No Easy Answers


Tuesday, August 01, 2006

2nd Circuit Reversal of Reporter Privilege

 1                         UNITED STATES COURT OF APPEALS

 2                               FOR THE SECOND CIRCUIT

 3                                 August Term, 2005

 4   (Argued: February 13, 2006                     Decided: August 1, 2006)

 5                               Docket No. 05-2639-cv

 6   ---------------------------------

 7   THE NEW YORK TIMES COMPANY,

 8        Plaintiff-Appellee,

 9               -    v.     -

10   ALBERTO GONZALES, in his official capacity as Attorney General of

11   the United States, and THE UNITED STATES OF AMERICA,

12        Defendants-Appellants.

13   ---------------------------------

14   B e f o r e:     KEARSE, WINTER, and SACK, Circuit Judges.

15        Appeal from a grant of summary judgment to a newspaper on

16   its claim for a declaratory judgment that its reporters'

17   telephone records are privileged from a potential grand jury

18   subpoena.    We vacate and remand.

19        Judge Sack dissents in a separate opinion.

20                           JAMES P. FLEISSNER, Special Assistant United
21                           States Attorney (Patrick J. Fitzgerald,
22                           United States Attorney for the Northern
23                           District of Illinois, Debra Riggs Bonamici,
24                           Daniel W. Gillogly, Assistant United States
25                           Attorneys, Chicago, Illinois, on the brief),
26                           for Defendants-Appellants.
27
28                           FLOYD ABRAMS, Cahill Gordon & Reindel LLP,
29                           New York, New York (Susan Buckley, Brian

                                                       1
 1                        Markley, Cahill Gordon & Reindel, New York,
 2                        New York, on the brief; George Freeman, New
 3                        York Times Company, New York, New York, of
 4                        counsel), for Plaintiff-Appellee.
 5
 6
 7   WINTER, Circuit Judge:

 8        After the attacks on the World Trade Center and the Pentagon

 9   on September 11, 2001, the federal government launched or

10   intensified investigations into the funding of terrorist

11   activities by organizations raising money in the United States.

12   In the course of those investigations, the government developed a

13   plan to freeze the assets and/or search the premises of two

14   foundations.   Two New York Times reporters learned of these

15   plans, and, on the eve of each of the government's actions,

16   called each foundation for comment on the upcoming government

17   freeze and/or searches.

18        The government, believing that the reporters' calls

19   endangered the agents executing the searches and alerted the

20   targets, allowing them to take steps mitigating the effect of the

21   freeze and searches, began a grand jury investigation into the

22   disclosure of its plans regarding the foundations.   It sought the

23   cooperation of the Times and its reporters, including access to

24   the Times' phone records.   Cooperation was refused, and the

25   government threatened to obtain the phone records from third

26   party providers of phone services.   The Times then brought the

27   present action seeking a declaratory judgment that phone records


                                      2

 1   of its reporters in the hands of third party telephone providers

 2   are shielded from a grand jury subpoena by reporter's privileges

 3   protecting the identity of confidential sources arising out of

 4   both the common law and the First Amendment.

          Although dismissing two of the Times' claims,1 Judge Sweet
 5

 6   granted the Times' motion for summary judgment on its claims that

 7   disclosure of the records was barred by both a common law and a

 8   First Amendment reporter's privilege.     He further held that,

 9   although the privileges were qualified, the government had not

10   offered evidence sufficient to overcome them.

11        We vacate and remand.   We hold first that whatever rights a

12   newspaper or reporter has to refuse disclosure in response to a

13   subpoena extends to the newspaper's or reporter's telephone

14   records in the possession of a third party provider.    We next

15   hold that we need not decide whether a common law privilege

16   exists because any such privilege would be overcome as a matter

17   of law on the present facts.   Given that holding, we also hold

18   that no First Amendment protection is available to the Times on

19   these facts in light of the Supreme Court's decision in Branzburg

20   v. Hayes, 408 U.S. 665 (1972).

21                                BACKGROUND

22        A federal grand jury in Chicago is investigating how two

23   Times reporters obtained information about the government's

24   imminent plans to freeze the assets and/or search the offices of


                                      3

 1   Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF")

 2   on December 4 and 14, 2001, respectively, and why the reporters

 3   conveyed that information to HLF and GRF by seeking comment from

 4   them ahead of the search.    Both entities were suspected of

 5   raising funds for terrorist activities.    The government alleges

 6   that, "[i]n both cases, the investigations -- as well as the

 7   safety of FBI agents participating in the actions -- were

 8   compromised when representatives of HLF and GRF were contacted

 9   prior to the searches by New York Times reporters Philip Shenon

10   and Judith Miller, respectively, who advised of imminent adverse

11   action by the government."    The government maintains that none of

12   its agents were authorized to disclose information regarding

13   plans to block assets or to search the premises of HLF or GRF

14   prior to the execution of those actions.    The unauthorized

15   disclosures of such impending law enforcement actions by a

16   government agent can constitute a violation of federal criminal

17   law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of

18   national defense information to persons not entitled to receive

19   it), including the felony of obstruction of justice, 18 U.S.C. §

20   1503(a).

21        On October 1, 2001, the Times published a story by Miller

22   and another reporter that the government was considering adding

23   GRF to a list of organizations with suspected ties to terrorism.

24   Miller has acknowledged that this information was given to her by


                                       4

 1   "confidential sources."   On December 3, 2001, Miller "telephoned

 2   an HLF representative seeking comment on the government's intent

 3   to block HLF's assets."   The following day, the government

 4   searched the HLF offices.    The government contends that Miller's

 5   call alerted HLF to the impending search and led to actions

 6   reducing the effectiveness of the search.   The Times also put an

 7   article by Miller about the search on the Times' website and in

 8   late-edition papers on December 3, 2001, the day before the

 9   search.    The article claimed to be based in part on information

10   from confidential sources.   The Times also published a post-

11   search article by Miller in the December 4 print edition.

12        In a similar occurrence, on December 13, 2001, Shenon

13   "contact[ed] GRF for the purposes of seeking comment on the

14   government's apparent intent to freeze its assets."   The

15   following day, the government searched GRF offices.   The

16   government has since stated that "GRF reacted with alarm to the

17   tip from [Shenon], and took certain action in advance of the FBI

18   search."   It has claimed that "when federal agents entered the

19   premises to conduct the search, the persons present at Global

20   Relief Foundation were expecting them and already had a

21   significant opportunity to remove items."   Shenon reported the

22   search of the GRF offices in an article published on December 15,

23   2001, the day after the government's search.

24        After learning that the government's plans to take action


                                       5

 1   against GRF had been leaked, Patrick J. Fitzgerald, the United

 2   States Attorney for the Northern District of Illinois, opened an

 3   investigation to identify the government employee(s) who

 4   disclosed the information to the reporter(s) about the asset

 5   freeze/search.   On August 7, 2002, Fitzgerald wrote to the Times

 6   and requested a voluntary interview with Shenon and voluntary

 7   production of his telephone records from September 24 to October

 8   2, 2001, and December 7 to 15, 2001.      Fitzgerald's letter stated

 9   that "[i]t has been conclusively established that Global Relief

10   Foundation learned of the search from reporter Philip Shenon of

11   the New York Times"; ^2 the requested interview and records were

12   therefore essential to investigating "leaks which may strongly

13   compromise national security and thwart investigations into

14   terrorist fundraising."   Anticipating the Times' response, the

15   letter argued in strong language that the First Amendment did not

16   protect the "potentially criminal conduct" of Shenon's source or

17   Shenon's "decision . . . to provide a tip to the subject of a

18   terrorist fundraising inquiry."       The Times refused the request

19   for cooperation on the ground that the First Amendment provides

20   protection against a newspaper "having to divulge confidential

21   source information to the Government."

22        On July 12, 2004, Fitzgerald wrote again to the Times and

23   renewed the request for an interview with Shenon and the

24   production of his telephone records.      He enlarged the request to



                                       6

 1   include an interview with Miller and the production of her

 2   telephone records from September 24 to October 2, 2001, November

 3   30 to December 4, 2001, and December 7 to 15, 2001.   Fitzgerald

 4   stated that the investigation involved "extraordinary

 5   circumstances" and that any refusal by the Times to provide the

 6   pertinent information would force him to seek the telephone

 7   records from third parties, i.e., the Times' telephone service

 8   providers.   The Times again refused the request and questioned

 9   whether the government had exhausted all alternative sources.

10   The Times argued that turning over the reporters' telephone

11   records would give the government access to all the reporters'

12   sources during the time periods indicated, not just those

13   relating to the government's investigation.   The Times believed

14   that such a request "would be a fishing expedition well beyond

15   any permissible bounds."

16        The Times also contacted its telephone service providers and

17   requested that they notify the Times if they received any demand

18   from the government to turn over the disputed records, giving the

19   Times an opportunity to challenge the government's action.    The

20   telephone service providers declined to agree to that course of

21   action.

22        Fitzgerald responded with a letter stating that he had

23   "exhausted all reasonable alternative means" of obtaining the

24   information but that he was not obligated to disclose those steps


                                      7

 1   to the Times nor did he "intend to engage in debate by letter."

 2   Fitzgerald, however, invited the Times to contact him if it

 3   "wish[ed] to have a serious conversation . . . to discuss

 4   cooperating in this matter."

 5        On August 4, 2004, attorneys Floyd Abrams and Kenneth Starr

 6   wrote a letter on behalf of the Times to James Comey, then the

 7   Deputy Attorney General.   Abrams and Starr requested an

 8   opportunity to discuss Fitzgerald's efforts to obtain the

 9   telephone records of Shenon and Miller and reaffirmed that the

10   Times believed that it was not required to divulge the disputed

11   records.   The letter also requested that, if the telephone

12   records were sought from the Times' third party service

13   providers, the Times reporters be given the opportunity to

14   "assert their constitutional right to maintain the

15   confidentiality of their sources . . . in a court of law."    On

16   September 23, 2004, Comey rejected the request for a meeting,

17   saying:    "Having diligently pursued all reasonable alternatives

18   out of regard for First Amendment concerns, and having adhered

19   scrupulously to Department policy, including a thorough review of

20   Mr. Fitzgerald's request within the Department of Justice, we are

21   now obliged to proceed" with efforts to obtain the telephone

22   records from a third party.    Comey noted that the government did

23   not "have an obligation to afford the New York Times an

24   opportunity to challenge the obtaining of telephone records from



                                       8

 1   a third party prior to [its] review of the records, especially in

 2   investigations in which the entity whose records are being

 3   subpoenaed chooses not to cooperate with the investigation."

 4        Five days later, the Times filed the present action in the

 5   Southern District of New York.   The counts of the complaint

 6   pertinent to this appeal sought a declaratory judgment that

 7   reporters' privileges against compelled disclosure of

 8   confidential sources prevented enforcement of a subpoena for the

 9   reporters' telephone records in the possession of third parties.

10   The claimed privileges were derived from the federal common law

11   and the First Amendment.

12        On October 27, 2004, the government moved to dismiss the

13   complaint on the ground that plaintiffs have an adequate remedy

14   under Federal Rule of Criminal Procedure 17.   The Times opposed

15   the government's motion to dismiss and moved for summary

16   judgment.   The government then filed a cross motion for summary

17   judgment.

18        Judge Sweet denied the government's motion to dismiss.     New

19   York Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y. 2005).

20   He concluded that he had discretion to entertain the action for

21   declaratory judgment and had no reason to decline to exercise

22   that discretion, especially because a motion to quash would not

23   provide the Times the same relief provided by a declaratory

24   judgment.   Id. at 475-79.   Judge Sweet granted the Times' motion



                                       9

 1   for summary judgment on its claims that Shenon's and Miller's

 2   telephone records were protected against compelled disclosure of

 3   confidential sources by two qualified privileges.      Id. at 492,

 4   508.    One privilege was derived from the federal common law

 5   pursuant to Federal Rule of Evidence 501; the other source was

 6   the First Amendment.    Id. at 490-92, 501-08, 510-13.    The

 7   government appealed.

