Sometime in late November or early December of 2001, less than two months after the 9/11 attacks, Judith Miller became aware that the FBI was planning to freeze the assets of the Holy Land Foundation, a Moslem "charity" organization that has since been listed as a terrorist front. On December 3rd, Miller telephoned the offices of the Holy Land Foundation for Relief and Development (HLF) to ask for "comment" from them on this impending freeze; Patrick Fitzgerald, the special counsel investigating the Plame blame game, alleged in the district court case New York Times v. Gonzales (04 Civ. 7677) that Miller also warned them that "government action was imminent." (Opinion of Judge Robert W. Sweet at page 13.)

That "action" was more than just freezing the funds; the FBI conducted a search of the offices of the HLF on the day after Miller's article appeared in the New York Times. Then on December 13th, Miller's colleague Philip Shenon called the offices of the Global Relief Foundation (GRF), yet another Moslem "charity" foundation since identified as a front for terrorism, to warn them -- rather, to get "comment" from the GRF about the impending freezing of their assets, as well; in a curious coincidence, Shenon's phone call also came just one day before the FBI searched those offices. (Judge Sweet's opinion, p. 14.)

Both tips came from "confidential sources" inside the government, and Fitzgerald has been investigating who leaked word of those asset freezes, whether the leaker(s) likewise told Miller or Shenon that the charities' offices were to be raided, and whether the reporters inadvertently (or deliberately) passed along that information in their phone calls, allowing the terrorist fronts enough warning to sanitize their files, getting all incriminating evidence out of the office, or even to set a booby-trap for the FBI agents, had they so chosen.

Fitzgerald's office contacted Miller and Shenon, trying to find out who the tipster was; they refused, through the New York Times, and Fitzgerald threatened to subpoena the phone records from the Times's telephone service provider. After some back and forth, the Times sued in federal court to prevent such a subpoena, and Robert Sweet heard the case.

Sweet, a Jimmy Carter appointee, ruled in February 2005 that the records were protected under the First Amendment as well as federal laws and common law shielding reporters from having to reveal sources; the case is currently under appeal, I believe (unless it's already been adjudicated). But in reading the opinion, I stumbled across information that may well change the determination of who "won" this round, Fitzgerald or Miller. Here is the sequence of events:

1. After July 12th, 2004, the Times contacted its telephone service provider and asked that they inform the Times if they receive a subpoena for the records, and that they refuse to hand over the records until the Times can litigate the issue; the phone company refused. (Opinion, p. 17)

2. The Times received a letter from Fitzgerald dated July 27th, in which he wrote, "We do not intend to engage in debate by letter. We will not delay further and will proceed." (P. 19)

3. The Times' lead attorney, Floyd Abrams, called Fitzgerald to ask whether the government had already obtained Miller's and Shenon's phone records; Fitzgerald refused to answer. He did, however, offer Abrams "a period of time" during which they would not seek such records or review those they already had:

After The Times received Fitzgerald's July 27 letter, Abrams spoke with Fitzgerald by telephone. During the course of this conversation, Abrams asked Fitzgerald whether The Times' telephone records were being sought in connection with a grand jury investigation and whether the telephone records had already been obtained. Fitzgerald declined to answer either question. However, Fitzgerald agreed to give Abrams a period of time to familiarize himself with the situation, and that, in the interim, the government would not seek to obtain any of The Times' telephone records that it had not already obtained and that it would not review any such previously-obtained records. (P. 19)

4. On September 23rd, Deputy U.S. Attorney James Comey, who had looked into the possible subpoenas at Abrams' request, "concluded that Fitzgerald's conduct was proper in all respects." Comey found that Fitzgerald had no "obligation to share with the New York Times a summary of the investigation to date before we can conduct our investigation," nor that they need to "afford the New York Times an opportunity to challenge the obtaining of telephone records from a third party prior to our review of the records, especially in investigations in which the entity whose records are being subpoenaed chooses not to cooperate with the investigation." (P. 21)

Having diligently pursued all reasonable alternatives out of regard for First Amendment concerns, and having adhered scrupulously to [DOJ] policy, including a thorough review of Mr. Fitzgerald's request within [DOJ], we are now obliged to proceed.

5. On September 29th, the Times filed suit in federal court to quash any subpoenas that may have been issued for the phone records.

