New York Times journalist Judith Miller’s phone records have been given to investigator Patrick Fitzgerald by a U.S. Appeals Court in search of the source of a leak that tipped Miller off to government raids on Islamic charities in late 2001. Fitzgerald claims that a source within the government to New York Times reporters Judith Miller and Philip Shenon tipped off Islamic charities under investigation. By calling the charities for comment before investigators could search, Fitzgerald accuses the reporters of giving the charities the opportunity to destroy evidence.

Fitzgerald and Miller have also locked horns over sources in the Valerie Plame affair, in which Miller was held in contempt and imprisoned for refusing to identify Scooter Libby as her source. Rather than put Miller on the stand for grand jury testimony on the charity leak, Fitzgerald subpoenaed her phone records to pinpoint her source within the government.

Miller’s phone records also contained calls to sources unrelated to Fitzgerald’s investigation.

Federal Judge Robert Sweet ruled in favor of Miller and Shenon on the grounds that reporters hold a qualified privilege under the First Amendment to confidential sources. Fitzgerald appealed to New York’s traditionally reporter-friendly U.S. Appeals Court to allow him to present the phone records to the grand jury. In a surprise decision, the court ruled in favor of Fitzgerald in a 2-1 split.

In his summation, Judge Ralph K. Winter wrote, “No grand jury can make an informed decision to pursue the investigation further without the reporter’s evidence.”

The New York Times appealed to the U.S. Supreme Court to protect its reporter’s sources, but the court declined to hear the case, letting the court’s ruling stand. This gravely concerns many who feel that a journalist’s right to confidential sources is an integral part of the right to free speech.

“Using a technical loophole to circumvent the First Amendment,” said professor of justice and policy studies Barton Parks, “(is a) tactic of a totalitarian government.”

Like many states, New York has a shield law protecting a journalist’s right to confidential sources, but these laws have no bearing in a federal court. Also, most state shield laws do not protect a reporter’s sources, if there is no other way for the government to obtain evidence, and do not cover all types of journalists.

Surprisingly, in last year’s Republican-dominated congress, bipartisan bills were proposed in both the House and Senate to enact federal shield laws to protect reporters. Introduced by Senator Richard Lugar (R-Ind.), the Free Flow of Information Act of 2005 would protect even online journalists, but under very strict conditions prosecutors could obtain sources. The act would also grant reporters complete privilege unless an immediate threat to national security was concerned. However, there has been no indication as to what the new Democrat-controlled congress will do with the bills.

Malcolm Kenton, head of the Guilford College Democrats said, “In light of the investigation, it seems it would be a very opportune time for the Democratic congress to take up the shield law – especially seeing that so many Republicans are already behind it.