit in connection with Judith Miller's contempt citation. While there's always a concern about chilling effects, the courts seem to be getting it right in these cases.

The facts of this case are, frankly, pretty outrageous: Reporters find out, somehow, that the Feds are about to execute a lawful raid on suspected terrorists, and they call the suspects in advance thus giving them a heads up. I'm generally on the side of the press in these disputes but this one seems to be right up there with publishing information on where our troops will be attacking tomorrow.

If the full story ever comes out about what went on here, it should be extremely interesting.
11.30.2006 10:49am
anonVCfan:
How'd the Times find out, if these searches and freezes are supposed to be secret?
11.30.2006 11:13am
Steve:
How'd the Times find out, if these searches and freezes are supposed to be secret?

That is exactly what the government is seeking to find out, and the exact issue this appeal is about.
11.30.2006 11:16am
John Burgess (mail) (www):
I think it may be a stretch to claim that the reporters' intent was to 'give a heads up'. It's more likely, IMO, that the reporters figured that if they had the story, then the subjects of the story surely had it.

I suspect, as well, that both had the same source who did not make it clear that this was secret information. Now, I certainly could be wrong, but Judith Miller is not one to actively thwart criminal investigations. Her getting the wrong end of the stick on a story, however, is plausible.
11.30.2006 11:19am
Al Maviva (mail) (www):
I don't know about any of you, but I don't want to live in an America where reporters don't have the freedom to compromise major counterterrorism investigations. Once we've lost the freedom to tamper with federal investigations of terrorist funding, we've lost everything... I blame John Ashcr... er, Roberto Gonz... I mean John Yoo! Yes, I blame John Yoo!
11.30.2006 11:22am
MnZ (mail):
It is almost certain that the NYT's source knew about the sensitivity of the information that he or she was providing. Given this, there seems to be two scenarios:

1) The NYT reporters knew about the sensitivity of the information, but irresponsibly published it anyway. In this case, the NYT and the source might be criminally liable.

2) The source did not tell the NYT about the sensitivity of the information from the NYT reporter. In this case, the source does not deserve protection.
11.30.2006 11:32am
Steve:
I think it may be a stretch to claim that the reporters' intent was to 'give a heads up'.

It probably would be, which is why I purposely didn't make that claim. However, you do have folks like Beldar in Prof. Barnett's link, who blithely conclude that the reporters were simply "hoping to make Bush look bad" while ignoring the fact that Judith Miller has long been a good friend of this Administration.

One important fact that distinguishes this episode from other high-profile leaks such as the disclosure of the warrantless eavesdropping program is that there is no substantial question, as far as I know, as to the legality of the government activity in question. Thus it's hard to imagine what the journalistic motive was in this case.

While it's possible the reporters assumed the targets knew they were about to be raided by the FBI, that seems like a remarkably daft assumption to make, so I truly have no idea.
11.30.2006 11:34am
MnZ (mail):
Oops:


2) The source did not tell the NYT about the sensitivity of the information from the NYT reporter. In this case, the source does not deserve protection.


I should add that I think that this is the most likely scenario. We should not forget that reporters like to protect sources for selfish reasons as well as noble reasons.
11.30.2006 11:39am
Salaryman (mail):

I think it may be a stretch to claim that the reporters' intent was to 'give a heads up'. It's more likely, IMO, that the reporters figured that if they had the story, then the subjects of the story surely had it.


JB, if you're responding to Steve, please note that it is (not "may be") a stretch to suggest that he stated that the reporters acted with the intent to "give [the suspected terrorists] a heads up." What he said was that the NYT called them (for whatever reason -- he doesn't speculate), which "thereby" gave the suspects a heads up.

As to your proffered excuse for the NYT -- i.e, that "the reporters figured that if they had the story, then the subjects of the story surely had it" -- I can't give it much credence for several reasons.

First, what (other than sheer speculation) do you base this on? I can't imagine you have any facts directly bearing on this. Moreover, even as an educated guess, your theory doesn't make much sense. Why on earth would anyone (including reporters) assume that, if they had classified info about a secret raid, the subjects of the raid must also have the same info? Had the NYT acquired the battle plans for D-Day prior to the invasion, would it have been reasonable for them to assume "well, if we've got the plans, Hitler must have them too, so we might as well call him and ask for a comment"?

