Friday, February 25, 2005

NEW YORK TIMES CO. V. ALBERTO GONZALES

Aid and comfort?


THE NEW YORK TIMES CO. V. ALBERTO GONZALES

THE NEW YORK TIMES CO. V. ALBERTO GONZALES
(February 24, 2005)



A federal judge grants declaratory relief sought by New York Times reporters Judith Miller and Philip Shenon to protect their confidential sources, by refusing to give the Justice Department access to the journalists' telephone records, "without any showing on the part of the government that the sought records are necessary, relevant, material and unavailable from other sources, has the potential to significantly affect the reporting of news based upon information provided by confidential sources." The court concluded that that the "balance requires maintaining the secrecy of the [reporters'] confidential sources."

The government, through a grand jury proceeding, seeks to
investigate, and perhaps to prosecute, an alleged breach of a
government secret, namely, the timing of the seizure of assets and
Federal Bureau of Investigation ("FBI") searches of the offices of two
Islamic charities in the fall of 2001.

Page 13

On December 3, 2001, consistent with
The Times’ policy of seeking comment from the subjects of its articles,
Miller telephoned HLF (Holy Land Foundation) and spoke with HLF
representatives about the information that had been disclosed to
her by one or more confidential sources. According to Miller, she
sought comment from HLF at this time only "about the government’s
intent to block HLF’s assets," and she did not intend to tip-off HLF
about the impending FBI search of HLF’s offices.
Patrick J.
Fitzgerald, U.S. Attorney for the Northern District of Illinois
("Fitzgerald"), representing the government, has stated that on the
night of December 3, 2001, Miller disclosed to HLF personnel that "government action was imminent"
(Affirmation of Patrick J. Fitzgerald, dated Nov. 19, 2004, and that
the HLF personnel were surprised by the information conveyed by Miller.
According to Miller, "[t]hat government action was taken against [HLF]
did not come as a surprise to even a casual observer."