 8                                DISCUSSION

 9   a)   The Declaratory Judgment Act

10          Under the Declaratory Judgment Act, a district court "may

11   declare the rights and other legal relations of any interested

12   party seeking such declaration, whether or not further relief is

13   or could be sought."    28 U.S.C. § 2201(a).    A district court may

14   issue a declaratory judgment only in "a case of actual

15   controversy within its jurisdiction."     Id.   The Act does not

16   require the courts to issue a declaratory judgment.      Rather, it

17   "'confers a discretion on the courts rather than an absolute

18   right upon the litigant.'"    Wilton v. Seven Falls Co., 515 U.S.

19   277, 287 (1995) (citing Public Serv. Comm'n of Utah v. Wycoff

20   Co., 344 U.S. 237, 241 (1952)).

21          The government argues that the district court should not

22   have exercised jurisdiction over this action for two reasons:

23   (i) because there is a "special statutory proceeding" for the

24   Times' claim under Federal Rule of Criminal Procedure 17(c)'s



                                       10

 1   provisions for quashing a subpoena, a declaratory judgment is

 2   unnecessary, and, (ii) because the district judge improperly

 3   balanced the factors guiding the exercise of discretion.

 4        We review the underlying legal determination that Rule 17(c)

 5   is not a special statutory proceeding precluding a declaratory

 6   judgment action de novo, and we review the decision to entertain

 7   such an action for abuse of discretion.   Duane Reade, Inc. v. St.

 8   Paul Fire & Marine Ins. Co., 411 F.3d 384, 388-89 (2d Cir. 2005).

 9      1.   Special Statutory Proceeding

10        Federal Rule of Civil Procedure 57 states that "[t]he

11   existence of another adequate remedy does not preclude a judgment

12   for declaratory relief in cases where it is appropriate."

13   However, the Advisory Committee's Note purports to qualify this

14   Rule by stating that a "declaration may not be rendered if a

15   special statutory proceeding has been provided for the

16   adjudication of some special type of case, but general ordinary

17   or extraordinary legal remedies, whether regulated by statute or

18   not, are not deemed special statutory proceedings."   Fed. R. Civ.

19   P. 57 advisory committee's note.

20        Rule 17(c)(2) permits a court to quash or modify a subpoena

21   that orders a witness to produce documents and other potential

22   evidence, when "compliance would be unreasonable or oppressive."

23   Fed. R. Crim. P. 17(c)(2).   Although Rule 17 itself is not a

24   statute, it is referenced by 18 U.S.C. § 3484.   The government



                                     11

 1   contends that Rule 17(c) is a special statutory proceeding within

 2   the meaning of the Advisory Committee's Note and that its

 3   existence therefore renders declaratory relief inappropriate.

 4   It further notes that there is only one decision in which a

 5   plaintiff attempted to challenge federal grand jury subpoenas

 6   through a declaratory judgment action, Doe v. Harris, 696 F.2d

 7   109 (D.C. Cir. 1982), and that did not entail a ruling on whether

 8   the complaint stated a valid claim for relief.    Id. at 112.

 9        However, since the enactment of the Declaratory Judgment

10   Act, only a handful of categories of cases have been recognized

11   as "special statutory proceedings" for purposes of the Advisory

12   Committee's Note.    These include:   (i) petitions for habeas

13   corpus and motions to vacate criminal sentences, e.g., Clausell

14   v. Turner, 295 F. Supp. 533, 536 (S.D.N.Y. 1969); (ii)

15   proceedings under the Civil Rights Act of 1964, e.g., Katzenbach

16   v. McClung, 379 U.S. 294, 296 (1964); and (iii) certain

17   administrative proceedings, e.g., Deere & Co. v. Van Natta, 660

18   F. Supp. 433, 436 (M.D.N.C. 1986) (involving a decision on patent

19   validity before U.S. patent examiners).    Each of these categories

20   involved procedures and remedies specifically tailored to a

21   limited subset of cases, usually one brought under a particular

22   statute.   Rule 17(c) is not of such limited applicability.

23   Rather, it applies to all federal criminal cases.    Were we to

24   adopt the government's theory and treat a motion to quash under


                                     12

 1   Rule 17(c) as a "special statutory proceeding," we would

 2   establish a precedent potentially qualifying a substantial number

 3   of federal rules of criminal and civil procedure as special

 4   statutory proceedings and thereby severely limit the availability

 5   of declaratory relief.    Therefore, we hold that the existence of

 6   Rule 17(c) does not preclude per se a declaratory judgment.

 7     2.    Application of the Dow Jones Factors

 8          In Dow Jones & Co., Inc. v. Harrods Ltd., 346 F.3d 357, 359-

 9   60 (2d Cir. 2003), we outlined five factors to be considered

10   before a court entertains a declaratory judgment action:      (i)

11   "whether the judgment will serve a useful purpose in clarifying

12   or settling the legal issues involved"; (ii) "whether a judgment

13   would finalize the controversy and offer relief from

14   uncertainty"; (iii) "whether the proposed remedy is being used

15   merely for 'procedural fencing' or a 'race to res judicata'";

16   (iv) "whether the use of a declaratory judgment would increase

17   friction between sovereign legal systems or improperly encroach

18   on the domain of a state or foreign court"; and (v) "whether

19   there is a better or more effective remedy."      Id. (citations

20   omitted).

21          We review a district court's application of the Dow Jones

22   factors only for abuse of discretion.      Duane Reade, 411 F.3d at

23   388.    The district court did not abuse its discretion in

24   entertaining the present action.      Factors (i) and (ii) favor a



                                      13

 1   decision on the merits.   There is a substantial chance that the

 2   phone records, although they will not reveal the content of

 3   conversations or the existence of other contacts, will provide

 4   reasons to focus on some individuals as being the source(s).     If

 5   so, the Times may have no chance to assert its claim of

 6   privileges as to the source(s)' identity.     It would therefore be

 7   "useful" to clarify the existence of the asserted privileges now.

 8   Dow Jones, 346 F.3d at 359.     Moreover, a declaratory judgment

 9   will "finalize the controversy" over the existence of any

10   privilege on the present facts and provide "relief from

11   uncertainty" in that regard.    Id.    For similar reasons, factor

12   (iii) also calls for a decision on the merits.     Seeking a final

13   resolution of the privilege issue is surely more than "procedural

14   fencing" on the facts of this case.     Id. at 359-60.   Factor (iv)

15   is inapplicable on its face.

16        As for factor (v), a motion to quash under Rule 17(c) would

17   not offer the Times the same relief as a declaratory action under

18   the circumstances of this case.    First, a motion to quash is not

19   available if the subpoena has not been issued.     2 Charles Alan

20   Wright, Federal Practice and Procedure § 275 (3d ed. 2000)

21   (citing In re Grand Jury Investigation (General Motors Corp.), 31

22   F.R.D. 1 (S.D.N.Y. 1962)).    Second, it is unknown whether

23   subpoenas have been issued to telephone carriers or not, and if

24   so, whether the carriers have already complied.     It is also



                                       14

 1   unclear whether, when a subpoena has been issued to a third party

 2   and the third party has complied, a motion to quash is still a

 3   viable path to a remedy.      See Fed. R. Crim. P. 17(c) (not

 4   addressing whether a subpoena may be quashed after it is complied

 5   with).

 6         The district court, therefore, did not abuse its discretion

 7   in concluding that it should exercise jurisdiction over this

 8   action.

 9   b)   Reporters' Privilege

10        1.   Subpoenas to Third Party Providers

11         The threatened subpoena seeks the reporters' telephone

12   records from a third party provider.      The government argues that,

13   whatever privileges the reporters may themselves have, they

14   cannot defeat a subpoena of third party telephone records.       Given

15   a dispositive precedent of this court, we cannot agree.

16         In Local 1814, International Longshoremen's Ass'n, AFL-CIO

17   v. Waterfront Commission, 667 F.2d 267 (2d Cir. 1981), a union

18   sought to enjoin a subpoena issued to a third party by the

19   Waterfront Commission.      Id. at 269.   In the course of

20   investigating whether longshoremen had been coerced into

21   authorizing payroll deductions to the union's political action

22   committee, the Commission issued a subpoena to the third party

23   that administered the union's payroll deductions.       Id.   The union

24   challenged the subpoena, and we concluded that the union's First



                                        15

 1   Amendment rights were implicated by the subpoena to the third

 2   party.    Id. at 271.    We stated, "First Amendment rights are

 3   implicated whenever government seeks from third parties records

 4   of actions that play an integral part in facilitating an

 5   association's normal arrangements for obtaining members or

 6   contributions."    Id.    Because the payroll deduction system was an

 7   integral part of the fund's operations, the records of the third

 8   party were "entitled to the same protection available to the

 9   records of the [union]."       Id.

10          Under this standard, so long as the third party plays an

11   "integral role" in reporters' work, the records of third parties

12   detailing that work are, when sought by the government, covered

13   by the same privileges afforded to the reporters themselves and

14   their personal records.      Without question, the telephone is an

15   essential tool of modern journalism and plays an integral role in

16   the collection of information by reporters. ^3 Under

17   Longshoremen's, therefore, any common law or First Amendment

18   protection that protects the reporters also protects their third

19   party telephone records sought by the government.

20     2.    Common Law Privilege

21          The Times claims that a common law privilege protects

22   against disclosure of the identity of the confidential source(s)

23   who informed its reporters of the imminent actions against HLF

24   and GRF.    The issue of the existence and breadth of a reporter's



                                          16

 1   common law privilege is before us in two contexts.

 2        It arises, first, in the context of the Times' claim with

 3   regard to the third party providers' phone records, as noted

 4   above.   Although a record of a phone call does not disclose

 5   anything about the reason for the call, the topics discussed, or

 6   other meetings between the parties to the calls, it is a first

 7   step of an inquiry into the identity of the reporters' source(s)

 8   of information regarding the HLF and GRF asset freezes/searches.

 9   The identity of the source(s) is at the heart of the claimed

10   privilege that necessitates a declaratory judgement.

11        The privilege issue arises, second, in a more subtle way.

12   The Times also argues that subpoenas to third party providers are

13   overbroad because they might disclose the reporters' sources on

14   matters not relevant to the investigation at hand.    This

15   overbreadth argument turns on the validity of the subsidiary

16   claim that the government has not exhausted alternative sources

17   that avoid the disclosure of sensitive information on irrelevant

18   sources and do not implicate privileged material.    Because the

19   reporters are the only reasonable alternative source that can

20   provide reliable information allowing irrelevant material to be

21   excluded from the subpoena, the privilege of the reporters to

22   refuse to cooperate is at stake in this respect also.    That is to

23   say, the overbreadth argument poses the question of whether the

24   reporters themselves are unprivileged alternative sources of



                                     17

 1   information who can be compelled to identify the informant(s)

 2   relevant to the present investigation.

 3        Using the method of analysis set out in Jaffee v. Redmond,

 4   518 U.S. 1 (1996), in which the Supreme Court recognized a

 5   privilege between a psychotherapist and a patient and applied it

 6   to social workers and their patients, the district court

 7   concluded that a qualified reporter's privilege exists under

 8   Federal Rule of Evidence 501.   New York Times Co., 382 F. Supp.

 9   2d at 492-508.   After finding that such a privilege exists, the

10   district court held that any such privilege would be qualified

11   rather than absolute and that it would not be overcome on the

12   facts of the present case.   Id. at 497.   We agree that any such

13   privilege would be a qualified one, but we also conclude that it

14   would be overcome as a matter of law on these facts.    It is

15   unnecessary, therefore, for us to rule on whether such a

16   privilege exists under Rule 501.

17        A.   Any Common Law Privilege Would Be Qualified

18        The district court's conclusion that any common law

19   privilege derived from Federal Rule of Evidence 501 would be

20   qualified rather than absolute was based on several factors.

21   While the court adopted the view that the lack of protection

22   afforded by the absence of any privilege would impact negatively

23   on important private and public interests but yield only a

24   "modest evidentiary benefit," it also recognized that in



                                     18

 1   particular circumstances "compelling public interests" might

 2   require that the privilege be overcome.    382 F. Supp. 2d at 501.

