The Times Loses On Another Judy Miller Case

The NY Times lost an appeal by a 2-1 decision in a case involving an investigation into some Islamic charities.  Here is the WaPo:

The New York Times may not withhold reporters' phone records from a federal grand jury investigating an alleged leak of a pending government raid on two Islamic charities suspected of supporting terrorism, a federal appeals court ruled yesterday.

A three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit ruled 2 to 1 that the Times has no First Amendment or other legal right to refuse a demand for the records from the grand jury in Chicago, which was empaneled by U.S. Attorney Patrick J. Fitzgerald.

Since this case involves both Patrick Fitzgerald and Judy Miller, both of whom are deeply involved with the Valerie Plame investigation, the Times coverage is especially intriguing and provokes this question - can they still say "Valerie Plame"?  Here we go with the Times treatment of the Fitzgerald/Miller backstory:

In an unrelated case last year, a federal appeals court in Washington ordered Ms. Miller and Matthew Cooper, then of Time magazine, to testify before a grand jury about conversations with their sources. They did so after receiving their sources’ permission, though not before Ms. Miller spent 85 days in jail.

Patrick J. Fitzgerald was the prosecutor in both cases, though he acted as United States attorney in Chicago in the charities case and as special counsel in the Washington case. His spokesman, Randall Samborn, declined to comment yesterday.

...

In seeming to acknowledge the existence of privilege, though one subject to a balancing test, the decision differed from the one issued by the federal appeals court in Washington last year that sent Ms. Miller to jail.

“There is a lot more to be heard from the courts before this issue is resolved one way or the other,” said Floyd Abrams, who represented The Times in both cases.

Why so coy at the Times?  The WaPo was not shy about using the Plame name.  If I had to guess, I would say that the Times would prefer that its readers forgot the whole Plame debacle, from the phony Joe Wilson op-ed (shouldn't the Times have mentioned it was written by a member of the Kerry campaign?) to their calls for a special prosecutor, to their calls for a special prosecutor who wouldn't actually subpoena reporters, to their vigorous defense of Judy Miller's right to protect Libby and Evil BushCo...  Ahhh!

Well - maybe we will find out that Nick Kristof was in on the Plame secret back in May of 2003; in TimesWorld, things can always get worse.

RIDDLE ME THIS:  Howard Bashman provides a link to the ruling, which provides the ammo to take on this vigorous defense of the Times by its assistant general counsel:

Mr. Freeman added: “The move against the charities was not a surprise. No one has ever alleged that any federal agent was hindered or hurt or didn’t succeed.”

Huh?  This is in the majority opinion:

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.”

And a bit later:

In a similar occurrence, on December 13, 2001, Shenon “contact[ed] GRF for the purposes of seeking comment on the government’s apparent intent to freeze its assets.” The following day, the government searched GRF offices. The government has since stated that “GRF reacted with alarm to the tip from [Shenon], and took certain action in advance of the FBI search.” It has claimed that “when federal agents entered the premises to conduct the search, the persons present at Global Relief Foundation were expecting them and already had a significant opportunity to remove items.”

I'll accept that no one is alleging that any FBI agents were actually hurt, although the government does allege their safety was compromised.  But this certainly seems to allege that the effectiveness of the search was hindered, if GRF had "a significant opportunity to remove items" - at a minimum, the FBI had to investigate whether or not GRF had actually availed itself of that opportunity, which may have been time-consuming.

Comments

[clarice]

It's a pleasure to live long anough to see people and institutions get what they deserve.
Along those lines Sgt Wuterich (Haditha) has just sued Murtha for libel and invasion of privacy. http://www.washingtonpost.com/wp-dyn/content/article/2006/08/01/AR2006080101345.html

[clarice]

C'mon TM you expected honest reporting from them?

