Statute of Limitations Passes in Probe of Leaks to N.Y. Times

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The New York Sun

A key legal deadline has passed, raising doubts about whether criminal charges will ever be filed in an investigation of leaks to the New York Times about planned federal raids on Islamic charities in America.

The statute of limitations pertaining to the latest of the leaks, which took place in December 2001, was to expire yesterday, according to court filings last month by the prosecutor overseeing the case, Patrick Fitzgerald of Chicago.

A spokesman for Mr. Fitzgerald, Randall Samborn, said yesterday that he planned no announcements regarding the leak case. He declined to confirm whether the investigation had concluded.

The probe triggered a protracted legal clash that reached all the way to the Supreme Court, after Mr. Fitzgerald attempted to review the telephone records of two Times reporters, Judith Miller and Philip Shenon, in an attempt to determine who told them about plans to seize the charities over alleged links to terrorism. The newspaper vigorously resisted, claiming that the effort to track the calls was an intrusion on the First Amendment.

Last year, a district court judge in Manhattan, Robert Sweet, ruled in favor of the Times, but an appeals court later reversed that decision, 2–1. Late last month, the newspaper asked the Supreme Court to step in, but the justices declined the request, without explanation.

A defense attorney who once worked alongside Mr. Fitzgerald as a prosecutor, Joshua Berman, said it is possible that the records of phone numbers dialed by the two journalists didn’t offer enough proof to bring charges.”Even if he got all of the phone records, the phone records alone are pretty hard to make a case off of. You don’t know what was said,” Mr. Berman said. He also noted that time worked against Mr. Fitzgerald, who was barred from reviewing the five-year-old call data until a couple of weeks ago. “To give any prosecutor, even Pat Fitzgerald, just three days or 16 days, isn’t much time, even if he had most things lined up already,” Mr. Berman said.

“It’s certainly not an insignificant day,” another lawyer who once worked with Mr. Fitzgerald, Andrew Mc-Carthy, said.”These are hard cases. It’s not only probably looking for a needle in a haystack, it might not even be a needle.”

Mr. McCarthy said it is possible that a series of innocent disclosures could have led to disclosure of the raids. Even if the leaks were deliberate, he said, an obstruction of justice case would also require prosecutors to show that a leaker acted “corruptly,” meaning he or she intended to undermine the inquiry. “That’s not always easy to do,” the exprosecutor said.

Despite the expiration of the five-year statute of limitations, it is still theoretically possible that criminal charges could be filed. If Mr. Fitzgerald was able to identify suspects, he could have asked them to agree to extend the time limit, or he may have filed charges against them under seal. In addition, the prosecutor could, in effect, extend the deadline by linking the leaks to an allegation of a broader conspiracy to undermine the probe of the groups. However, lawyers following the case described those possibilities as remote.

Mr. McCarthy said that even if no criminal charges are filed, the telephone records could lead to disciplinary action or the firing of any government officials who leaked advance word about the plans to act against the Illinois-based Global Relief Foundation and the Texas-based Holy Land Foundation.

Mr. Fitzgerald suggested in court papers that Ms. Miller and Mr. Shenon acted improperly by tipping off the groups to the planned seizures, but lawyers for the journalists said they were just following the common practice of seeking comment from the subjects of a news story. The prosecutor said the reporters’ actions could have endangered law enforcement officers or led to the destruction of evidence.


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