 3   This recognition acknowledges that the government has a highly

 4   compelling and legitimate interest in preventing disclosure of

 5   some matters and that that interest would be seriously

 6   compromised if the press became a conduit protected by an

 7   absolute privilege through which individuals might covertly cause

 8   disclosure.

 9        In that regard, the district court noted that every federal

10   court that had recognized a reporter's privilege under Federal

11   Rule of Evidence 501 had concluded that any such privilege was a

12   qualified one, 382 F. Supp. 2d at 501, and that most states

13   affording such a privilege also provided only qualified

14   protection, id. at 502-03.     We agree with, and substantially

15   adopt, the district court's reasoning on this point.

16        B.   Privilege Overcome

17        We need not determine the precise contours of any such

18   qualified privilege.   Various formulations have included:   (i) a

19   test requiring a showing of "clear relevance," United States v.

20   Cutler, 6 F.3d 67, 74 (2d Cir. 1993), (ii) one requiring that

21              the government must (1) show that there is
22              probable cause to believe that the newsman
23              has information that is clearly relevant to a
24              specific probable violation of law; (2)
25              demonstrate that the information sought
26              cannot be obtained by alternative means less
27              destructive of First Amendment rights; and
28              (3) demonstrate a compelling and overriding


                                       19

 1             interest in the information,
 2
 3   Branzburg, 408 U.S. at 743 (Stewart, J., dissenting); or (iii) a

 4   test requiring a showing that the information sought is "highly

 5   material and relevant, necessary or critical to the maintenance

 6   of the claim, and not obtainable from other available sources,"

 7   In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir.

 8   1982) (citations omitted).   The district court selected (iii) as

 9   the governing formula and concluded that the government had not

10   shown either materiality or the unavailability elsewhere of the

11   same information.   382 F. Supp. 2d at 510-13.    We disagree.   We

12   believe that, whatever standard is used, the privilege has been

13   overcome as a matter of law on the facts before us.

14        The grand jury investigation here is focused on:     (i) the

15   unauthorized disclosures of imminent plans of federal law

16   enforcement to seize assets and/or execute searches of two

17   organizations under investigation for funding terrorists,

18   followed by (ii) communications to these organizations that had

19   the effect of alerting them to those plans, perhaps endangering

20   federal agents and reducing the efficacy of the actions.

21        The grand jury thus has serious law enforcement concerns as

22   the goal of its investigation.   The government has a compelling

23   interest in maintaining the secrecy of imminent asset freezes or

24   searches lest the targets be informed and spirit away those

25   assets or incriminating evidence.     At stake in the present



                                      20

 1   investigation, therefore, is not only the important principle of

 2   secrecy regarding imminent law enforcement actions but also a set

 3   of facts -- informing the targets of those impending actions --

 4   that may constitute a serious obstruction of justice.

 5        It is beyond argument that the evidence from the reporters

 6   is on its face critical to this inquiry.   First, as the

 7   recipients of the disclosures, they are the only witnesses --

 8   other than the source(s) -- available to identify the

 9   conversations in question and to describe the circumstances of

10   the leaks.   Second, the reporters were not passive collectors of

11   information whose evidence is a convenient means for the

12   government to identify an official prone to indiscretion.    The

13   communications to the two foundations were made by the reporters

14   themselves and may have altered the results of the asset freezes

15   and searches; that is to say, the reporters' actions are central

16   to (and probably caused) the grand jury's investigation.    Their

17   evidence as to the relationship of their source(s) and the leaks

18   themselves to the informing of the targets is critical to the

19   present investigation.   There is simply no substitute for the

20   evidence they have.

21        The centrality of the reporters' evidence to the

22   investigation is demonstrated by the Times' echoing of the

23   district court's understandable view that some or many of the

24   phone records sought are not material because they do not relate



                                     21

 1   to the investigation and may include reporters' sources on other

 2   newsworthy matters.   The Times seeks to add to that argument by

 3   stating that the government has not exhausted available non-

 4   privileged alternatives to the obtaining of the phone records.

 5        This argument is more ironic than persuasive.    Redactions of

 6   documents are commonplace where sensitive and irrelevant

 7   materials are mixed with highly relevant information.    United

 8   States v. Nixon, 418 U.S. 683, 713-14 (1974); In re Grand Jury

 9   Subpoenas Dated March 19, 2002 and August 2, 2002, 318 F.3d 379,

10   386 (2d Cir. 2003) (describing in camera review as "a practice

11   both long-standing and routine in cases involving claims of

12   privilege" and collecting cases).    Our caselaw regarding

13   disclosure of sources by reporters provides ample support for

14   redacting materials that might involve confidential sources not

15   relevant to the case at hand.   United States v. Cutler, 6 F.3d

16   67, 74-75 (2d Cir. 1993) (rejecting defendant's subpoena seeking

17   reporters' unpublished notes because the notes' "irrelevance . .

18   . seems clear").   In the present case, therefore, any reporters'

19   privilege -- or lesser legal protection -- with regard to non-

20   material sources can be fully accommodated by the appropriate

21   district court's in camera supervision of redactions of phone

22   records properly shown to be irrelevant.

23        However, the knowledge and testimony of the reporters does

24   not have a reasonably available substitute in redacting the


                                     22

 1   records because it is the content of the underlying conversations

 2   and/or other contacts that would determine relevancy.   Redactions

 3   would therefore require the cooperation of the Times or its

 4   reporters, or both, in identifying the material to be redacted

 5   and verifying it as irrelevant, or in credibly disclosing the

 6   reporters' source(s) to the grand jury and obviating the need to

 7   view in gross the phone records.

 8        In short, the only reasonable unavailed-of alternative that

 9   would mitigate the overbreadth of the threatened subpoena is the

10   cooperation of the reporters and the Times. ^4 We fully understand

11   the position taken by the Times regarding protection of its

12   reporters' confidential communications with the source(s) of

13   information regarding the HLF and GRF asset freezes/searches.

14   However, the government, having unsuccessfully sought the Times'

15   cooperation, cannot be charged by the Times with having issued an

16   unnecessarily overbroad subpoena.   By the same token, the

17   government, if offered cooperation that eliminates the need for

18   the examination of the Times' phone records in gross, cannot

19   resist the narrowing of the information to be produced.   United

20   States v. Burke, 700 F.2d 70, 76 (2d Cir. 1983) (rejecting

21   subpoena when the information it sought would serve a "solely

22   cumulative purpose").

23        There is therefore a clear showing of a compelling

24   governmental interest in the investigation, a clear showing of


                                    23

 1   relevant and unique information in the reporters' knowledge, and

 2   a clear showing of need.   No grand jury can make an informed

 3   decision to pursue the investigation further, much less to indict

 4   or not indict, without the reporters' evidence.   It is therefore

 5   not privileged.

 6        We emphasize that our holding is limited to the facts before

 7   us, namely the disclosures of upcoming asset freezes/searches and

 8   informing the targets of them.   For example, in order to show a

 9   need for the phone records, the government asserts by way of

10   affidavit that it has "reasonably exhausted alternative

11   investigative means" and declines to give further details of the

12   investigation on the ground of preserving grand jury secrecy.

13   While we believe that the quoted statement is sufficient on the

14   facts of this case, we in no way suggest that such a showing

15   would be adequate in a case involving less compelling facts.     In

16   the present case, the unique knowledge of the reporters is at the

17   heart of the investigation, and there are no alternative sources

18   of information that can reliably establish the circumstances of

19   the disclosures of grand jury information and the revealing of

20   that information to targets of the investigation.

21        We see no danger to a free press in so holding.   Learning of

22   imminent law enforcement asset freezes/searches and informing

23   targets of them is not an activity essential, or even common, to

24   journalism. ^5  Where such reporting involves the uncovering of




                                      24

 1   government corruption or misconduct in the use of investigative

 2   powers, courts can easily find appropriate means of protecting

 3   the journalists involved and their sources.       Branzburg, 408 U.S.

 4   at 707-08 ("[A]s we have earlier indicated, news gathering is not

 5   without its First Amendment protections, and grand jury

 6   investigations if instituted or conducted other than in good

 7   faith, would pose wholly different issues for resolution under

 8   the First Amendment.   Official harassment of the press undertaken

 9   not for purposes of law enforcement but to disrupt a reporter's

10   relationship with his news sources would have no justification.

11   Grand juries are subject to judicial control and subpoenas to

12   motions to quash.   We do not expect courts will forget that grand

13   juries must operate within the limits of the First Amendment as

14   well as the Fifth.") (footnote omitted).

15   3.   First Amendment Protection

16        Branzburg v. Hayes, 408 U.S. 665 (1972), is the governing

17   precedent regarding reporters' protection under the First

18   Amendment from disclosing confidential sources.       That case was a

19   consolidated appeal of various reporters' claims that they could

20   not be compelled to testify before a grand jury concerning

21   activity they had observed pursuant to a promise of

22   confidentiality.    Id. at 667-79.     The reporters argued that "the

23   burden on news gathering resulting from compelling reporters to

24   disclose confidential information outweighs any public interest



                                       25

 1   in obtaining the information."    Id. at 681.

 2        The court concluded, on a 5-4 vote, that the reporters had

 3   no such privilege.   Justice White wrote the majority opinion.

 4   Justice Powell, although concurring in the White opinion, wrote a

 5   brief concurrence.   Justice Stewart wrote a dissent in which

 6   Justices Brennan and Marshall concurred.   Justice Douglas wrote a

 7   further dissent.

 8        Justice White's majority opinion stated, "We are asked to

 9   create another [testimonial privilege] by interpreting the First

10   Amendment to grant newsmen a testimonial privilege that other

11   citizens do not enjoy.   This we decline to do."   Id. at 690.

12   While the body of Justice White's opinion was decidedly negative

13   toward claims similar to those raised by the Times, it noted that

14   the First Amendment might be implicated if a subpoena were issued

15   to a reporter in bad faith.   "[G]rand jury investigations if

16   instituted or conducted other than in good faith, would pose

17   wholly different questions for resolution under the First

18   Amendment."   Id. at 707.   See also id. at 700 (stating that

19   "Nothing in the record indicates that these grand juries were

20   probing at will and without relation to existing need.")

21   (citation, brackets, and quotation marks omitted).

22        Justice Powell joined the majority opinion and also wrote a

23   short concurrence for the purpose of "emphasiz[ing] what seems to

24   me to be the limited nature of the Court's holding."    Id. at 709



                                      26

 1   (Powell, J., concurring).   He stated that:

 2             If a newsman believes that the grand jury
 3             investigation is not being conducted in good
 4             faith he is not without remedy. Indeed, if
 5             the newsman is called upon to give
 6             information bearing only a remote and tenuous
 7             relationship to the subject of the
 8             investigation, or if he has some other reason
 9             to believe that his testimony implicates
10             confidential source relationship without a
11             legitimate need of law enforcement, he will
12             have access to the court on a motion to quash
13             and an appropriate protective order may be
14             entered.
15
16   Id. at 710.   Justice Powell then concluded that "[t]he asserted

17   claim to privilege should be judged on its facts by the striking

18   of a proper balance between freedom of the press and the

19   obligation of all citizens to give relevant testimony with

20   respect to criminal conduct."   Id.

21        In dissent, Justice Stewart stated that he would recognize a

22   First Amendment right in reporters to decline to reveal

23   confidential sources.   Id. at 737-38.   The right would be

24   qualified, however, and subject to being overcome under the test

25   quoted above.   Id. at 743, supra at Part (b)(2)(B).   Justices

26   Brennan and Marshall joined that opinion.

27        Justice Douglas's dissent recognized an absolute right in

28   journalists not to appear before grand juries to testify

29   regarding journalistic activities.    He reasoned that unless those

30   activities implicated a journalist in a crime, the First

31   Amendment was a shield against answering the grand jury's


                                     27

 1   questions.   If the journalist was implicated in a crime, the

 2   Fifth Amendment would provide a similar shield.

 3        The parties debate various of our decisions addressing First

 4   Amendment claims with regard to reporters' rights to protect

 5   confidences and the import of Branzburg.    Gonzales v. National

 6   Broadcasting Co., Inc., 194 F.3d 29 (2d Cir. 1999); United States

 7   v. Cutler, 6 F.3d 67 (2d Cir. 1993); United States v. Burke, 700

 8   F.2d 70 (2d Cir. 1983);    In re Petroleum Prods. Antitrust Litig.,

 9   680 F.2d 5 (2d Cir. 1982).