[sam]

08/01/06 Centcom: SOLDIER DIES IN AL ANBAR

08/01/06 AP: Army Commander Investigated in Iraq Killing Spree

08/01/06 Reuters: Marine killed in Iraq was US senator's nephew

08/01/06 Ministry of Defence Identifies Fatality

08/01/06 AP: American soldier killed in Anbar province

08/01/06 AP: Iranian TV reporter killed in Baghdad

08/01/06 AP: Roadside bomb kills Guardsman from Pender

08/01/06 AP: Corruption in Iraq a 'pandemic'

08/01/06 AFP: Baghdad fuel shortage

08/01/06 Reuters: Some US Iraq war vets suffer mental deficits

08/01/06 CNN: Navy ends Haditha investigation

08/01/06 AFP: US military launches pre-trial hearing into Iraq detainees' deaths

08/01/06 Reuters: U.S. soldiers charged with murder in Iraq in court

08/01/06 DoD Identifies Marine Casualties Lance Cpl. Anthony E. Butterfield, 19, of Clovis, Calif.

08/01/06 Reuters: Two policemen killed by roadside bomb in Kirkuk

08/01/06 Reuters: Three bodies found in Baquba

08/01/06 Reuters: Gunmen wound five in assault on Iraqi Army checkpoint

08/01/06 Reuters: Gunmen kill student in Mosul

08/01/06 AP: 45 Reportedly Kidnapped in Western Iraq

08/01/06 keralanext: Slovakia plans to withdraw troops from Iraq

08/01/06 focus-fen: Iraqi Court Sentenced 26 People to Death over Terrorism

08/01/06 NPR: Shiite Militia Behind Baghdad Kidnapping

08/01/06 NPR: Iraqi Women Claim Abuse in Prison

08/01/06 Reuters: Oil pipeline in Iraq a shamble

08/01/06 AFP/Reuters: British soldier killed in Iraq mortar attack

08/01/06 Centcom: ONE SERVICE MEMBER KILLED, ONE WOUNDED IN IED ATTACK

08/01/06 AP: Bombings, Shootings Kill 52 in Iraq

08/01/06 AP: Civilian killed in drive-by shooting in Mosul

08/01/06 AP: Gunmen kill cleric in Baghdad

08/01/06 AP: Roadside misses target, kills civilian in eastern Baghdad

[larwyn]

This somewhat falls into "getting what they deserve"-

KOS/DU-dippers:

With all that anti Israel ranting on KOS/DU is Mel now their hero?

The quandries these people create for themselves are hilarious.

[Sara (The Squiggler)]

Very nice Sam, now would you do the same for the State of California or the District of Columbia? Or just for fun, maybe you could detail the number of babies aborted in the U.S. since we first went into Iraq?

Why is it so hard to understand that we are sitting on one of the most strageic pieces of real estate in the entire Middle East and beyond? The conflicts will be over when they are over and as far as I'm concerned, they won't be over as long as there is a radical Islamafascist alive.

[topsecretk9]

Green Eggs and Sam..

[larwyn]

sam,
Sarah wrote: "we are sitting on one of the most strageic pieces of real estate in the entire Middle East and beyond?"

Just want to know had they already ditched geography when you were in grade/H.S.?

Did you ever play Risk/Stratego?
They were probably banned by "peaceniks" - a shame, you'd learn a lot. Like what a jerk your "hero" Murtha is with redeployment to Japan!

[Semanticleo]

Ich bin ein Berliner

[Semanticleo]

That was just a test. I guess I'm back in the inner circle of trust. Oh joy, oh joy.

[Semanticleo]

And that's green eggs with spam. You know, pork shoulder and ham

[Semanticleo]

"The ruling, which was joined by Judge Amalya L. Kearse, threw out a 2005 decision by a U.S. district judge in New York, who had agreed with the Times that it had a right to protect confidential sources. Judge Robert D. Sack dissented."

Is there any doubt that some kind of playbook,
like a federal Shield Law, with guidelines for reporters, publishers, editors and courts is not long overdue?

[Lew Clark]

You mean the press doesn’t have the right to call up criminals and say "Scram you guys, the cops are on the way." I thought the "treason and criminal conspiracy immunity clause" of the First Amendment gave the press that right.

[larwyn]

SIX captured in Baalbeck
....MSNBC

FOX scroll caption is reporting
FIVE.

