With the major media already under fire for compromising the war on radical Islamic terrorism, a recent court decision suggests that the media may have something else to hide in connection with their conduct in national security and terrorism-related cases. The allegation being pursued in the courts is that reporters for the New York Times tipped off two controversial Muslim groups to the fact that federal authorities were going to raid their offices in an effort to find evidence implicating the organizations in alleged terrorist activity.
There were a few articles on the decision, including in the New York Times and the Washington Post. But for the most part, it was a one-day story, and there was a failure to acknowledge the real significance of the decision. The most likely reason for the minimal coverage is that the case raises serious questions about the judgment of the national media in covering terrorism. If the facts suggest media misconduct, the case could prove to be a fatal blow to Big Media efforts to establish a federal media shield law to protect anonymous “sources.”
The two-to-one decision on August 1, overturning a previous decision that favored the Times, lays out the government’s case. According to the U.S. Court of Appeals for the Second Circuit, after 9/11, the federal government became much more interested in investigating “the funding of terrorist activities by organizations raising money in the United States.” In the course of those investigations, the court said that the government developed a plan to freeze the assets and/or search the premises of two foundations, the Holy Land Foundation and the Global Relief Foundation.
Two New York Times reporters, Judith Miller and Philip Shenon, learned of these plans, and called each group for comment on the threatened government actions.
Believing those calls “endangered the agents executing the searches and alerted the targets, allowing them to take steps mitigating the effect of the freeze and searches,” federal prosecutor Patrick Fitzgerald convened a grand jury investigation into the disclosure of its plans regarding the foundations. He wanted to know who in the government had leaked the information.
The Islamic charities deny any wrongdoing. But one of them, The Global Relief Foundation, was reported to be under suspicion of assisting al Qaeda. The other, the Holy Land Foundation, was directly accused by then-Treasury Secretary Paul O’Neill of providing financial support to terrorists.
Summarizing new developments in the case, the New York Sun said that “The case entered the courts in 2004, when the Times learned that prosecutors from Chicago were seeking records of phone calls that Ms. Miller and Mr. Shenon had made during several weeks in 2001?around the time they published stories on two Islamic charities with suspected ties to terrorists?Prosecutors?have claimed that the two reporters had tipped off the groups about impending raids and of the government’s decision to freeze their assets. The government has said the phone records are relevant to a grand jury investigation into who inside the government had originally tipped off the reporters. The Times has maintained that the reporters did nothing beyond routine reporting.”
According to an article on the website of the Reporters Committee for Freedom of the Press, an attorney for the Global Relief Foundation (GRF), Roger Simmons, admits that Shenon called the charity on Dec. 13, 2001, seeking comment on the seizures that were going to take place the following day. However, Simmons denied that GRF destroyed any documents and notified the FBI agents that GRF had learned of the raid in advance.
Fitzgerald tried through various means to get the names of the government sources who leaked the information before he went to the Justice Department and then the courts to gain access to the reporters’ phone records.
Hiding behind the First Amendment, the Times has consistently argued that the government should not be allowed to examine the reporters’ phone records because confidential sources would be revealed. But that argument was flatly rejected by Judge Ralph Winter, who wrote for the majority that there was “no danger to a free press” in allowing the government access to the records. He said, “Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism. Where such reporting involves the uncovering of government corruption or misconduct in the use of investigative powers, courts can easily find appropriate means of protecting the journalists involved and their sources.”
The ruling that was overturned by this decision said that the First Amendment did provide a qualified privilege to maintain the confidentiality of the reporters’ phone records. Winter and the majority on the Court of Appeals have basically found that there is no such privilege. The case could now be headed for the Supreme Court, which in the past has failed to find any constitutional right by the press to protect sources.
Essentially, Judge Winter has put forward a very reasonable argument that there should be no shield law, and that there are court precedents, state-court shield laws, and federal guidelines that govern such a situation. In this case, the media argument for maintaining confidential sources runs directly contrary to the clear and convincing need for the government to know who leaked the information to the Times, thus possibly compromising a sensitive law enforcement action.
As we have argued in the past, and as this case makes perfectly clear, there should be no sweeping federal protection for reporters and their sources. The case for a federal shield law, when the media have become active players in national security and terrorism matters, does not hold up. This case helps demonstrate why.
Miller has insisted that she was just pursuing a story, and that federal authorities don’t understand how journalism works. Perhaps she doesn’t truly understand how law enforcement works, and that that the need to protect the American people against terrorist attacks takes precedence over her perceived “rights” as a journalist.