10        We see no need to add a detailed analysis of our precedents.

11   None involved a grand jury subpoena or the compelling law

12   enforcement interests that exist when there is probable cause to

13   believe that the press served as a conduit to alert the targets

14   of an asset freeze and/or searches.    Branzburg itself involved a

15   grand jury subpoena, is concededly the governing precedent, ^6 and

16   none of the opinions of the Court, save that of Justice Douglas, ^7

17   adopts a test that would afford protection against the present

18   investigation.

19        Certainly, nothing in Justice White's opinion or in Justice

20   Powell's concurrence calls for preventing the present grand jury

21   from accessing information concerning the identity of the

22   reporters' source(s). ^8  The disclosure of an impending asset

23   freeze and/or search that is communicated to the targets is of

24   serious law enforcement concerns, and there is no suggestion of



                                       28

 1   bad faith in the investigation or conduct of the investigation.

 2        Indeed, as discussed in detail above, the test outlined in

 3   Justice Stewart's Branzburg dissent would be met in the present

 4   case.    The serious law enforcement concerns raised by targets

 5   learning of impending searches because of unauthorized

 6   disclosures to reporters who call the targets easily meets

 7   Justice Stewart's standards of relevance and need.     As also

 8   noted, while it is true that the disclosure of all phone records

 9   over a period of time may exceed the needs of the grand jury, the

10   overbreadth can be cured only if the Times and its reporters

11   agree to cooperate in tailoring the information provided to those

12   needs.    Otherwise, the overbreadth does not defeat the subpoena.

13                                CONCLUSION

14        Accordingly, the judgment of the district court is vacated,

15   and the case is remanded to enter a declaratory judgment in

16   accordance with the terms of this opinion and without prejudice

17   to the district court's redaction of      materials irrelevant to the

18   investigation upon an offer of appropriate cooperation.

19

20




                                      29

1                                FOOTNOTES

2

3   1. Judge Sweet granted summary judgment to the government on the

    Times' claim that the government attorneys in the present matter

    had not complied with DOJ guidelines.    He also dismissed as moot

    the Times' due process claim.    The Times does not appeal from

    these rulings.


    2. The record is unclear as to whether the reporters mentioned

    the searches as well as the asset freezes to the targets.

    However, there is evidence that one of the foundations had a

    lawyer present when agents arrived to begin the search.


    3.   The government relies on Reporters Committee for Freedom of

    the Press v. American Telephone & Telegraph Co., 593 F.2d 1030,

    1048-49 (D.C. Cir. 1978), which suggested that journalists have

    no more First Amendment rights in their toll-call records in the

    hands of third parties than they have in records of third party

    airlines, hotels, or taxicabs.   Under Longshoremen's integral

    role standard, however, third party telephone records may be

    distinguishable from third party travel records.   Telephone lines

    -- which carry voice and facsimile communication ­- are a

    relatively indispensable tool of national or international


                                     30

journalism, and one that requires the service of a third party

provider.    The same is arguably not true of lodging, air travel,

and taxicabs.   Whether such a distinction is valid need not be

determined, however, because Longshoremen's governs this case in

any event.



4.   Understandably, the Times has not argued that identification

of the source(s) by the reporters or the paper would be a

reasonable, alternative means of obtaining the information.



5.   We harbor no doubt whatsoever that, on the present record,

the test adopted by our dissenting colleague for overcoming a

qualified privilege has been satisfied.   Following his

articulation of that test, the following is apparent.     First,

ascertaining the reporters' knowledge of the identity of their

source and of the events leading to the disclosure to the targets

of the imminent asset freezes/searches is clearly essential to an

investigation into the alerting of those targets.   Second, that

knowledge is not obtainable from other sources; even a full

confession by the leaker would leave the record incomplete as to

the facts of, and reasons for, the alerting of the targets.

Third, we know of no sustainable argument that maintaining the

confidentiality of the imminent asset freezes/searches would be

contrary to the public interest; we see no public interest in


                                 31

compelling disclosure of the imminent asset freezes/searches; we

see no public interest in having information on imminent asset

freezes/searches flow to the public, much less to the targets;

and we see no need for further explication of the government's

powerful interest in maintaining the secrecy of imminent asset

freezes/searches.   All of this is obvious on the present record.

Our colleague's arguments to the contrary may be suited to the

paradigmatic case where a newsperson is one of many witnesses to

an event and the actions and state of mind of the newsperson are

not in issue.   See In re Grand Jury Subpoena, Judith Miller, 397

F.3d 964 (D.C. Cir. 2005).   The present case, however, does not

fit the paradigm because, as discussed in the text, the reporters

were active participants in the alerting of the targets.


6. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 970

(D.C. Cir. 2005); United States v. Smith, 135 F.3d 963, 968-69

(5th Cir. 1998); In re Grand Jury Proceedings, 5 F.3d 397, 400

(9th Cir. 1993); In re Grand Jury Proceedings, 810 F.2d 580, 584

(6th Cir. 1987).    The D.C. Circuit noted:

          Unquestionably, the Supreme Court decided in
          Branzburg that there is no First Amendment
          privilege protecting journalists from
          appearing before a grand jury or from
          testifying before a grand jury or otherwise
          providing evidence to a grand jury regardless
          of any confidence promised by the reporter to
          any source. The Highest Court has spoken and
          never revisited the question. Without doubt,
          that is the end of the matter.


                                 32

In re Grand Jury Subpoena, Judith Miller, 397 F.3d at 970.


7.   The government has not stated that a crime has taken place;

at this stage, it is merely investigating the circumstances of

the disclosures that led to the alerting of the targets of the

asset freeze and/or searches.   We need not, therefore, explore

the implications for the Times or its reporters of the privilege

as described by Justice Douglas.


8.   Justice Powell's concurrence suggests that the First

Amendment affords a privilege "if the newsman is called upon to

give information bearing only a remote and tenuous relationship

to the subject of the investigation."   408 U.S. at 710.    The

threatened subpoena thus may be overbroad under the First

Amendment because it will surely yield some information that

bears "only a remote and tenuous relationship" to the

investigation.   As we note elsewhere, however, this overbreadth

problem can be remedied by redaction with the cooperation of the

Times and its reporters.


                                 33

1    The New York Times Co. v. Gonzales,
2    No. 05-2639


3    Sack, Circuit Judge, dissenting:

4               For reasons outlined in Part I below, I agree with much

5    of the majority opinion.   I ultimately disagree with the result

6    the majority reaches, however, and therefore respectfully

7    dissent.

8                                    I.

9               Declaratory judgment can in some circumstances -- and

10   does in these -- serve as a salutary procedural device for

11   testing the propriety of a government attempt to compel

12   disclosure of information from journalists.    It is indeed

13   questionable whether, in the case before us, the plaintiff could

14   have obtained effective judicial review of the validity of the

15   government's proposed subpoena of the plaintiff's phone records

16   without it.   The Court holds today that contrary to the

17   government's view, a member of the press may in appropriate

18   circumstances obtain a declaratory judgment to protect the

19   identity of his or her sources of information in the course of a

20   criminal inquiry.   It makes clear, moreover, that in the grand

21   jury context, such an action need not be brought in a

22   jurisdiction in which the grand jury sits.    I agree.

1               The Court's decision also confirms the ability of

2    journalists to protect the identities of their sources in the

3    hands of third-party communications-service providers -- in this

4    case, one or more telephone companies.   Without such protection,

5    prosecutors, limited only by their own self-restraint, could

6    obtain records that identify journalists' confidential sources in

7    gross and virtually at will.   Reporters might find themselves, as

8    a matter of practical necessity, contacting sources the way I

9    understand drug dealers to reach theirs -- by use of clandestine

10   cell phones and meetings in darkened doorways.   Ordinary use of

11   the telephone could become a threat to journalist and source

12   alike.   It is difficult to see in whose best interests such a

13   regime would operate.

14              More fundamentally still, the Court today reaffirms the

15   role of federal courts in mediating between the interests of law

16   enforcement in obtaining information to assist their discovery

17   and prosecution of violations of federal criminal law, and the

18   interests of the press in maintaining source-confidentiality for

19   the purpose of gathering information for possible public

20   dissemination.   For the question at the heart of this appeal is

21   not so much whether there is protection for the identity of

22   reporters' sources, or even what that protection is, but which

                                     -2-

1    branch of government decides whether, when, and how any such

2    protection is overcome.

3               The parties begin on common ground.   The government

4    does not dispute that journalists require substantial protection

5    from compulsory government processes that would impair the

6    journalists' ability to gather and disseminate the news.    Since

7    1970, two years before the Supreme Court decided Branzburg v.

8    Hayes, 408 U.S. 665 (1972), United States Department of Justice

9    regulations have set forth a departmental policy designed to

10   protect the legitimate needs of the news media in the context of

11   criminal investigations and prosecutions.

12              The Department of Justice guidelines are broadly

13   worded.   The preamble states:

14              Because freedom of the press can be no
15              broader than the freedom of reporters to
16              investigate and report the news, the
17              prosecutorial power of the government should
18              not be used in such a way that it impairs a
19              reporter's responsibility to cover as broadly
20              as possible controversial public issues.
21              This policy statement is thus intended to
22              provide protection for the news media from
23              forms of compulsory process, whether civil or
24              criminal, which might impair the news
25              gathering function.

26   28 C.F.R. § 50.10.   The guidelines require that "the approach in

27   every case must be to strike the proper balance between the

28   public's interest in the free dissemination of ideas and

29   information and the public's interest in effective law



                                      -3-

1    enforcement and the fair administration of justice," id.

2    § 50.10(a); that "[a]ll reasonable attempts should be made to

3    obtain information from alternative sources before considering

4    issuing a subpoena to a member of the news media," id.

5    § 50.10(b); and that "[i]n criminal cases, [before a subpoena is

6    served on a member of the media,] there should be reasonable

7    grounds to believe, based on information obtained from nonmedia

8    sources, that a crime has occurred, and that the information

9    sought is essential to a successful investigation--particularly

10   with reference to directly establishing guilt or innocence.    The

11   subpoena should not be used to obtain peripheral, nonessential,

12   or speculative information," id. § 50.10(f)(1).

13             In 1980, the guidelines were extended to provide that

14   "all reasonable alternative investigative steps should be taken

15   before considering issuing a subpoena for telephone toll records

16   of any member of the news media."    Id.   Subsection (g) of the

17   guidelines reads in part:

18             In requesting the Attorney General's
19             authorization for a subpoena for the
20             telephone toll records of members of the news
21             media, the following principles will apply:
22             (1) There should be reasonable ground to
23             believe that a crime has been committed and
24             that the information sought is essential to
25             the successful investigation of that crime.
26             The subpoena should be as narrowly drawn as
27             possible; it should be directed at relevant

                                    -4-

1               information regarding a limited subject
2               matter and should cover a reasonably limited
3               time period. In addition, prior to seeking
4               the Attorney General's authorization, the
5               government should have pursued all reasonable
6               alternative investigation steps as required
7               by paragraph (b) of this section [quoted
8               above].

9               ....

10   Id. § 50.10(g).

11              The government has made clear that it considers itself

12   bound by these guidelines, see, e.g., Gov't Br. at 63, and

13   asserts that it has abided by them in this case, see, e.g., id.;

14   Letter of James Comey, Deputy Attorney General, to Floyd Abrams,

15   attorney for the plaintiff, dated Sept. 23, 2004 (referring to

16   the Department as "[h]aving diligently pursued all reasonable

17   alternatives out of regard for First Amendment concerns, and

18   having adhered scrupulously to Department policy").

