NY Times Suffers Setback in Leak Case

The 2nd U.S. Circuit Court of Appeals reversed a lower court and ruled yesterday that federal prosecutor Patrick Fitzgerald was entitled to obtain telephone company records from New York Times reporters as part of an investigation into how two Islamic charities were tipped off to impending FBI raids.

The case entered the courts in 2004, when the Times learned that prosecutors from Chicago were seeking records of phone calls that Judith Miller and Philip Shenon had made during several weeks in 2001 — around the time they published stories on two Islamic charities with suspected ties to terrorists, the Holy Land Foundation and the Global Relief Foundation. Prosecutors, led by the U.S. Attorney for the Northern District of Illinois Patrick Fitzgerald 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 2-1 decision was written by Judge Ralph K. Winter Jr., joined by Judge Amalya Lyle Kearse. The majority opinion is here. Judge Robert D. Sack dissented. His opinion is here.