Skip to comments.A Victory for Press Freedom( see the flip flop)
Posted on 02/26/2005 3:14:53 PM PST by Pikamax
A Victory for Press Freedom
n a welcome ruling for this newspaper, and the larger cause of robust journalism and government accountability, a federal judge in New York has barred a federal prosecutor's ill-conceived effort to get the phone records of two Times reporters from the fall of 2001 in order to discover the identity of their confidential sources. To justify this intrusive fishing expedition, which could reveal hundreds of communications with confidential sources, the prosecutor, Patrick Fitzgerald, the United States attorney in Chicago, had argued that the records were needed for a grand jury's investigation of government misconduct in the disclosure of impending government actions against two Islamic charities.
The judge, Robert Sweet, reasoned, correctly, that the subpoenas for the phone records were the functional equivalent of demanding testimony from the reporters themselves, and he took note of the important role of confidential sources in news investigations of the Watergate, Iran-contra, Monica Lewinsky and Abu Ghraib scandals. He explained that the United States Court of Appeals for the Second Circuit in New York recognized a qualified First Amendment privilege that protects reporters from being compelled to disclose their confidential sources. And he said Mr. Fitzgerald had not shown that the information he sought was critical and could not be gotten elsewhere. "The reporters at issue relied upon the promise of confidentiality to gather information concerning issues of paramount national importance," Judge Sweet wrote, referring to Judith Miller and Philip Shenon of The Times. "The government has failed to demonstrate that the balance of competing interests weighs in its favor."
Judge Sweet's finding of broad protections for reporters facing grand jury subpoenas stands as a refreshing contrast with last week's chilling decision by a three-judge appellate panel in Washington. That panel found no such protection for members of the press in another case involving Mr. Fitzgerald and Ms. Miller: a grand jury's investigation into the disclosure of the identity of an undercover C.I.A. officer, Valerie Plame. The Washington appeals court ruling raised the prospect that Ms. Miller and Matthew Cooper, of Time magazine, could be jailed for up to 18 months for refusing to testify before a different grand jury. That situation cries out for a rehearing by the full appellate bench and, ultimately, Supreme Court review, especially in light of the contrary New York ruling.
Meanwhile, an even more basic issue has been raised in recent articles in The Washington Post and elsewhere: the real possibility that the disclosure of Ms. Plame's identity, while an abuse of power, may not have violated any law. Before any reporters are jailed, searching court review is needed to determine whether the facts indeed support a criminal prosecution under existing provisions of the law protecting the identities of covert operatives. Some judge may have looked at the issue, but we have no way of knowing, given the bizarre level of secrecy that still prevents the reporters being threatened with jail from seeing the nine-page blanked-out portion of last week's decision evaluating the evidence.
"After an egregiously long delay, Attorney General John Ashcroft finally did the right thing yesterday when he recused himself from the investigation into who gave the name of a CIA operative to the columnist Robert Novak. Mr. Ashcroft turned the inquiry over to his deputy, who quickly appointed a special counsel."
In the recent annals of press freedom, there are few more regrettable sentences than those two from a December 31, 2003, editorial in the New York Times. The special counsel that the Times was cheering on, Patrick Fitzgerald, is now threatening a Times reporter with jail, and in a way that jeopardizes the entire press corps. This is what happens when liberals let their partisan disdain for a President obscure their interest in larger principles.
HA HA HA
Hoisted by their own petard.
Long history of
BY JOE WILLIAMS
DAILY NEWS STAFF WRITER
Judge Robert Sweet knows a thing or two about generating controversy from the federal bench.
Whether it's his support for the legalization of drugs or his opposition to plans that would have given first dibs on openings in public housing to working families, the 82-year-old judge appointed by former President Jimmy Carter has made rulings that have kept the appeals courts busy.
"Prohibition isn't working," Sweet said in a 1989 speech. "We should legalize marijuana, heroin and crack."
A deputy mayor in the Lindsay administration in 1967-69, Sweet once even ruled that it was legal to possess heroin so long as it was only trace amounts and it was in a syringe given out through the city's needle exchange program. In that 2002 ruling, Sweet ruled that it would be "bizarre" to make participation in needle exchanges criminal if the government itself is funding it.
Sweet's controversial rulings are not limited to drug cases.
The judge has been blasted for striking down laws meant to keep streets safe; failing to send a wrongly freed felon back to prison, and jeopardizing the lives of two undercover FBI agents by revealing their identities.
In a 2001 deadbeat dad case involving the son of boxing promoter Don King, Sweet ruled that Congress had overstepped its authority by trying to prosecute fathers who cross state lines to avoid paying child support under the interstate commerce clause of the Constitution.
In May, in early rounds of the New York Civil Liberties Union's case against the city, Sweet ordered Police Commissioner Raymond Kelly to testify under oath about the city's practice of blocking access to demonstrations, searching protesters, using pens to contain demonstrators and using horses for crowd control.
City lawyers unsuccessfully argued it would be a big mistake to publicize internal police practices and tactics considering terrorist threats to the city.
A graduate of Yale Law School, Sweet served as an assistant U.S. attorney in the early 1950s.
Originally published on July 20, 2004
Judge Robert Sweet
This case of Perfect Retribution should be added to St. Thomas Aquinas' five Reasons in the Proof of the Existence of God (Summa Theologia, 1270).
We can't stop murderers and rapists and bank robbers etc so maybe we should just .... - tom