19              While the government argues strenuously that the

20   Department's guidelines do not create a judicially enforceable

21   privilege, ^1 the substantive standards that they establish as

22   Department policy are strikingly similar to the reporter's

23   privilege as we have articulated it from time to time.     For

24   example, in In re Petroleum Products Antitrust Litigation, 680

25   F.2d 5, 7-8 (2d Cir.) (per curiam) (civil case), cert. denied,

          1
              The plaintiff does not argue otherwise on this appeal.

                                     -5-

1    459 U.S. 909 (1982) (quoted by the majority, ante at [20]), we

2    said:   "[D]isclosure [of the identity of a confidential source]

3    may be ordered only upon a clear and specific showing that the

4    information is: highly material and relevant, necessary or

5    critical to the maintenance of the claim, and not obtainable from

6    other available sources."   This is also the standard urged upon

7    us by the plaintiff and apparently adopted by the district court.

8    See N.Y. Times Co. v. Gonzales, 382 F. Supp. 2d 457 (S.D.N.Y.

9    2005) ("N.Y. Times") (passim).    The guidelines' test is thus very

10   much like the test that the plaintiff asks us to apply.

11              The primary dispute between the parties, then, is not

12   whether the plaintiff is protected in these circumstances, or

13   what the government must demonstrate to overcome that protection,

14   but to whom the demonstration must be made.     The government tells

15   us that under Branzburg, "except in extreme cases of

16   [prosecutorial] bad faith," Tr. of Oral Argument, Feb. 13, 2006,

17   at 12, federal courts have no role in monitoring its decision as

18   to how, when, and from whom federal prosecutors or a federal

19   grand jury can obtain information.     Apparently based on that

20   supposition, the government did not make a serious attempt to

21   establish to the district court's satisfaction that the standard

22   for requiring disclosure had been met.     Neither has it argued

                                      -6-

1    forcefully to us that it in fact did so. ^2 For example, with

2    respect to the government's assertion that it has "pursued all

3    reasonable alternative investigation steps" to source disclosure

4    (guidelines formulation) or that the information it needs is "not

5    obtainable from other available sources" (Petroleum Products

6    formulation), the government tells us only that:

7              The Affirmation of the United States Attorney
8              for the Northern District of Illinois, who
9              was personally involved in conducting, and
10             responsible for supervising, the ongoing
11             grand jury investigation, stated that "the
12             government had reasonably exhausted
13             alternative investigative means," and that
14             the Attorney General of the United States had
15             authorized the issuance of the challenged
16             subpoenas pursuant to the DOJ Guidelines.

17     Gov't Br. at 63. ^3  The government thus takes the position that it

18   is entitled to obtain the Times' telephone records in order to

19   determine the identity of its reporters' confidential sources

          2
             Only the last six and a half pages of its sixty-six page
     brief to us address the plaintiff's contention that the
     government has not met the burden.
          3
             The government has repeatedly asserted that it has in
     fact exhausted alternative sources for obtaining the information
     it needs, but has not told us how it has done so. See Gov't Br.
     at 63-64; Affirmation of Patrick Fitzgerald, dated Nov. 19, 2004,
     at 5; id. at 5, n.18; Letter of Patrick Fitzgerald to Solomon
     Watson, General Counsel, The New York Times Company, dated July
     12, 2004, at 2.

                                     -7-

1    because it has satisfied itself that the applicable standard has

2    been met.

3                I do not think, and I read the majority opinion to

4    reject the proposition, that the executive branch of government

5    has that sort of wholly unsupervised authority to police the

6    limits of its own power under these circumstances.    As Judge

7    Tatel, concurring in judgment in In re Grand Jury Subpoena,

8    Judith Miller, 397 F.3d 964 (D.C. Cir.) ("In re Grand Jury

9    Subpoena"), cert. denied, 125 S. Ct. 2977 (2005), reissued as

10   amended, 438 F.3d 1141 (D.C. Cir. 2006), observed not long ago:

11               [T]he executive branch possesses no special
12               expertise that would justify judicial
13               deference to prosecutors' judgments about the
14               relative magnitude of First Amendment
15               interests. Assessing those interests
16               traditionally falls within the competence of
17               courts. Indeed, while the criminality of a
18               leak and the government's decision to press
19               charges might well indicate the leak's
20               harmfulness -- a central concern of the
21               balancing test -- once prosecutors commit to
22               pursuing a case they naturally seek all
23               useful evidence. Consistent with that
24               adversarial role, the Federal Rules of
25               Evidence assign to courts the function of
26               neutral arbiter: "Preliminary questions
27               concerning the qualification of a person to
28               be a witness, the existence of a privilege,
29               or the admissibility of evidence shall be
30               determined by the court." Fed. R. Evid.
31               104(a) (emphasis added). Accordingly, just
32               as courts determine the admissibility of
33               hearsay or the balance between probative

                                      -8-

1                value and unfair prejudice under Rule 403, so
2                with respect to this issue must courts weigh
3                factors bearing on the privilege.

4                Moreover, in addition to these principles
5                applicable to the judicial role in any
6                evidentiary dispute, the dynamics of leak
7                inquiries afford a particularly compelling
8                reason for judicial scrutiny of prosecutorial
9                judgments regarding a leak's harm and news
10               value. Because leak cases typically require
11               the government to investigate itself, if
12               leaks reveal mistakes that high-level
13               officials would have preferred to keep
14               secret, the administration may pursue the
15               source with excessive zeal, regardless of the
16               leaked information's public value.

17   438 F.3d at 1175-76 (citations omitted).

18               In concluding that insofar as there is an applicable

19   reporter's privilege, it has been overcome in this case, Judge

20   Winter's opinion makes clear that the government's demonstration

21   of "necessity" and "exhaustion" must, indeed, be made to the

22   courts, not just the Attorney General. ^4 The majority believes,

23   wrongly in my view, that the standard has been satisfied in this

24   case.    But that is a far cry from the government's position that

25   the Court's satisfaction is irrelevant.

26               The government relies primarily on Branzburg to support

27   its view that the First Amendment provides journalists no


          4
             In this case, then-Deputy Attorney General James Comey.
     The Attorney General had recused himself.

                                      -9-

1    judicially enforceable rights as against grand jury subpoenas.

2    The government's reading of Branzburg is simply wrong.     The

3    Branzburg Court did not say that a court's role is limited to

4    guarding against "extreme cases of prosecutorial bad faith," nor

5    was the burden of its message that prosecutors can decide for

6    themselves the propriety of grand jury subpoenas.   Even in the

7    context of its examination of First Amendment protections, it

8    said that "the powers of the grand jury are not unlimited and are

9    subject to the supervision of a judge," 408 U.S. at 688, and that

10   "this system is not impervious to control by the judiciary," id.

11   at 698.   The concluding portion of Justice White's opinion for

12   the Branzburg Court noted that "[g]rand juries are subject to

13   judicial control and subpoenas to motions to quash.   We do not

14   expect courts will forget that grand juries must operate within

15   the limits of the First Amendment as well as the Fifth."     Id. at

16   708.   And, in affirming the judgment of the Supreme Judicial

17   Court of Massachusetts in one of the cases before it, the Court

18   noted that the duty of the reporter to testify on remand was

19   "subject, of course, to the supervision of the presiding judge as

20   to the propriety, purposes, and scope of the grand jury inquiry

21   and the pertinence of the probable testimony" under Massachusetts

22   law.   Id. at 709 (internal quotation marks and citation omitted).

                                    -10-

1               If there were any doubt on this point, Justice Powell,

2    who cast the deciding vote for the Court, dispelled it.    He

3    referred, in his concurring opinion, to the "concluding portion

4    of [Justice White's] opinion," id., portions of which are quoted

5    above.   Justice Powell wrote:

6               [T]he Court states that no harassment of
7               newsmen will be tolerated. If a newsman
8               believes that the grand jury investigation is
9               not being conducted in good faith he is not
10              without remedy. Indeed, if the newsman is
11              called upon to give information bearing only
12              a remote and tenuous relationship to the
13              subject of the investigation, or if he has
14              some other reason to believe that his
15              testimony implicates confidential source
16              relationships without a legitimate need of
17              law enforcement, he will have access to the
18              court on a motion to quash and an appropriate
19              protective order may be entered. The
20              asserted claim to privilege should be judged
21              on its facts by the striking of a proper
22              balance between freedom of the press and the
23              obligation of all citizens to give relevant
24              testimony with respect to criminal conduct.

25   Id. at 709-10 (Powell, J., concurring).

26              We have since written "that the Supreme Court's

27   decision in [Branzburg] recognized the need [for the courts] to

28   balance First Amendment values even where a reporter is asked to

29   testify before a grand jury."    United States v. Burke, 700 F.2d

30   70, 77 (2d Cir.) (citing Baker v. F&F Invs., 470 F.2d 778, 784-85

31   (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 (1973)), cert.

                                      -11-

1    denied, 464 U.S. 816 (1983); see also United States v. Cutler, 6

2    F.3d 67, 71 (2d Cir. 1993) (noting the Branzburg Court's

3    commentary that "[w]e do not expect courts will forget that grand

4    juries must operate within the limits of the First Amendment as

5    well as the Fifth." (quoting Branzburg, 408 U.S. at 708));

6    Gonzales v.   Nat'l Broad. Co., 194 F.3d 29, 34 (2d Cir. 1998)

7    (characterizing United States v. Cutler as "proceed[ing] on the

8    assumption that, despite the nonconfidential nature of the

9    information sought [from members of the media by a government

10   subpoena in a criminal context], a qualified journalists'

11   privilege applied, and the defendant had to show [to the district

12   court] a sufficient need for the information to overcome the

13   privilege"); cf. In re Grand Jury Subpoena, 438 F.3d at 1164

14   (Tatel, J., concurring in judgment) ("[G]iven that any witness --

15   journalist or otherwise -- may challenge [an 'unreasonable or

16   oppressive'] subpoena, the [Branzburg,] majority must have meant,

17   at the very least, that the First Amendment demands a broader

18   notion of 'harassment' for journalists than for other witnesses."

19   (quoting Fed. R. Crim. P. 17(c)(2))).

20             Of course, Branzburg's core holding places serious, if

21   poorly defined, limits on the First Amendment protections that

22   reporters can claim in the grand jury context.   But, as the

23   majority implicitly acknowledges by treating them and the common


                                    -12-

1    law privilege separately, any limits on the constitutional

2    protection imposed by Branzburg do not necessarily apply to the

3    common law privilege under Federal Rule of Evidence 501.     See In

4    re Grand Jury Subpoena, 438 F.3d at 1160 (Henderson, J.,

5    concurring) ("[W]e are not bound by Branzburg's commentary on the

6    state of the common law in 1972."); id. at 1166 (Tatel, J.,

7    concurring in judgment) ("Given Branzburg's instruction that

8    'Congress has freedom to determine whether a statutory newsman's

9    privilege is necessary and desirable and to fashion standards and

10   rules as narrow or broad as deemed necessary to deal with the

11   evil discerned,' Rule 501's [subsequent] delegation of

12   congressional authority requires that we look anew at the

13   'necessity and desirability' of the reporter privilege -- though

14   from a common law perspective." (quoting Branzburg, 408 U.S. at

15   706 (alterations incorporated))).    The majority's primary focus

16   on the common law privilege, as interpreted by Jaffee v. Redmond,

17   518 U.S. 1 (1996), therefore appears to me to be appropriate.

18                                  II.

19             To explain why I disagree with the majority's

20   conclusion that we "need not decide whether a common law

21   privilege exists because any such privilege would be overcome as

22   a matter of law on the present facts," ante at [3], I must set

23   forth in some detail why I think a privilege is applicable and

24   what protection I think it affords.

