Baseball Crank
Covering the Front and Back Pages of the Newspaper
August 1, 2006
LAW: No License To Leak

The United States Court of Appeals for the Second Circuit has held, by a 2-1 vote, that the New York Times can not hide behind the First Amendment in resisting a grand jury subpoena aimed at the Times' 2001 disclosure of upcoming searches and asset freezes to the targets of those searches, two foundations that were raising money for terrorists. The court also held that even if there is a common law reporters' privilege, it is overcome by the "compelling governmental interest" in not alerting targets of legitimate law enforcement investigations to impending searches. The decision is a victory for Patrick Fitzgerald and the Bush DOJ over a newspaper that can't seem to resist the temptation to use leaks to hobble efforts to battle terrorism.

As the court described the Times' shameful conduct:

A federal grand jury in Chicago is investigating how two Times reporters obtained information about the government's imminent plans to freeze the assets and/or search the offices of Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF") on December 4 and 14, 2001, respectively, and why the reporters conveyed that information to HLF and GRF by seeking comment from them ahead of the search. Both entities were suspected of raising funds for terrorist activities. The government alleges that, "[i]n both cases, the investigations -- as well as the safety of FBI agents participating in the actions -- were compromised when representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller, respectively, who advised of imminent adverse action by the government." The government maintains that none of its agents were authorized to disclose information regarding plans to block assets or to search the premises of HLF or GRF prior to the execution of those actions. The unauthorized disclosures of such impending law enforcement actions by a government agent can constitute a violation of federal criminal law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of national defense information to persons not entitled to receive it), including the felony of obstruction of justice, 18 U.S.C. § 20 1503(a).

The Times has refused to cooperate in the investigation of Miller, Shenon and their sources. The court concluded that no privilege exists to bar investigation of their conduct:

The grand jury investigation here is focused on: (i) the unauthorized disclosures of imminent plans of federal law enforcement to seize assets and/or execute searches of two organizations under investigation for funding terrorists, followed by (ii) communications to these organizations that had the effect of alerting them to those plans, perhaps endangering federal agents and reducing the efficacy of the actions.

The grand jury thus has serious law enforcement concerns as the goal of its investigation. The government has a compelling interest in maintaining the secrecy of imminent asset freezes or searches lest the targets be informed and spirit away those assets or incriminating evidence. At stake in the present investigation, therefore, is not only the important principle of secrecy regarding imminent law enforcement actions but also a set of facts -- informing the targets of those impending actions -- that may constitute a serious obstruction of justice.

The court stressed the role the reporters played in this fiasco:

[T]he reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion. The communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches; that is to say, the reporters' actions are central to (and probably caused) the grand jury's investigation.

As a result, there is no basis for resisting the investigation - although the court does seem to hold out hope that the Times might be able to resist other investigations down the road:

We see no danger to a free press in so holding. 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.

(Footnote omitted). Dissenting opinion here.

Posted by Baseball Crank at 8:56 PM | Law 2006-08 | Comments (1) | TrackBack (0)

The dissenting opinion in this case is disgraceful. Branzburg clearly held that there was no privilege, but many judges simply ignored that in the intervening years by seizing on irrelevant language in Powell's superfluous concurrence.

One would have assumed that the Supreme Court's denial of cert in last year's Miller case, although of course not precedential, would have firmly put a stop to that.

Instead, Sack reverts to the same old misrepresentations about what Branzburg held, and then proceeds to seize on yet more irrelevant language, basing his entire argument on Tatel's non-controlling concurrence, to try once again to erect a privilege. He cites everything -- a bill introduced in Congress that wasn't enacted, DoJ guidelines, etc. -- except actual authority.

(And he tries to minimize what Miller allegedly did here by saying that she only told them about the forthcoming freeze, rather than the FBI raid. As if the point of a freeze isn't to stop someone before they can hide their assets. This case is even more egregious than the other prominent leak cases of recent days. Here, she wasn't exposing an arguably illegal government program; she was informing a suspect in advance of an investigation for no reason other than to get a scoop ahead of other papers. Miller could have waited until after the raid and then printed anything she wanted without harming the investigation in the slightest.)

Posted by: David Nieporent at August 2, 2006 10:31 AM
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