Either way it is great when you consider what a slap in face of Iran it was. That is an Iranian funded and Iranian/Syrian staffed facility in the iconic enclave of terrorism, the Bekaa Valley.

They went thru and checked ID's. I wonder if they wanted Iranians or didn't want them?

Imagine that Israel will keep us in suspense while they moniter all the communication traffic. Reports that they had low level Hezzies came from Lebanon/Hezzie sources.

FYI - Baal, a pagan god who required human CHILD sacrifice.
Read OneCosmos posting from yesterday regarding the abuse of children as normal in the pagan world and continued in the Islamic world vs the world of the Jews who
began the change when God stopped Abraham from sacrificing his son.

[Jane]

>The quandries these people create for themselves are hilarious.

Larwyn,

I've been thinking about that since the incident was reported. They used to hate Mel because of the Passion of Christ, now are they duty-bound to love him for his anti-semitism? What is a moonbat to do?

[Bob]

Tom must have left the screen door open... look at all the pests that wandered in!

Now won't it be nice if the IDF find all those Iraqi WMD's sitting there in the Bekaa Valley!

American Thinker 07/21/06

"A fifth, and crucial goal, is to gain control for some time over the Bekaa Valley, and find out once and for all which of Saddam’s WMD’s may be stored there."

[Daddy]

Off topic, but;
My job has kept me in Asia for the last 2 weeks, and by timing, etcetera, I have been limited in news input strictly to 3 sources: CNN, BBC and an infrequent International Herald Tribune. I could post this same note almost every trip, but it bears repeating: The incessant drumbeat of negativity, of defeatism, of caustic criticism, of 'superior than thou' sarcasm and snide asides by the annointed talking heads of those networks physically makes me ill. If anyone has the slightest question about why America seems to be held in low regard in the rest of the world, look no further than the worldwide megaphones of CNN or the BBC. Honestly, to be trapped in a dozen cruddy hotel rooms around the globe and to be prisoner of Riz Kahn or Paula Zahn or Richard Quests or whomever, is a torture I almost wouldn't wish on my worst enemy (if I had one, which I don't). Thank God TM for you and the gang posting out here. It is unfortunate that I am hardly ever able to post knowledgebly on any of the Plameaholic/legalistic jungles that your machete wielding Clarice's and TS9's and Squig's and Boris's and guys slug through day after day, but after 2 weeks in the CNN desert, JOM is an oasis of mental luxury. May all your New York sports team go to hell in a handbasket, and may there please be 1 more beer in this cruddy hotels mini-bar. Che' Che' friggin' nee.

[Jane]

I tell you, above all else this is a PR war!

[larwyn]

All-nighter - lots of hoping for a retesting of the definition
of insanity in NYT & WaPo:

Nancy Soderberg, Clintonista and Maddy soulmate proves
she is an airhead. Remember her appearance with Jon Stewart amid celebration of all the purple fingers: "We still have Iran and
North Korea"..her joke/her wish. Funny Nancy writes one
to give all some chuckles.
Her title:
"Peacekeepers Are Not Peacemakers"
Author bio at column:

Nancy Soderberg, the author of “The Superpower Myth,” was, from 1997 to 2001, a United States ambassador to the United Nations, where she negotiated the Security Council’s endorsement of Israel’s withdrawal from Lebanon..
then read this:
Second, no cease-fire will hold unless the root cause of the current crisis is addressed: the continuing presence of armed Hezbollah militia in southern Lebanon. Any solution will require a new security arrangement that not only disarms the Hezbollah militia but also mandates the deployment of Lebanese forces to the south, as well as a return of prisoners on both sides. Without such a deal, it would be folly to send in peacekeepers.
Guess they shouldn't have reminded us that she endorsed UNIFiL.
And naturally this is her conclusion:

Success will take more sophisticated diplomacy than we have yet seen from her or from President Bush. In the meantime, Lebanese and Israeli civilians, along with blue-helmeted peacekeepers, are paying the price for the West having ignored the rising threat of Hezbollah over the last six years.
In other words send in Maddy's team. Told you it would
make you laugh. Funny gal that Nancy.http://www.nytimes.com/2006/08/02/opinion/02soderberg.html?th&emc=th

In WaPo from Ignatius:
...Yet in the long lens of history, the importance of the 1973 war is that it opened the door to peace. The Arabs, humiliated by earlier wars with Israel, could now claim a measure of dignity because of Anwar Sadat's bold attack across the canal. The Israelis learned that their Arab adversaries wouldn't run from battle as they had in the 1967 war. That gave them a stake in making peace, too.