                                   -13-

1              It is self-evident that law enforcement cannot function

2    unless prosecutors have the ability to obtain, coercively if

3    necessary, relevant and material information.   As the district

4    court put it, "[i]t is axiomatic that, in seeking such testimony

5    and evidence, the prosecutor acts on behalf of the public and in

6    furtherance of the 'strong national interest in the effective

7    enforcement of its criminal laws.'   United States v. Davis, 767

8    F.2d 1025, 1035 (2d Cir. 1985) (citations omitted)."   N.Y. Times,

9    382 F. Supp. 2d at 463.

10             The vital role the grand jury plays in the process is

11   also indisputable.

12             [T]he grand jury, a body "deeply rooted in
13             Anglo-American history" and guaranteed by the
14             Fifth Amendment, see United States v.
15             Calandra, 414 U.S. 338, 342-43 (1974), holds
16             "broad powers" to collect evidence through
17             judicially enforceable subpoenas. See United
18             States v. Sells Eng'g, Inc., 463 U.S. 418,
19             423-24 (1983). "Without thorough and
20             effective investigation, the grand jury would
21             be unable either to ferret out crimes
22             deserving of prosecution, or to screen out
23             charges not warranting prosecution." Id. at
24             424.
25   In re Grand Jury Subpoena, 438 F.3d at 1163 (Tatel, J.,

26   concurring in judgment).

27             At the same time, it can no longer be controversial

28   that to perform their critical function, journalists must be able

29   to maintain the confidentiality of sources who seek so to be

                                   -14-

1    treated -- reliably, if not absolutely in each and every case.

2    As this Court recognized early on:

3              Compelled disclosure of confidential sources
4              unquestionably threatens a journalist's
5              ability to secure information that is made
6              available to him only on a confidential
7              basis . . . . The deterrent effect such
8              disclosure is likely to have upon future
9              "undercover" investigative reporting . . .
10             threatens freedom of the press and the
11             public's need to be informed. It thereby
12             undermines values which traditionally have
13             been protected by federal courts applying
14             federal public policy to be followed in each
15             case.
16   Baker, 470 F.2d at 782.   As we later remarked, the Baker Court

17   "grounded the qualified privilege [protecting journalists'

18   sources] in a broader concern for the potential harm to

19   'paramount public interest in the maintenance of a vigorous,

20   aggressive and independent press capable of participating in

21   robust, unfettered debate over controversial matters.'"     Nat'l

22   Broad. Co., 194 F.3d at 33 (quoting Baker, 470 F.2d at 782).

23   "The necessity for confidentiality [is] essential to fulfillment

24   of the pivotal function of reporters to collect information for

25   public dissemination."    Petroleum Prods., 680 F.2d at 8; see also

26   N.Y. Times, 382 F. Supp. 2d at 465, 469-71 (reviewing the

27   evidence before the court with respect to need for these

28   plaintiff's reporters in this case to be able to protect the

29   identity of their sources in order to report effectively).

                                     -15-

1              As Professor Alexander Bickel put it in the wake of

2    Branzburg:

3              Indispensable information comes in confidence
4              from officeholders fearful of competitors,
5              from informers operating at the edge of the
6              law who are in danger of reprisal from
7              criminal associates, from people afraid of
8              the law and of government -- sometimes
9              rightly afraid, but as often from an excess
10             of caution -- and from men in all fields
11             anxious not to incur censure for unorthodox
12             or unpopular views . . . . Forcing reporters
13             to divulge such confidences would dam the
14             flow to the press, and through it to the
15             people, of the most valuable sort of
16             information: not the press release, not the
17             handout, but the firsthand story based on the
18             candid talk of a primary news source. . . .
19             [T]he disclosure of reporters' confidences
20             will abort the gathering and analysis of
21             news, and thus, of course, restrain its
22             dissemination. The reporter's access is the
23             public's access.

24   Alexander Bickel, "Domesticated Disobedience," The Morality of

25   Consent 84-85 (1975) (emphasis in original) (hereinafter "The

26   Morality of Consent"). ^5

27             Beginning no later than our own opinion in Baker,

28   supra, which was decided several months after Branzburg, courts

29   and legislatures throughout the country turned to this issue,


          5
             Professor Bickel represented amici on the losing side in
     Branzburg. He represented the successful petitioner in "The
     Pentagon Papers Case", N.Y. Times Co. v. United States, 403 U.S.
     713 (1971). See The Morality of Consent, 61 n.6 & 84 n.38.
                                   -16-

1    many for the first time.    They assessed the needs of effective

2    law enforcement and effective news gathering, seeking to resolve

3    as best they could the tension between them.    Although the

4    solutions crafted tended to be similar, they were not entirely

5    uniform -- one could hardly expect to find uniformity among

6    thirty-one state legislatures ^6 and myriad state and federal

7    courts that established, or confirmed the existence of, a

8    qualified privilege for journalists to protect the identity of

9    their sources. ^7  But they all-but-universally agreed that

10   protection there must be.    For the reasons set forth in great

11   detail in both the seminal opinion of Judge Tatel in In re Grand

12   Jury Subpoena and in the opinion of the district court here, I

13   have no doubt that there has been developed in those thirty-four

14   years federal common-law protection for journalists' sources


          6
             The statutes are enumerated in the district court's
     opinion. See N.Y. Times, at 382 F. Supp. 2d at 502 & n.34. More
     recently, Connecticut enacted such a law. See Conn. Public Act
     No. 06-140 (June 6, 2006) (effective Oct. 1, 2006); see also
     Lobbyist Argues against 'Shield' Laws for Media, Tech. Daily, May
     5, 2006; Christopher Keating & Elizabeth Hamilton, A Deal at
     Last, The Hartford Courant, May 4, 2006, at A1.
          7
             Judge Tatel referred to "the laws of forty-nine states
     and the District of Columbia, as well as federal courts and the
     federal government." In re Grand Jury Subpoena, 438 F.3d at 1172
     (Tatel, J., concurring in judgment).
                                     -17-

1    under Federal Rule of Evidence 501 ^8 as interpreted by Jaffee.

2    The district court here succinctly outlined the factors in Jaffee

3    a court should use in determining whether such a privilege

4    exists:

5              (1) whether the asserted privilege would
6              serve significant private interests; (2)
7              whether the privilege would serve significant
8              public interests; (3) whether those interests
9              outweigh any evidentiary benefit that would
10             result from rejection of the privilege
11             proposed; and (4) whether the privilege has
12             been widely recognized by the states. See
13             Jaffee, 518 U.S. at 10-13.

14   N.Y. Times, 382 F. Supp. 2d at 494.   A qualified journalists'

15   privilege seems to me easily -- even obviously -- to meet each of

16   those qualifications.   The protection exists.   It is palpable; it

17   is ubiquitous; it is widely relied upon; it is an integral part


          8
             Rule 501, adopted three years after Branzburg, in 1975,
             reads in pertinent part:
               Except as otherwise required by the
               Constitution of the United States or provided
               by Act of Congress or in rules prescribed by
               the Supreme Court pursuant to statutory
               authority, the privilege of a witness,
               person, government, State, or political
               subdivision thereof shall be governed by the
               principles of the common law as they may be
               interpreted by the courts of the United
               States in the light of reason and experience.
                                    -18-

1    of the way in which the American public is kept informed and

2    therefore of the American democratic process. ^9

3              The precise words in which this journalist's privilege

4    is stated differ from jurisdiction to jurisdiction.   Our

5    formulation of it in Petroleum Products quoted above is typical:

6    "[D]isclosure may be ordered only upon a clear and specific

7    showing that the information is: highly material and relevant,

8    necessary or critical to the maintenance of the claim, and not

9    obtainable from other available sources."   Petroleum Prods., 680

10   F.2d at 7-8 (citing, inter alia, Zerilli v. Smith, 656 F.2d 705,

11   713-15 (D.C. Cir. 1981) and Silkwood v. Kerr-McGee Corp., 563

12   F.2d 433, 438 (10th Cir. 1977)). ^10


          9
             Laws protecting confidential sources are hardly unique to
     the United States. See, e.g., Goodwin v. U.K., 22 E.H.R.R. 123
     (1996) (European Ct. of Human Rights) (interpreting Article X of
     the European Convention on Human Rights as requiring legal
     protection for press sources).

          10
             The "exhaustion" requirement -- "not obtainable from
     other available sources" -- harks back to what seems to be our
     first foray into this subject, Garland v. Torre, 259 F.2d 545 (2d
     Cir. 1958), written by then-Sixth Circuit Judge Potter Stewart,
     sitting by designation. (Fourteen years later, by-then-Justice
     Stewart wrote the principal dissent in Branzburg.) This Court
     held, inter alia, that at that time there was no common law
     reporter's privilege. Indeed there was little upon which one
     might then have been found. We nonetheless noted, "While it is
     possible that the plaintiff could have learned the identity of
     the informant by further discovery proceedings directed to [the
     company of which the source was said to be an official], her
                                    -19-

1              This qualified privilege has successfully accommodated

2    the legitimate interests of law enforcement and the press for

3    more than thirty years.   That it serves the needs of law

4    enforcement is attested to by the Department of Justice's

5    guidelines themselves.    As noted, they establish protection for

6    journalists' sources in terms similar to the qualified privilege,

7    albeit as a matter of self-restraint rather than legal

8    obligation.   If adhering to that standard hobbled law

9    enforcement, it is difficult to imagine that the Department of

10   Justice would have retained it -- indeed, have expanded its

11   coverage -- over the course of more than three-and-a-half


     reasonable efforts in that direction had met with singular lack
     of success." Id. at 551.    In Baker, we said about Torre: "In
     view of the[] denials [by witnesses that they were Torre's
     source], the identity of Miss Torre's source became essential to
     the libel action: in the words of this Court, it 'went to the
     heart of the plaintiff's claim.' [Torre,] 259 F.2d at 550.
     Appellants in this case [i.e., Baker], however, have not
     demonstrated that the identity of [the reporter]'s confidential
     source is necessary, much less critical, to the maintenance of
     their civil rights action." Baker, 470 F.2d at 784.
               The Torre case is also remembered for another reason:
     Ms. Torre famously served a short jail sentence for contempt
     rather than reveal the identity of her confidential source. See
     Nick Ravo, Marie Torre, 72, TV Columnist Jailed for Protecting
     News Source (obituary), N.Y. Times, Jan. 5, 1997, at Sec. 1, p.
     24, Col. 5. A noteworthy aspect of the current litigation is
     that, because the source identifying information is in the hands
     of one or more third party telephone providers, the reporters
     here do not have the option of similarly responding to an order
     of the Court.
                                     -20-

1    decades.   And the flourishing state "shield" statutes indicate

2    that similar state-law protection has not interfered with

3    effective law enforcement at the state level.    That it works for

4    the press, meanwhile, is demonstrated by "the dog that did not

5    bark" ^11 -- the paucity (not to say absence) of cases in the many

6    years between Branzburg and In re Grand Jury Subpoena in which

7    reporters have indeed been ordered to disclose their confidential

8    sources.

9               As we observed in National Broadcasting Co., without

10   requiring lawyers to seek alternative sources before permitting

11   them to subpoena the press for the information, "it would likely

12   become standard operating procedure for those litigating against

13   an entity that had been the subject of press attention to sift

14   through press files in search of information supporting their

15   claims."   Nat'l Broad. Co., 194 F.3d at 35.    But little of what

16   reporters learn is obtained first hand.    Most is, in a broad

17   sense, told to them by others.    Most is, therefore, "hearsay"

18   when published.   When the government seeks information in a

19   reporter's possession, there is almost always someone other than


          11
             See A. Conan Doyle, Silver Blaze, in The Memoirs of
     Sherlock Holmes 58 (1948) (cited in Frederick Schauer, Symposium:
     Defamation in Fiction: Liars, Novelists, and the Law of
     Defamation, 51 Brook. L. Rev. 233, 241 & n.38 (1985)).
                                      -21-

1    the reporter and somewhere other than the newsroom from whom or

2    from which to obtain it.   Under the qualified privilege, a lawyer

3    -- for the government or another party -- engaged in litigation

4    of any sort who thinks he or she needs information in a

5    journalist's possession, usually can, and then, under the

6    qualified privilege, therefore must, obtain it elsewhere.

