Seizure of phone records raises free press issue

Secret subpoena of office and home telephone records of the New York Times Atlanta bureau by the US Department of Justice is the first such action to come to light since a series of similar seizures during the Nixon administration.

It occurred within the context of steps by the Carter administration to try to plug leaks to the news media.

Following major leaks to the press on the Abscam investigation, the Justice Department administered polygraph (lie detector) tests to government prosecutors and has conducted "stern intenal inquiries" of many other employees, says New York attorney Floyd Abrams, who specializes in cases involving First Amendment issues.

Attorney General Benamin Civiletti, under investigation by his own department for his role in the Billy Carter-Libya case, has adopted a policy giving broader significance to polygraph tests. Under the new policy, a "negative inference" can be drawn from any employee's refusal to take a test, a department spokesman says. Previously no inference was made on the basis of refusal.

"Things are getting very tight over at the Justice Department," says Tony Marro, Washington Bureau Chief of Newsday. Some Justice Department sources will not speak candidly "until they hear those quarters" being fed into pay phones, he said. And one US attorney, he adds, slipped out of his office and returned a call to the press from a neary pay phone.

Such caution appears to reflect a growing concern about possible seizure by the Justice Department of phone company records of reporters.

"None of this comes close to the mood in the Nixon administration," however, says Mr. Abrams. But Jack Landau, director of the Reporters Committee for Freedom of the Press, says the subpoena of the New York Times Atlanta bureau toll call records is "absolutely as intrusive and destructive as anything the Nixon administration did in this area."

Although the records of calls made between October 1978 and March 1979 from the Atlanta bureau and from the home of correspondent Howell Raines were subpoenaed on June 6, the Southern Bell Telephone Company, warned that earlier disclosure might interfere with a criminal investigation, did not notify the Times of the seizure until Sept. 3. It was following a rule established about two years ago by the parent American Telephone & Telegraph Company. The rule requires immediate notification to subscribers whose toll-call records are subpoenaed -- unless the phone company is asked by the Justice Departments to wait 90 days.

John C. Keeney, a deputy assistant attorney general, says he made the decisin to subpoena the Times telephone records in an attempt to "track down the [ Justice] Department employee" who leaked a report that could seriously jeopardize the rights of a non-employee charged with a "serious crime," Mr. Keeney declined to say which report was leaked or whose rights were thereatened by the leak.

Although Justice Department regulations require approval by the Attorney General before news media records can be subpoenaed, Mr. Keeny did not seek such approval, since he was subpoening records of the phone company, not the newspaper.

During the period covered by the seized records, Howell Raines, the Time's Atlanta bureau chief, was investigating FBI knowledge of alleged illegal activities in the 1960s of an FBI informant in the Ku Klux Klan, Gary Thomas Rowe. Mr. Rowe is charged with murder in connection with an incident that occurred in the '60s.

Stories by Mr. Raines apparently led to an intenal investigation by the Justice Department of its conduct in the case. The resulting report, labeled "secret," was highly critical of the FBI and former director J. Edgar Hoover. A copy of the report was obtained by Raines, who published its contents in two Times articles in February.

The New York is considering legal action