After the war ended, Egypt and Syria joined in active diplomacy, masterfully orchestrated by Kissinger, who managed to create enough distance between the United States and Israel to allow some negotiating room. Sadat felt confident enough as the "hero of the crossing" to make his famous trip to Jerusalem. Even the terrorist group of the day, the Palestine Liberation Organization, was drawn into a web of secret liaison with the CIA.

That all worked out so well!

Title of the drivel is"Mideast Lessons From 1973"
By David Ignatius

This one is sensible and not nuanced, reason the intellectuals and dips won't understand it.
"In its war on terror, the U.S. would never accept the limits being pushed on Israel...Gaffney,WSJ

Bob
Saddam's WMD & Bekaa Valley
Wondered if we sent Israel those special thermal bombs that destroy chem bio stockpiles vs release it.
But if wind is headed east - release may not be bad idea.
"compassion fatigue" big time!

[lurker]

I read an article written back in 2004 that those WMDS were supposedly moved to Sudan.

Today's Iraq activities is no different from post WWII and Civil War activities. It took time for the insurgents after WWII and Civil War to "get it all out of their system", then they give up. It also took Attaturk a long time to get his Turks westernized.

Don't worry, Spamming Sam, Iraq and USA will win this post-Iraqi war.

[lurker]

Good for this ruling! Glad to see NYT's losing this one, especially after its declining stock price.

Let's see what those phone records reveal!

Will it put NYT into more trouble? We'll see!

[lurker]

Larwyn, what's puzzling is the effort for an immediate ceasefire (unconditional or otherwise) is that the Hezzies will NEVER honor a ceasefire. And most know it. Any ceasefire will not even last a day even starting with Day 1 of this war.

So why push it? Because the politicians are afraid of the Islam backlash at home? Or that they wouldn't get the votes in the next election?

And if most know that a ceasefire will fail (and hoping Israel wins this war), why are they rushed into it?

[Other Tom]

"Is there any doubt that some kind of playbook, like a federal Shield Law, with guidelines for reporters, publishers, editors and courts is not long overdue?"

Doubt that it's not long overdue? No, I don't doubt that at all. In fact I am quite certain that it's not long overdue. I rather like things as they are: witnesses to crimes must testify as to what they saw and heard. What on earth makes a "reporter" any different? In fact, what on earth makes a "reporter?

[rhodeymark]

Any ceasefire will not even last a day even starting with Day 1 of this war

I'm not so sure that Hezbollah couldn't manipulate a cease fire. Stop the active aggression while it reestablishes the southern strongholds. Let's not forget that the bunkers were constructed and stockpiles amassed under the watchful eyes of UNIFIL. That the LSM would predictably coo about how reasonable they are while this occurred would be a strategic victory. Gotta get back into rocket range, you know.

[Poesa]

Everybody Chill' column really makes clear why she went to 'Vanity Fair' and the spree that happened the next day.

Larry said she worked in Iran as fast as he could before the desk was set up at the State Department. He probaby wanted similar results that Plame got out of Iraq in 'Vanity Fair.'

[Semanticleo]

"what on earth makes a "reporter?"

Uh, you and I and everyone here. Get the picture?

[lurker]

Heh...I don't consider myself a "commentator" nor a "reporter". Just an average poster!

But a reporter should be subjected to the same rules as Average Joe, just like you and me.

So you got tired of Protein Wisdom? Or he pushed you out? And TM allowed you back in?

[clarice]

I can think of no other explanation for the consistently inane and historically preposterous stuff that comes out of the mouths of people like Soderberg than that they are terminally stupid.