7    "[W]hen prosecuting crimes other than leaks (murder or

8    embezzlement, say) the government, at least theoretically, can

9    learn what reporters know by replicating their investigative

10   efforts, e.g., speaking to the same witnesses and examining the

11   same documents."   In re Grand Jury Subpoena, 438 F.3d at 1174

12   (Tatel, J., concurring in judgment).   Except in those rare cases

13   in which the reporter is a witness to a crime, ^12 his or her


          12
             As was alleged to be the case in each of the three cases
     that comprise Branzburg. See Branzburg, 408 U.S. at 668-72, 675-
     76; Branzburg v. Pound, 461 S.W.2d 345 (1970) (the reporter
     personally observed the production of hashish and the sale and
     use of marijuana); In re Pappas, 358 Mass. 604, 266 N.E. 2d 297
     (1971) (the reporter witnessed criminal acts committed by members
     of the Black Panthers during a period of civil disorder in New
     Bedford, Massachusetts), United States v. Caldwell, 434 F.2d 1081
     (9th Cir. 1970) (reporter thought to have witnessed assassination
     threats against the President, mail fraud, attempt or conspiracy
     to assassinate the President, and civil disorder on the part of
     the Black Panthers).
                                    -22-

1     testimony is therefore very rarely essential ^13 and very rarely

2    compelled.

3                                   III.

4              The safeguard that has worked well over the years is,

5    however, incomplete when it is applied in "leak" inquiries such

6    as those at issue here and in In re Grand Jury Subpoena.   Before

7    inquiring as to why, it is worth noting that the use of the term

8    "leak" to identify unauthorized disclosures in this context may

9    be unhelpful.   It misleadingly suggests a system that is broken.

10   Some unauthorized disclosures may be harmful indeed. ^14 But

11   others likely contribute to the general welfare ^15 -- frequently,

12   I suspect, by improving the functioning of the very agencies or

13   other entities from which they came.   Secretive bureaucratic


          13
             See The Morality of Consent, at 84-85: "Obviously the
     occasions when a reporter will witness a so-called natural crime
     in confidence, and the occasions when he will find it conformable
     to his own ethical and moral standards to withhold information
     about such a crime are bound to be infinitesimally few."
          14
             "Leaks similar to the crime suspected [in In re Grand
     Jury Subpoena] (exposure of a covert agent) apparently caused the
     deaths of several CIA operatives in the late 1970s and early
     1980s, including the agency's Athens station chief." In re Grand
     Jury Subpoena, 438 F.3d at 1173 (Tatel, J., concurring in
     judgment).
          15
             "For example, assuming [Judith] Miller's prize-winning
     Osama bin Laden series caused no significant harm, I find it
     difficult to see how one could justify compelling her to disclose
     her sources, given the obvious benefit of alerting the public to
     then-underappreciated threats from al Qaeda." Id. at 1174.
                                    -23-

1    agencies, like hermetically sealed houses, often benefit from a

2    breath of fresh air. ^16 As Judge Tatel explained, "although

3    suppression of some leaks is surely desirable . . . , the public

4    harm that would flow from undermining all source relationships

5    would be immense."   In re Grand Jury Subpoena, 438 F.3d at 1168

6    (Tatel, J., concurring in judgment).

7              The "disorderly system," The Morality of Consent 80

8    (1975), by and large and until recently, allowed government (and

9    other entities jealous of their confidential information) to keep

10   secrets the way most of us keep ours: by not disclosing them, ^17

11   by employing people who will not disclose them, and by using

12   other means to protect them.   If the secret was kept, as we

13   presume it usually was (though we obviously have no way to be

14   sure), the secret was safe.    If secrets escaped, the government

15   could investigate within its own precincts to determine who was

16   responsible.   Once disclosed, however, for better or worse, the

17   secret was a secret no longer, and that, for press and the

18   public, was the end of the matter.

          16
             "Sunlight is said to be the best of disinfectants;
     electric light the most efficient policeman." Attributed to
     Louis Brandeis, Other People's Money 62 (Nat'l Home Library
     Foundation ed. 1933), in Buckley v. Valeo, 424 U.S. 1, 67 (1976)
     (per curiam).
          17
             Within the limitations set by freedom of information and
     other disclosure laws, of course.
                                     -24-

1              This is not to say, of course, that the government

2    never declassifies material in the interest of public discourse,

3    or that an editor never declines to publish matters of public

4    interest because in his or her view, with or without consultation

5    with the government, greater injury to the public will likely be

6    occasioned by doing so.   Professor Bickel, who described this

7    "system," put it first and probably best:

8              Not everything is fit to print. There is to
9              be regard for at least probable factual
10             accuracy, for danger to innocent lives, for
11             human decencies, and even, if cautiously, for
12             nonpartisan considerations of the national
13             interest. . . . But I should add that as I
14             conceive the contest established by the First
15             Amendment, and as the Supreme Court of the
16             United States appeared to conceive it in the
17             Pentagon Papers case [New York Times Co. v.
18             United States, 403 U.S. 713 (1971)], the
19             presumptive duty of the press is to publish,
20             not to guard security or to be concerned with
21             the morals of its sources.

22   The Morality of Consent 81. ^18

23             The result is a healthy adversarial tension between the

24   government, which may seek to keep its secrets within the law

25   irrespective of any legitimate interest the public may have in


          18
             Although stories about the instances of secrets that the
     press has known and kept are published from time to time, see,
     e.g., Scott Shane, A History of Publishing, and Not Publishing,
     Secrets, N.Y. Times, July 2, 2006, at Sec. 4., p. 4, Col. 1, it
     seems to me obvious that an unknowably large bulk of such secrets
     are not recounted in these stories precisely because in those
     instances the press chose to maintain the secrecy.
                                    -25-

1    knowing them, and the press, which may endeavor to, but is

2    usually not entitled to, obtain and disseminate that information.

3              The government is entitled to keep things
4              private and will attain as much privacy as it
5              can get away with politically by guarding its
6              privacy internally; but with few exceptions
7              involving the highest probability of very
8              grave consequences, it may not do so
9              effectively. It is severely limited as to
10             means, being restricted, by and large, to
11             enforcing security at the source. . . .
12             [T]he power to arrange security at the
13             source, looked at in itself, is great, and if
14             it were nowhere countervailed it would be
15             frightening -- is anyway, perhaps -- since
16             the law in no wise guarantees its prudent
17             exercise or even effectively guards against
18             its abuse. But there is a countervailing
19             power. The press, by which is meant anybody,
20             not only the institutionalized print and
21             electronic press, can be prevented from
22             publishing only in extreme and quite dire
23             circumstances.
24   Id. at 79-80 (emphasis in original).
25             [W]e are content, in the contest between
26             press and government, with the pulling and
27             hauling, because in it lies the optimal
28             assurance of both privacy and freedom of
29             information. Not full assurance of either,
30             but maximum assurance of both.
31             Madison knew the secret of [it], indeed he
32             invented it. The secret is the separation
33             and balance of powers, men's ambition joined
34             to the requirements of their office, so that
35             they push those requirements to the limit,
36             which in turn is set by the contrary
37             requirements of another office, joined to the
38             ambition of other men. This is not an
39             arrangement whose justification is


                                   -26-

1              efficiency, logic, or clarity. Its
2              justification is that it accommodates power
3              to freedom and vice versa. It reconciles the
4              irreconcilable.
5              . . . . [I]t is the contest that serves the
6              interest of society as a whole, which is
7              identified neither with the interest of the
8              government alone nor of the press. The best
9              resolution of this contest lies in an untidy
10             accommodation; like democracy, in Churchill's
11             aphorism, it is the worst possible solution,
12             except for all the other ones. It leaves too
13             much power in government, and too much in the
14             institutionalized press,[^19] too much power
15             insufficiently diffused, indeed all too
16             concentrated, both in government and in too
17             few national press institutions, print and
18             electronic. The accommodation works well
19             only when there is forbearance and continence
20             on both sides. It threatens to break down
21             when the adversaries turn into enemies, when
22             they break diplomatic relations with each
23             other, gird for and wage war . . . .
24   Id. at 86-87.

25                                   IV.

26             But as this litigation bears witness, the system is not

27   altogether self-regulating.   When the "untidy accommodation"

28   between the press and the government breaks down, and the

29   government seeks to use legal coercion against the press to

30   identify its sources in and around government, the qualified

          19
             Whether the changes in "the institutional press" in the
     age of the internet or the rise of global terrorism more than
     thirty years since Professor Bickel wrote would in any way change
     his analysis we can, of course, only guess.
                                    -27-

1    reporter's privilege described in Petroleum Products and similar

2    cases may be inadequate to restore the balance.    In "leak"

3    investigations, unlike in the typical situations with which

4    courts have dealt over the years, the reporter is more than a

5    third-party repository of information.    He or she is likely an

6    "eyewitness" to the crime, alleged crime, potential crime, or

7    asserted impropriety.     Once the prosecution has completed an

8    internal investigation of some sort, therefore, it may be in a

9    position to overcome the classic reporter's privilege because it

10   may well be able to make "a clear and specific showing that the

11   information [i.e., the identity of the source] is: highly

12   material and relevant, necessary or critical to the maintenance

13   of the claim [that someone known or unknown "leaked" the

14   information to a reporter], and not obtainable from other

15   available sources."     Petroleum Prods., 680 F.2d at 7-8.

16             It seems clear to me that such a result does not strike

17   the proper balance between the needs of law enforcement and of

18   the press because, typically, it strikes no balance at all.  The

19   government can argue persuasively that the "leak" cannot be

20   plugged without disclosure of the "leaker"/source by the

21   recipient reporter.

22             Recognizing this, Judge Tatel suggested revising the

23   traditional qualified privilege so that the court must also
                                      -28-

1   "weigh the public interest in compelling disclosure, measured by

2   the harm the leak caused, against the public interest in

3   newsgathering, measured by the leaked information's value."   In

4   re Grand Jury Subpoena, 438 F.3d at 1175 (Tatel, J., concurring

5   in judgment). ^20 This


         20
            A bill introduced by Sen. Richard Lugar (R-Ind.),
    Chairman of the Senate Foreign Relations Committee, with
    Judiciary Committee Chairman Sen. Arlen Specter (R-Penn.), Sen.
    Christopher Dodd (D-Conn.), Sen. Lindsey Graham (R-S.C.) and Sen.
    Chuck Schumer (D-N.Y.) -- The "Free Flow of Information Act of
    2006" -- is interesting in this regard. S. 2831, 109th Cong., §
    4 (2006). Under it, a journalist's disclosure of, among other
    things, the identity of a confidential source

              may be ordered only if a court, after
              providing the journalist . . . notice and an
              opportunity to be heard, determines by clear
              and convincing evidence that,
              (1) the attorney for the United States has
              exhausted alternative sources of the
              information;
              (2) to the extent possible, the subpoena--
                   (A) avoids requiring production of a
                   large volume of unpublished material;
                   and
                   (B) is limited to--
                        (i) the verification of published
                        information; and
                        (ii) surrounding circumstances
                        relating to the accuracy of the
                        published information;
              (3) the attorney for the United States has
              given reasonable and timely notice of a
              demand for documents;
              (4) nondisclosure of the information would be
              contrary to the public interest, taking into
              account both the public interest in
              compelling disclosure and the public interest
              in newsgathering and maintaining a free flow
              of information to citizens;
              (5) there are reasonable grounds, based on an
              alternative, independent source, to believe
                                  -29-

1    may in some circumstances involve a substantive determination of

2    "whether [the reporters'] sources released information more

3    harmful than newsworthy.    If so, then the public interest in

4    punishing the wrongdoers -- and deterring future leaks --

5    outweighs any burden on newsgathering, and no privilege covers

6    the communication . . . ."     Id. at 1178.

