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Tuesday, Aug 1, 2006, 8:33 pm

Appellate Court Says Judith Miller Must Reveal Sources Who Allowed Her To Foil Police Search

By Brian Zick
Christine Kearney for AP reports on developments in the first Fitz v Miller case.
The U.S. government won an appeal on Tuesday allowing it to seek phone records of New York Times reporters investigating government probes into Islamic charities shortly before the September 11 attacks.

The U.S. Second Circuit Court of Appeals ruled in favor of the government, which wants to know the identity of government sources who might have given information to two New York Times reporters, including former reporter Judith Miller.

The decision is the latest episode in the free speech battle that has pitted U.S. prosecutor Patrick Fitzgerald against the Times and Miller.

The backstory here is that Miller alerted the target of a police raid before the search took place (unintended or not, the target was forewarned). The court determined that "a reporter's third party telephone records can be covered by the same privileges afforded to their personal records, but said the government had shown the information could not be obtained elsewhere."

This situation is just like when Miller tried to cover up for Libby, and the NY Times went along, claiming in essence that reporters have a First Amendment protection to aid and abet violations of law. Courts have for quite some time held that a reporter's privilege is not absolute, and when a prosecutor has exhausted all other possible avenues of inquiry, reporters have an obligation to cooperate. Despite the editorializing by the AP reporter, there is no "free speech battle" in this case the same as there was no threat to the First Amendment when Fitz was investigating Libby.

The court merely affirmed well-established precedent.
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