[MayBee]

If anyone has the slightest question about why America seems to be held in low regard in the rest of the world, look no further than the worldwide megaphones of CNN or the BBC.

Preach it, Daddy. I'm the choir.
Although I like Richard Quest. He covered the US elections more evenly than many US outlets.
Have you gotten a chance to watch CNN's weekly shows on Africa and the Middle East? I swear they are produced by their tourism boards, as if there is no hard news to report from those areas. Oh and China? Fast growing! Fun!

[lurker]

Heh...I don't consider myself a "commentator" nor a "reporter". Just an average poster!

But a reporter should be subjected to the same rules as Average Joe, just like you and me.

So you got tired of Protein Wisdom? Or he pushed you out? And TM allowed you back in?

[Pete]

While I am all for newspapers to reveal the affiliations of those who publish op-eds, there is nothing "phony" about Wilson's NYT op-ed. (Incidentally to me, the fact that Wilson campaigned for Kerry is about as significant as the fact that for example Rice campaigned for Bush).

Before we forget, it was Wilson's op-ed which caused the Administration to finally concede that the "sixteen words" should not have been in Bush's speech.

It is the actions of the Bush administration which deserve far more scrutiny than

And

[MayBee]

are paying the price for the West having ignored the rising threat of Hezbollah over the last six years.

Ahh...the magic last six years. As the Anchoress has labled the years before that "our 8 year vacation from history". Something happened before the "last six years", and we aren't able to say what....but we're sure it was spectacular. We are certain Hizballah either didn't exist then, or it was masterfully handled.

[Semanticleo]

"So you got tired of Protein Wisdom? Or he pushed you out? And TM allowed you back in?"

As per usual, lurch, you are right about 1/3
of the time(even with True/False tests most
guessers are right 50%)and even the one you guessed right (Maguire let me in) may have been an unintended consequence.

[lurker]

"While I am all for newspapers to reveal the affiliations of those who publish op-eds, there is nothing "phony" about Wilson's NYT op-ed. (Incidentally to me, the fact that Wilson campaigned for Kerry is about as significant as the fact that for example Rice campaigned for Bush).

Before we forget, it was Wilson's op-ed which caused the Administration to finally concede that the "sixteen words" should not have been in Bush's speech."

Sorry, you lose again.

There's heck of lotta phony in Wilson's Op-Ed.

There has been PROOF that WH should NEVER have conceded to those 16 words. They were right from the beginning.

It's Joe Wilson that already got scrutinized with his own lawsuit adding the final nail to the PlameGate coffin.

[lurker]

Heh, Cleown, I'm just an Average Joe poster! No biggie.

[Other Tom]

"Uh, you and I and everyone here. Get the picture?"

Well, I'm not sure I do--at least not whatever picture it is you are struggling to create. Are you and I and everyone here reporters? So we can't be compelled to testify? Or is it that you and I and everyone decide who gets to count as a "reporter?" If so, we also get to decide what privileges, if any, such reporters enjoy. We have decided that, in the federal courts, they do not enjoy a privilege not to testify in criminal matters in which they are percipient witnesses. Next case.

[Other Tom]

"...there is nothing "phony" about Wilson's NYT op-ed."

In fact, there is a great deal about it that is phony, and the phoniness has been set forth in detail in the bipartisan report of the Senate Select Committee on Intelligence. As to the "sixteen words," the person who made the "concession" was George Tenet, not George Bush. The fact is that the sixteen words were true when they were uttered, and they are true to this day. Not only does the SSCI report establish this, so does the Butler report in Great Britain. And, in fact, so did Joe Wilson's oral report to the CIA when he returned from his spouse-arranged junket.

[MayBee]

(Incidentally to me, the fact that Wilson campaigned for Kerry is about as significant as the fact that for example Rice campaigned for Bush).

There's nothing wrong with Wilson campaigning for Kerry. It's the NYTs offering up his OpEd without full disclosure that's the problem. I don't think anyone ever tried to pretend Rice was a neutral party, as they did with Wilson (he's voted for Republicans and Democrats! remember that defense?)