7              One could quibble with the precise wording that Judge

8    Tatel employed.   I think I might prefer something closer to the

9    Senate bill's formulation: whether "nondisclosure of the

10   information would be contrary to the public interest, taking into

11   account both the public interest in compelling disclosure and the

12   public interest in newsgathering and maintaining a free flow of

13   information to citizens."    Free Flow of Information Act, S. 2831,

14   109th Cong., § 4(b)(4) (2006).    But without some such adjustment

15   of the privilege in these circumstances, it threatens to become


               that a crime has occurred, and that the
               information sought is critical to the
               investigation or prosecution, particularly
               with respect to directly establishing guilt
               or innocence; and
               (6) the subpoena is not being used to obtain
               peripheral, nonessential, or speculative
               information.

     Id. § 4(b) (emphasis added).
               I quote the proposed language not, of course, because
     it is the law -- obviously it is not and may never be -- but
     because the use of the emphasized language indicates concern on
     the part of the Senators with precisely the problem that we
     address here -- that the inadequacy of the classic three-part
     test in some circumstances requires an additional assessment of
     the public interest in deciding whether to compel disclosure.
                                      -30-

1    ineffective in accommodating the various interests at stake.

2    This is a common-law privilege capable of change and improvement

3    in the hands of successive judges in successive cases as they

4    seek to apply it to differing circumstances and changing

5    conditions.

6                                    V.

7               My disagreement with the majority opinion comes down to

8    this:   I do not think that "whatever standard is used, the

9    privilege has been overcome as a matter of law on the facts
                   
10   before us."  Ante at [^20].

11              As I have explained, I think that overcoming the

12   qualified privilege in the "leak" context requires a clear and

13   specific showing (1) that the information being sought is

14   necessary -- "highly material and relevant, necessary or

15   critical," Petroleum Prods., 680 F.2d at 7-8; (2) that the

16   information is "not obtainable from other available sources," id;

17   and (3) that "nondisclosure of the information would be contrary

18   to the public interest, taking into account both the public

19   interest in compelling disclosure and the public interest in

20   newsgathering and maintaining a free flow of information to

21   citizens," Free Flow of Information Act, S. 2831, 109th Cong.,

22   § 4(b)(4) (2006).   As noted, the government denies that it must

23   prove to anyone other than itself that it has met any part of any

24   test.   Not surprisingly, then, the prosecutors' efforts to


                                    -31-

1   demonstrate that they have overcome the qualified privilege,

2   before the district court and before us, have been limited at

3   best. ^21

4             As for the first part of the inquiry, I do not see how

5   a court can know whether the production of records divulging the

6   identity of one or more confidential sources is necessary to a

7   grand jury investigation without knowing what information the

8   grand jury has and is looking for and why -- much as the In re

9   Grand Jury Subpoena district and appeals courts were presented


         21
            As previously mentioned, the government devotes just
    over six of the sixty-six pages in its brief to rebutting the
    plaintiff's assertion that the government has not met the burden
    it must carry to overcome their privilege. (The remainder of the
    brief contends that no privilege exists.) And the thrust of the
    government's argument to us in this regard is not that the
    district court should have granted judgment in its favor, as the
    majority would, but that summary judgment should not have been
    granted against it. See Gov't Br. at 61 ("[T]he district
    court . . . erred in granting summary judgment to the plaintiff
    given that the evidence, at the very least, demonstrated the
    existence of disputed issues of fact material to the application
    of the privilege."); id. at 63 ("At a minimum, the evidence
    established the existence of genuine issues of material fact
    precluding summary judgment."); id. at 65-66 ("[T]he district
    court was obligated to resolve all ambiguities and draw al
    reasonable inferences in favor of the government and against the
    plaintiff in assessing the plaintiff's motion for summary
    judgment . . . . The evidence before the district court was
    sufficient, even in the absence of disclosures of evidence
    protected by grand jury secrecy, to support a finding that any
    applicable privilege had been overcome. At the very least, the
    evidence established the existence of disputed issues of fact
    precluding summary judgment in favor of the plaintiff." (citation
    omitted; emphasis in original)).
                                  -32-

1    with evidence of such details in the course of their

2    deliberations.   See In re Grand Jury Subpoena, 438 F.3d at 1180-

3    82 (Tatel, J., concurring in judgment) (discussing classified

4    material provided to the court).

5              As for the second part of the inquiry, as already

6    noted, the government does not so much as attempt to present any

7    evidence showing that it has exhausted possible alternative means

8    to identify the source or sources of the "leaks" other than by

9    obtaining the telephone records it now seeks or, of course, by

10   subpoenaing the reporters themselves.   Its argument to us on this

11   score reads:

12             The district court also erred in concluding
13             that the information sought by the subpoenas
14             may have been available from other sources,
15             or that the government had failed to
16             establish that the information was not
17             available. The Affirmation of the United
18             States Attorney for the Northern District of
19             Illinois, who was personally involved in
20             conducting, and responsible for supervising,
21             the ongoing grand jury investigation, stated
22             that "the government had reasonably exhausted
23             alternative investigative means," and that
24             the Attorney General of the United States had
25             authorized the issuance of the challenged
26             subpoenas pursuant to the DOJ Guidelines. As
27             the district court acknowledged, the DOJ
28             Guidelines provided that subpoenas for
29             telephone records of reporters could only be
30             authorized based upon a finding by the
31             Attorney General that all reasonable
32             alternative sources had been exhausted.


                                    -33-

1    Gov't Br. at 63 (citations omitted).   Instead of seeking to meet

2    the test for overcoming the qualified privilege, the government

3    asks us to take its word for it.

4              My colleagues nevertheless conclude that the government

5    has demonstrated exhaustion.   According to them, "[t]here is

6    simply no substitute for the evidence [the reporters] have,"

7    because the "evidence as to the relationship of [the reporters']

8    source(s) and the leaks themselves to the informing of the

9    targets is critical to the present investigation."  Ante at [^21].

10   To the extent the majority is saying that the government has

11   exhausted available alternatives because the identity of the

12   reporters' sources is "critical" information, this appears to

13   confuse the requirement that evidence be important with the

14   requirement that it be otherwise unavailable.   However critical

15   the identity of the reporters' confidential sources may be, it is

16   known to at least one person besides the reporters: the source or

17   sources themselves.   Because the government has offered no

18   evidence, other than the conclusory assertions of its own agents,

19   that it has sought to discover this information from anybody

20   other than the reporters, I do not see how we can conclude that

21   it has made "a clear and specific showing" that the information




                                    -34-

1   is "not obtainable from other available sources."   Petroleum

2   Prods., 680 F.2d at 8; ante at [20]. ^22

3             The third, "public interest," part of the test, too,

4   was not addressed directly by the government. ^23  Here, its


         22
            The majority asserts in footnote [5] of its opinion that
    "ascertaining the reporters' knowledge of the identity of their
    sources and of the events leading to the disclosure to the
    targets of the imminent asset freezes/searches is clearly
    essential to an investigation into the alerting of those
    targets." Id. It also asserts that such knowledge "is not
    obtainable from other sources" because "even a full confession by
    the leaker would leave the record incomplete as to the facts of,
    and reasons for, the alerting of the targets." Id. These
    arguments do not seem to me to relate to the discovery request at
    issue in this case, which is for telephone records that would no
    more than disclose the identity of the journalists' sources and
    the dates and times of contact.

         23
            The majority refers to the reporters' disclosure of the
    government's plans to freeze the assets "and/or" search the
    foundations' offices. Ante at [20] This characterization of the
    government's allegations does not seem to me to be supported by
    the record. As I read it, the evidence suggests only that Judith
    Miller, who was covering the HLF story, was told of the
    government's plan to freeze HLF's assets -- not "and/or" conduct
    an FBI search. See Aff. of Judith Miller, dated Nov. 12, 2004,
    at ¶ 9. She then "telephoned a HLF representative seeking
    comment on the government's intent to block HLF's assets" Id. at
    ¶ 10 (emphasis added). Miller's December 4, 2001 published
    story referred to the imminent freezing of the foundation's
    assets but did not mention any search. Judith Miller, U.S. to
    Block Assets It Says Help Finance Hamas Killers, N.Y. Times, Dec.
    4, 2001, at A9.
               Reporter Shenon similarly says in his affidavit that
    on December 13, 2001, he "recall[s] contacting GRF [the 'Global
    Relief Foundation'] for the purposes of seeking comment on the
    government's apparent intent to freeze assets." Aff. of Philip
    Shenon, dated Nov. 9, 2004, at ¶ 5. He does not mention an FBI
    search of GRF, which he apparently did not report upon until

                                   -35-

1    failure to do so is understandable inasmuch as the requirement

2    was not explicitly a part of our case law at the time this matter

3    was litigated in the district court.   But the majority and the

4    government seem to be of the view, nonetheless, that the

5    disclosure in this case was of great consequences, and that

6    protection of the leaker's identity here is of little value to

7    the public in "maintaining a free flow of information."    If that

8    is so, it would follow that the balance with respect to this

9    factor would tilt decidedly on the side of compelling disclosure.

10   I, for one, see no way that we can know based on the current

11   record.


     after it happened. Philip Shenon, A Nation Challenged:     The
     Money Trail, N.Y. Times, Dec. 15, 2001, at B6.
               Nothing in the sparse record suggests to me that either
     reporter told HLF about, or even themselves knew about, an FBI
     search before it happened. Nor does the government appear to
     contend, let alone seek to establish, that Shenon and Miller knew
     about imminent raids. Instead, it asserts only that the
     reporters disclosed the impending asset freezes and that as a
     result the foundations thought an FBI search to be likely.
               There seems to me to be a significant difference
     between informing the target of an investigation about a freeze
     of its assets, presumably a white collar operation, and an FBI
     raid, knowledge of which could place FBI agents in danger of life
     and limb. It may be that a seasoned reporter would know that a
     tip as to an asset freeze is tantamount to a tip as to an FBI
     search. I have no idea whether that is true, but on the current
     record, it is no more than conjecture.

                                   -36-

1                The information that the assets of HLF and GRF were

2    being frozen was given to reporter Miller sometime before

3    December 3, 2001, and to reporter Shenon sometime before December

4    13, 2001.    The searches of the two organizations' offices took

5    place on the mornings of December 4 and 14, respectively.      It was

6    not until August 7, 2002, that the government approached the

7    Times seeking its cooperation with respect to this matter and its

8    consent to review the reporters' telephone records.    The Times

9    declined.    There was no further contact between the government

10   and the Times on this matter until July 12, 2004, nearly two

11   years later.    After the flurry of communications between the

12   parties that followed, the plaintiff began this litigation on

13   September 29, 2004.    It culminated in the district court's

14   decision of February 24, 2005.    The government's appeal has been

15   pending in this Court since May 31, 2005.    No request for

16   expedition has been made.    Indeed, at the government's September

17   9, 2005, request, it received a one-month extension to file its

18   appellate brief.

19               There is, of course, nothing inherently wrong with the

20   government proceeding deliberately.     To the contrary, it may be

21   laudably consistent with the goal of its own guidelines to

22   protect the newsgathering process when it can.    Nonetheless, the

                                      -37-

1    elapsed four and a half years does fairly raise the question of

2    just how significant the leaks were or are considered to be by

3    the government.    I thus do not see how we can possibly address

4    the question posed by the third part of the qualified immunity

5    test -- a balancing of interests -- without the government's

6    demonstration as to precisely what its interests are.

7                I do not mean to suggest that the government could not

8    have made an adequate showing on each of the three parts of the

9    qualified privilege, much as it apparently did in In re Grand

10   Jury Subpoena.    Nor do I mean to imply that it does not need the

11   information it seeks, has not in fact exhausted alternative

12   sources, or that finding, silencing, and seeking to prosecute or

13   punish the sources of the material that was disclosed is not

14   crucial.    I have no basis on which to dismiss out of hand the

15   prosecutors' assertion that they did make a sufficient showing,

16   at least on the first two counts, to the then-Deputy Attorney

17   General.    But the government was also required to make such a

18   demonstration to the district court, subject of course to our

19   review.    It has declined to do so.   For that reason, concluding

20   that the judgment of the district court must be affirmed, I

21   respectfully dissent.



                                     -38-

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