- The Washington Times - Thursday, February 24, 2005

NEW YORK (AP) — The New York Times has a First Amendment right to protect the confidentiality of its sources by denying the government phone records in certain instances, a judge ruled yesterday.

Saying that secrecy in government appears to be on the rise, Judge Robert W. Sweet refused to toss out a First Amendment lawsuit the newspaper filed last year to stop the Justice Department from obtaining records of phone calls between two veteran journalists and sources.

“The free press has long performed an essential role in ensuring against abuses of governmental power,” the judge said.

The calls between journalists Judith Miller and Philip Shenon and their sources were made after the September 11, 2001, attacks. The Justice Department had told the Times that it planned to obtain records of all telephone calls by Mr. Shenon and Miss Miller for 20 days in the months immediately following the attacks.

In a 120-page ruling, the judge noted that the government can obtain such telephone records during a grand-jury investigation when the information sought is highly material and relevant and cannot be obtained elsewhere. But, he said, those conditions had not been met in this instance.

“We respectfully disagree with Judge Sweet’s decision and are considering our appellate options,” U.S. Attorney Patrick J. Fitzgerald said.

Times attorney George Freeman said the newspaper was particularly pleased that Judge Sweet “recognized the importance of the press’ relying on confidential sources to gather information of national importance.” He said reporters were “happy” with the ruling.

The ruling comes amid heightened tension between the government and reporters over confidential sources.

In a separate case, Miss Miller is one of two reporters facing jail time for refusing to divulge the identities of sources who leaked the name of an undercover CIA officer in 2003. The other is Matthew Cooper of Time magazine.

The government had told the Times that it wanted phone records from Mr. Shenon for a probe into a leak by a government employee about a planned raid on the offices of the Global Relief Foundation, an Islamic charity accused of funding terrorism.

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