The Supreme Court has decided not to get involved in a case where a federal prosecutor is seeking the phone records of two New York Times reporters in connection with a leak investigation.
One of the reporters is Judith Miller, but since the subpoena is for her phone records and not her testimony we should be spared the spectacle of U.S. Attorney Patrick Fitzgerald putting Miller in jail a second time, although this time it would be for a story she actually wrote. In 2001 she and Philip Shenon wrote that the government planned to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation, presumably for funding foreign terrorist organizations.
The executive order under which the government can freeze organizations’ assets and how that order is carried out are very much worth critical scrutiny. This week a federal judge struck down the order as impermissibly vague, the designations made solely on the president’s say-so and there exists no mechanism for groups to challenger their designation as funders of terrorism.
The judge also said the law impinged on the constitutional right of free association, and to that we would add the freedom of expression.
The Bush administration has never greatly appreciated the press as watchdog and wants to know who tipped off the two reporters. Hence, the subpoena for 11 days of phone records so the feds could determine the source or sources, a process that would also breach the confidentiality and privacy of other people the reporters talked to in the normal course of business.
The courts had mixed feelings about the whole business. A district court prohibited the subpoena; a divided appeals court overturned the lower court; and the Supreme Court declined to hear the appeal.
All this points out the need for a federal press shield law like those in 49 states. A bill, the Free Flow of Information Act, based on longstanding internal Justice Department guidelines, was introduced in this Congress but never acted on.
It should be an early order of business for the next Congress to reintroduce and enact that shield law. The leaders of the new Democratic majorities say they are committed to openness and transparency. Here’s a way to prove it.