Finally, what kind of moral calculus would excuse the Times' behavior even if there were some reason to suspect (short of certainty) that the subjects of the raid might already know. If there were any doubt they already had a "heads up", not calling at least preserves the possibility that the raid might succeed in aborting some terrorist act (or, in my other example, would preserve the possibility of a successful surprise invasion of Normandy).
11.30.2006 11:45am
Salaryman (mail):
Obviously, Steve can defend himself without any help from me.
11.30.2006 11:47am
Bill Dyer (mail) (www):
Prof. Barnett, thanks for the link.

Steve, my "blithe conclusion" on my own blog is indeed obviously speculation, and I expressed it as such:

"I'll bet this will make Bush look bad," the tipsters probably thought....


Although I likewise would speculate with statistical confidence that the reporters' sympathies do not include President Bush, I was actually referring not to the reporters, but their tipsters.

It's conceivable, but highly unlikely, that the reporters themselves are targets of the investigation. They don't owe the same legal duties to keep prosecutorial secrets that, for example, people who work for the Justice Department or the FBI do. I think everyone's working assumption is that the targets of the investigation are indeed Ms. Miller's and Mr. Shenon's source or sources, who are (or were) almost certainly government employees.

As for my speculation about their motives, I can also posit another one: It may be that they thought that the investigation into these "charities" was in fact part of a crusade (deliberate word choice) against Islam, and not just Islamic terrorists. I can imagine, for example, someone who might have had access to the details of the intended raid, without having also had access to the evidence (which was presumably used to get warrants, i.e., which presumably rose to the standard of probable cause) that whatever charitable activities these two organizations were involved in, they were also involved in raising or distributing funds for genuine terrorists. Someone working with only that information might view himself as a righteous whistle-blower. That's about as "innocent" a motivation as I can posit, other than a more overt political one. And it's possible that the tipsters had mixed motives, some of which some of us might find appealing, others less so.

But in any event, their motives still doesn't prevent what they did from being obstruction of justice. The "intent" that's relevant to that is whether they intended to reveal the secret information to anyone, not what they intended that their reporter-tippees do with that information. (And at least as to the first disclosure, the government employee-tipster might claim that he was speaking on deep background, he urged the reporters not to print anything disclosing the timing of the raid/freeze, etc. That's a little less persuasive as to the second disclosure. And I don't think it matters anyway.)
11.30.2006 12:31pm
Steve:
I simply can't imagine how the tipsters would have anticipated that the failure of this raid would make President Bush look bad. While it's fashionable in some quarters to believe that most of the world operates out of no deeper motivation than Bush-hatred, it strikes me as an exceedingly weak cop-out in this case.

One issue is that because few people would expect a reporter to tip off the target of an upcoming raid, the tipster would have had to disclose more than just the fact of the raid if disrupting the raid were their intent. (And surely there would be better ways to warn the target than by using NYT reporters as an involuntary intermediary.) For example, the source could have lied to the reporters by saying something like "these guys are really pissed that they're being targeted, you should call them and get their side of the story." But if such a blatant lie were told, it would be most charitable indeed for the NYT to go to these lengths to protect the tipster.

Perhaps a more realistic scenario is that the tipster was nothing more than a conventional source: someone with loose lips who has a good relationship with the reporters. Perhaps the tipster said something like "Just so you know, there's going to be a big raid on targets X and Y tomorrow, if you want to start writing your story now." In such a case, though, one would have to come up with a believable motivation for the reporters to contact the targets of the raid; could they really have been so stupid as to think this wouldn't mess anything up?

I'm straining to apply Occam's Razor here but there just doesn't seem to be a simple scenario that makes any sense in the real world.
11.30.2006 12:49pm
Houston Lawyer:
Let's see, here we have NYT reporters putting their own interests ahead of law enforcement and national security and claiming a constitutional right to do so. Nothing to see here, move along.
11.30.2006 1:43pm
Craig D.:
The Occam's scenario is to assume the reporters erred in rushing to meet a publishing deadline, in order to meet a "need" to have a contrary source/response to the governmental side. If the reporter didn't think the investigation was legitimate (whether because the source led them to believe it wasn't, or because of personal preconceptions), they might not think twice about whether contacting the charities for comment would tip them off.
11.30.2006 1:57pm
R Nebblesworth:
"Ockham's"
11.30.2006 3:06pm
Hoosier:
"O'Callaghan's"

(A bar I used to frequent in Chicago.)
11.30.2006 3:11pm
A. Zarkov (mail):
I don't know about any of you, but I don't want to live in an America where reporters don't have the freedom to compromise major counterterrorism investigations.

