As Russ Tice heads to his appearance before a Grand Jury looking into the NSA surveillance/ CIA prison leaks, this decision, handed down today in reference to a 2001 case involving - who else - Judith Miller, is bound to make future cases interesting:

“NEW YORK - Federal prosecutors investigating a leak about a terrorism funding probe can see the phone records of two New York Times reporters, a federal appeals court ruled Tuesday.

A panel of the 2nd U.S. Circuit Court of Appeals overturned on a 2-1 vote a lower court’s ruling that the records were off limits unless prosecutors could show they had exhausted all other means of finding out who spoke to the newspaper.

The judges said a grand jury investigation of the disclosures wasn’t likely to go anywhere without help from the reporters or access to their records.

“There is simply no substitute for the evidence they have,” Judge Ralph K. Winter wrote.

The newspaper was considering an appeal, its lawyers said.

The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed the government’s plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.”

This was of course another leak case Fitzgerald began working on before the “Plame Game” took center stage. In fact it was