In 2005 Judge Robert Sweet, a federal district Court judge, denied Patrick Fitzgerald's motion to obtain the telephone records of then—New York Times reporter Judith Miller to ascertain her sources after she tipped off an Islamic charity of a coming raid. In the prosecution's appeal of that case the government indicates that if it loses, it may subpoena her notes of telephone calls directly from her.

Following the New York Time's loss in the U.S. Court of Appeals for the District of Columbia in the Plame case, he may finally succeed in getting them.

Journalist Judith Miller and U.S. Attorney Patrick Fitzgerald squared off in court again yesterday, with a lot less public attention than last year, when the dogged special prosecutor in the Valerie Plame case had the then—New York Times reporter jailed for 85 days to force her to disclose the identity of an anonymous source.

Yesterday's appearance in Manhattan before the U.S. Court of Appeals for the Second Circuit was another instance of Mr. Fitzgerald trying to find out about Ms. Miller's sources, this time by looking at the New York Times's phone records, and prosecutors raised the prospect of pressing her directly yet again, as they did in the Plame case to disclose the sources.

At the center of this leak case is the question of how Ms. Miller, who has since left the paper, and a second Times reporter came to learn of the government's plan to take action in the wake of September 11 against two Islamic organizations suspected of having terrorist ties.

The government is appealing a ruling by U.S. District Judge Robert Sweet last year that barred Mr. Fitzgerald from inspecting Ms. Miller's phone records. Mr. Fitzgerald's appeal has come before judges Amalya Kearse, Robert Sack, and Ralph Winter of the Second Circuit of the U.S. Court of Appeals. Judge Winter was absent from the panel at yesterday's hearing.

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