Rebuffed by Justice Ruth Bader Ginsburg, the NYTimes puts out a desperate editorial this morning asking someone, anyone–paging Nancy Pelosi!–to help protect them from accountability for protecting illegal leakers and reporters accused of tipping off terrorist charities:
A journalist’s ability to protect the identity of confidential sources has been further eroded by the Supreme Court’s refusal this week to stop a prosecutor from reviewing the telephone records of two New York Times reporters. This is the latest legal blow to the diminishing right of journalists to shield informants who often provide information of great interest and importance but who might be punished if their identities were known.
The “right” the paper claims is neither absolute nor iron-clad (see Branzburg v. Hayes). As for the “great interest and importance” of information that clues terrorist front groups into impending FBI raids, well, even Justice Ginsburg seems not to have bought into the blabbermouth spin. As the Second Circuit Court ruled in this case:
There is…a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters’ knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not indict, without the reporters’ evidence. It is therefore not privileged.
That didn’t make it into the NYTimes’ screed this morning. More of what did:
[T]he Supreme Court, in refusing to intervene, has effectively allowed the prosecutor to search through the records in hopes he can pinpoint the source of the leak.
This is a bad outcome for the press and for the public.
Speak for yourselves.
The appeals court’s disingenuous suggestion that The Times might redact irrelevant records would simply have helped point to possible leakers.
The public will be ill served if this case reduces the willingness of officials to reveal important but sensitive information.
Translation: The Times and terrorists will be ill served if the paper can’t keep splashing secret and sensitive info undermining the Bush administration’s counterterrorism efforts on its front pages. The editorial ends with an S.O.S. to Congress to pass a special federal shield law like the one they wanted passed during the Plame brouhaha. Read Deputy AG Paul McNulty’s testimony on it here.
Beldar is back and blogging up a storm about this case (hat tip: Patterico). Hope he doesn’t mind my quoting his excellent analysis at length, which provides the reality-based context the Times editorial leaves out:
Yesterday’s SCOTUS ruling comes in an odd procedural context that neither the NYT’s own news story nor the WaPo’s comparable report explained very well — so I’ll try.
The Second Circuit’s decision was rendered on August 1st, but the NYT of course wanted to keep going up the appellate chain, and took the steps needed to continue that process. The NYT asked that in the meantime, Mr. Fitzgerald and the grand jury hold their damned horses, and that the effect of the Second Circuit’s ruling be postponed — the technical legal terminology being to “stay the Second Circuit’s mandate.” The Second Circuit wouldn’t do that itself, so the NYT went to the “Circuit Justice” — that is, the member of the U.S. Supreme Court with emergency supervisory authority over the Second Circuit in particular, which is Associate Justice Ruth Bader Ginsburg — and asked her to stay the Second Circuit’s mandate.
Mr. Fitzgerald, however, was pretty insistent that he not be required to continue holding his horses:
The Justice Department told the Supreme Court on Friday [in response to the NYT’s motion to stay the Second Circuit’s mandate] that Mr. Fitzgerald was under enormous time pressure. “The statute of limitations,” the government said, “will imminently expire on Dec. 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating.”
Now, if the NYT could ever hope to find a friend on the SCOTUS, it’s Justice Ruth Bader “ACLU” Ginsburg. My conservative non-lawyer friends sometimes ask me how I can respect Justice Ginsburg even though I almost never agree with her legal opinions, and this is a good example of why that’s so: Whatever her personal inclinations may have been, in this case she obviously recognized that it just wouldn’t be appropriate for her to make this ruling alone — even though she had the nominal power to do so. Instead, as yesterday’s order recites, she referred the NYT’s request to stay the Second Circuit’s mandate to the full Supreme Court. And the full Supreme Court refused that request, without any dissents. So the Second Circuit’s mandate will promptly issue (or may already have, as of yesterday), and Mr. Fitzgerald’s FBI agents will be pouring over those phone records toot sweet.
Beldar notes the case isn’t over yet, and says the Times will ask the Supreme Court to review the merits of the Second Circuit’s decision through a petition for a writ of certiorari:
…[M]aybe four Justices can be persuaded to vote to grant certiorari, and maybe five can be persuaded to create a privilege that Congress has so far refused to. Or so Mr. Abrams and the NYT will hope.
And in due course, Mr. Abrams will write another fine petition for a writ of certiorari toward that end. But whatever he says for his client or other MSM outlets to reprint, I’ll bet he’s not going to be holding his breath waiting for cert to be granted. Not in this case, not on these facts. Not to protect whoever it was who broke the law to protect terrorists. Someone rabidly pro-media could at least argue with a semi-straight face that chasing down whoever supposedly “outed” Valerie Plame wasn’t such a really big deal, and that the “public’s need to know” (as purportedly protected by reporters’ promises to keep sources confidential) ought to trump that search for evidence.
But not many people or entities besides the New York Times have the unmitigated chutzpah — combined with a breathtaking, and breathtakingly dangerous, childlike naïvety — to argue that someone inside the government ought to be able to tip off the NYT before an FBI raid, and that the NYT’s reporters ought to be able to tip off the terrorists, and then that those criminally stupid tipsters, like the terrorists, should just be able to get away with it.
Which reminds me: Guess who won the poll yesterday?
Supreme Court to NYTimes: Buzz off
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