You have an easy solution to your problem. Leave America. Now suppose the FBI was planning a surprise raid on a KKK front organization, would you object to a reporter calling up the KKK and telling them about the raid?
11.30.2006 4:19pm
Guest3000:
11.30.2006 4:29pm
Richard Aubrey (mail):
That the whistleblower might think the raid was illegitimate is a possibility.
But that would mean the intent was to allow the charities to do....what, exactly? Wash the coffee cups? Check the dates on the fire extinguishers?
Shred perfectly legitimate information?
Seems the only reason to warn the folks would be to allow them do shred dirty stuff, which would mean the whistleblower knew it ws a righteous op and wanted to burn it. Knew the charities were dirty.
So the charitable intent toward supposedly innocent charities doesn't seem to be a logical possibility.
11.30.2006 4:49pm
logicnazi (mail) (www):
I think the issue of whether these particular sources need to be protected is a complicated one that I'm not sure how I feel about.

However, what bothered me in this case was the fact that the government seemed to be requesting information (phone records) that might allow them to identify other sources. Hopefully someone can tell me I'm wrong and some mechanism was set up to restrict what evidence the government receives to things relevant to their particular legal issue.

Also I'm not happy about the information being subpoenaed in the first place but that's a policy question not a matter of law.
11.30.2006 4:50pm
Bill Dyer (mail) (www):
In postulating a comparatively nonculpable motivation for the leaker(s) (i.e., the reporters' source(s)), I was assuming that the leaker's intent was not, in fact, to screw up the raid and asset freeze, but rather to focus press attention on the raid. Disclosing the raid in advance is the way the leaker grabs the reporter's attention and makes his topic much more sexy a/k/a newsworthy. By contrast this series seems less likely to grab press attention: "Hey, can I chat with you about that raid the FBI did yesterday?" "What raid was that?" "Well, the FBI broke the door down at the offices of this Islamic charity and --" "Oh, hmmm, yeah I think that was on our police blotter already, page C12 below the fold. Sorry, been there, done that. Got anything secret and juicy for me, though?"
11.30.2006 8:09pm
Richard Aubrey (mail):
Bill Dyer: What would be the motivation for the leaker to want to focus press attention on the raid?
Given the timing, it appears that the story, whatever it was, could not possibly have appeared before the raid. The journos got the leak before the raid and, to be charitable, were doing journo work before the raid, but the story would have been afterwards. No matter what, the story would be out ex post facto, although perhaps sooner than in other outlets who didn't get the leak.
11.30.2006 9:36pm
J'hn'1:
Well, lets us simplify the side issues and go after the heart of the matter.
If the NY Times had called a slumlord to ask his(her) opinion of an upcoming raid on a crackhouse he(she) owned, and was presumed to profit from, what would your opinion be then?
If you think that would be fine, then that is what your opinion would be now (whatever I think of such blatant support of rampant evil is immaterial)
If you do not think that the call to aforementioned slumlord is OK, it really doesn't matter if your objection is the safety of the raiding officers, the preservation of suprise to retain the probability of obtaining incriminating evidence, or the legal premise of obstruction of justice.
If you do not have the same answer to both situations, then it is fair to postulate that you consider some outside element more important than the lawful searches obtained through judicially ordered search warrants.
P.S. one of the premises of search warrants has always been the denial of opportunity to remove or destroy evidence either through suprise serving of the warrant or preventing alterations by custody until the warrant is served.
12.1.2006 2:16am
David M. Nieporent (www):
Bill's theory is a possiblity; people do leak things all the time to affect policy. But given that this policy seems pretty unobjectionable, even to the Times, isn't it more likely that this leak was motivated simply by a desire to cultivate a reporter? People leak just to feel important. They like people to listen to them -- everyone does -- and reporters are happy to oblige. They build a relationship for when they really do want to get a story out.
12.1.2006 2:17am
Craig D.:
The reporter doesn't need any intention to tip of the raid at all. The intent of the call is to get the reaction; that it tips them is coincidental.

If you believed the investigation wouldn't turn anything up anyway, you wouldn't delay writing your piece, because in your mind the delay wouldn't matter, except to you. And really, why inconvenience yourself?

Note that I'm not stating that this isn't a punishable and/or possibly illegal decision (not sure either way on that), just that it may not be a malicious one.
12.1.2006 1:00pm