[Semanticleo]

The only struggle is assuming there will be some life left in sclerotic thinking.

The point of my response is there are no
standards for 'reporter' and I am not suggesting they should be immune from the
legal requirements borne by any other member of society. What I AM suggesting, is that
there is much confusion over the issue of
1st Amendment protections as it relates to
the access to sources. A 'Shield Law' would
create some recognizable boundries so that
courts and the Press would have some semblance of the rules of engagement.

[noah]

Wow...Cleo is not drunk yet. I am sure that a lot of people, left and right, would like such a law with clearly defined exceptions so that long legal battles would not ensue every time the press crosses the line. But alas the devil is in the details.

[Jane]

OT: Thomas Joscelyn has an interesting piece up about Scary Larry and Michael Scheuer. I followed the link to Larry's response. He really spews the same old s--t no matter who he talks to.

http://thomasjoscelyn.blogspot.com/2006/07/larry-johnson-v-michael-scheuer.html

[Other Tom]

"A 'Shield Law' would create some recognizable boundries so that
courts and the Press would have some semblance of the rules of engagement."

Let's see your first draft, Cleo. Start with "definitions," viz. "the Press" and "reporter."

In the meantime, federal law provides that, when classified information is unlawfully disclosed to a person, that person can be compelled to testify as to who made the unlawful disclosure. The Plame case is no different from the Tice/NSA case or the Islamic charities case, except that in the former we now know that no criminal act occurred. As to the latter two, we shall see. In any event, it is reassuring to see justice administered in a principled and even-handed way, which I'm sure the New York Times and Cleo would approve.

[Semanticleo]

"it is reassuring to see justice administered in a principled and even-handed way, which I'm sure the New York Times and Cleo would approve."

Indeed. But your reference to 'classified'
too many times has a rather broad, cya odor
when the lunch menu is included. That is part of the problem.

And, in spite of the animus many show toward
the Press, it is not hard to imagine how the
political landscape would look without the
1st amendment; no matter how badly individuals might perform their professional duty.

[Sue]

Jane,

Thanks. I thoroughly enjoyed the take-down of Scary by Mr. Jocelyn. ::grin::

[Sue]

(Incidentally to me, the fact that Wilson campaigned for Kerry is about as significant as the fact that for example Rice campaigned for Bush).

That is refreshing. That means you didn't care that allegedly only republicans were funding the Swifties. The truth is all that matters. Very refreshing indeed.

[Other Tom]

"But your reference to 'classified'
too many times..." I count one time in my last three posts. Once is too many?

We're still awaiting that first draft of your shield law.

[Pete]

The fact of the matter is that the Bush administration conceded that the sixteen words should not have been there. They are not so stupid to have done that over a "phony" article published in a "liberal rag". The fact that they conceded then speaks volume about the matter. And the concession was made not just by Tenet, but it was also made by Bush's spokesperson and it was made by Condi Rice.

[Semanticleo]

"But your reference to 'classified'
too many times..." I count one time in my last three posts. Once is too many?

my error.

should be 'classified', too many times.....

As regards the 'devils details' and your request (where?) I begin drafting my version;

Our dear Leader has no problem with details,
(Iraq, Social Security) perhaps He should undertake the task.

[Sue]

For some reason, when someone puts the phrase "dear Leader" in their post, I crack up laughing. It sounds so much like a Get Smart episode. ::grin::

[noah]

Oops spoke too soon. Cleo...drunk, deranged or what?

[Gabriel Sutherland]

representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller

Wow. Now there's a devestating allegation. Has Miller, Shenon, or the Times denied this claim?

Fitzgerald's investigation was to discover which federal agent(s) leaked this information. It appears that Miller, Shenon, and the Times are on track to be compelled to reveal their sources to Fitzgerald, again.
/end

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

There is no definition of "the press" in the Constitution. It doesn't compartmentalize any group, nor does it paint with a broad brush to expand one. Shield laws are designed to define a press, thus restricting first amendment rights through the compartmentalization of a group of people. Building a wall around a select group of people will not expand freedom, but in fact restrict it by cutting out citizens through their exclusion from "the press".