6. On October 14th, Abrams sent a letter to the court claiming that "the Government has agreed to forgo any action to obtain records or to review any records that may have already been obtained until such time as [the Court] has ruled on the planned motions." (P. 21)

This must have been a new agreement, because it is completely at odds with Judge Sweet's own characterization of the earlier agreement, in which Fitzgerald agreed only to give Abrams "time to familiarize himself with the situation."

Speculation alert: I believe that Fitzgerald would have concluded that from July 27th, 2004 until September 23rd, 2004, when Comey concluded that the Department of Justice had acted properly and "we are now obliged to proceed," was all the time that Fitzgerald had promised to Abrams to allow him to come up to speed.

And if there were a new agreement (if Abrams were not simply mischaracterizing the old one), it could only date from some time after the case was actually filed, on September 29th, 2004. That leaves a gap from Friday, September 23rd to some time after Thursday the 29th (the day the case was filed) during which there was, in Al Gore's infamous words, "no controlling legal authority" to prevent the Department of Justice from subpoenaing records or reviewing records it already had: at least four working days.

Four days might not have been enough time to issue a subpoena and have it complied with (though it might); but recall that as early as July 27th, Fitzgerald refused to tell Abrams whether he had already obtained those records. He only promised not to review them during the grace period. If I had to guess, Fitzgerald probably subpoenaed those records as soon as he realized the NYT was going to be intransigent about it... back in July of 2004, shortly after sending the letter to the Times informing them he was investigating Miller as well as Shenon and would obtain the phone records elsewhere. If, in fact, he did already have them, then four days was certainly ample time to run the phone numbers and determine to whom Miller and Shenon had talked just before calling those two terrorist front organizations.

In other words, Patrick Fitzgerald may already have known who leaked news of the impending FBI government action before the federal case was even filed.

It poses an interesting quandry. If Sweet's ruling is upheld, then presumably Fitzgerald cannot use those phone records even to investigate the leakers (fruit of the poisoned tree); if it's upheld, he can. But everything depends upon the fate of the appeal of Sweet's ruling -- not on the testimony of Judith Miller.

In fact, I am certain that Miller would refuse to testify about the HLF case in any event, on grounds much firmer than some journalistic shield law: she would probably stand on the Fifth Amendment, since she could well be incriminated as an accessory or even accomplice in obstruction of justice. And she could not be put in jail for refusing to testify if she took the Fifth, as she could (we now see) for refusing to testify on grounds of journalistic "privilege."

This is because a few days before Judge Sweet made his ruling, the D.C. Circuit held in Miller v. United States/Cooper v. United States that the reporters themselves could be compelled to testify; as this is certainly more chilling to investigative journalism than merely obtaining phone records, I suspect that Fitzgerald believes that when Sweet's ruling comes up in the New York Circuit -- or at least before the Supreme Court -- that it will be overturned. In which case, Fitzgerald can subpoena Miller and Shenon at that time (under a new or extended grand jury) and compel testimony, telephone records in hand, about who tipped them off to the action against HLF and GRF. Even if they take the Fifth, Fitzgerald can still proceed against whoever is incriminated by the phone records.

Abrams claims that he "tried to get a deal a year ago."

I spoke to Mr. Fitzgerald, the prosecutor, and he did not agree at that time to something that he later did agree to, which was to limit the scope of the questions he would ask, so as to assure that the only source he would effectively be asking about was Mr. Libby. [Emphasis added]

But we do not know the exact wording of the two deals, so there is no way to know whether they really are identical. I'm curious about the word "effectively" in there; it very much qualifies and limits the earlier phrase "the only source." The sticking point could indeed be the HLF case; and by "the only source," it's possible that Abrams now means the only source relating to the Plame affair.

More speculation: if the two deals are substantially similar, but they differ on the prospect of future testimony on the HLF case in the event that the appellate court overturns Sweet's decision, that would certainly be a good reason for Fitzgerald to refuse the first time but accept the second.

I think it very premature to conclude that Fitzgerald lost this contest of wills; it's more likely that he concluded that there was no reason to keep Miller in jail right now, because the real action will have to wait until he finds out whether he can proceed with the phone records he already has (or subpoena them, if he has not already done so), and neither Miller nor Shenon is likely to flee the country in the meantime.

My speculation does involve some reading between the lines; but I still think it more probable than the idea that Fitzgerald was so cowed by Miller's intransigence that he has simply given up on the Moslem "charity" leak probe, which he has been investigating since at least August of 2002.