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February 14, 2006

Don't Plame Me If This Backfires....

Former NY Times reporter Judy Miller may be getting more than she bargained for in court this week. Frustrated by her refusal to cooperate with his investigation into the Plame matter, special prosecutor Patrick Fitgerald has now subpoena'd her phone records:

In March 2005, Judge Sweet ruled that the government had not demonstrated that there were no alternative sources besides the phone records of the two reporters that would allow the investigation to proceed.

"This may be a case of be careful what you ask for," Mr. Fleissner said in court yesterday. "What that means is we should have subpoenaed the reporter directly."

Mr. Fleissner argued on behalf of the government that using phone records to identify a reporter's source is less intrusive than demanding that a reporter answer questions before a federal grand jury.

"The government acted on the premise that it's a lesser step," Mr. Fleissner said after court of the government's decision in the present case to seek records from the phone company rather than questioning reporters directly.

An attorney representing The New York Times, Floyd Abrams, rejected that argument. Mr. Abrams has called the government's request for weeks of phone records "overbroad" and said it would reveal the identities of dozens of sources of Ms. Miller and the second New York Times reporter involved, Philip Shenon.

"Telephone records are the extension of the journalist herself," said Mr. Abrams, arguing that telephone records deserve protection under the First Amendment. "Telephone records are the embodiment of the speech of the journalist."

That may be so, but the fact remains that had she simply complied with his original request, the government would not have needed to subpoena the phone records:

... Mr. Fleissner's warning to "be careful what you ask for" was viewed by some as a possible outline of how the government would proceed in future leak investigations.

"On a broader level it is a threat," Mr. Abrams said. "What he's saying is if you win maybe we will stop following a Mr. Nice Guy path. That is to say, maybe we won't go after phone records, we'll go after the journalists."

When are the media going to have to learn they cannot have their cake and eat it, too?

The media cannot demand the federal government punish parties who "leak" "secret information", then demand the "right" to shield the leakers from investigation.

They cannot refuse to answer reasonable questions and then fight subpoenas of their records in court.

One way or another, the questions they demanded are going to be answered. The only question is whether how long they are willing to go to jail before that happens.

Posted by Cassandra at February 14, 2006 04:11 PM


There are no secrets better kept than the secrets that everybody guesses.
George Bernard Shaw, "Mrs. Warren's Profession" (1893), act III

Posted by: spd rdr [TypeKey Profile Page] at February 14, 2006 05:36 PM

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