Of all the ironies in the case of The New York Times Company v. Ashcroft, perhaps the most splendid is that, according to court filings, one of the lawyers the Times has hired to represent it in its dealings with the Bush Justice Department is Kenneth Starr. When Judge Starr left office as the independent counsel investigating President Clinton, Whitewater, and Monica Lewinsky, the Times editorialized that Mr. Starr had “diminished a reputation damaged for the most part by his own legal and public-relations decisions.” The Times editorialists had referred to “the mistakes that marred Mr. Starr’s work” and to “his reputation for bad judgment.”

Apparently those mistakes and that reputation weren’t enough to prevent the Times from engaging Mr. Starr’s services when the paper needed to get a pair of its own reporters out of the path of a prosecutor intent on examining their telephone records. To which one can only say, “What goes around, comes around.” It is something to bear in mind in respect of the substance of the case, which includes a July 12, 2004, letter to the Times from the U.S. attorney for the Northern District of Illinois, Patrick Fitzgerald. In it he asserts that Times reporters tipped off the Global Relief Foundation and the Holy Land Foundation before December 2001 searches, thus compromising the actions. Both charities are accused of ties to Islamic extremist terrorists.

It was hardly a secret, though, that the foundations were under American government scrutiny. In the March 8, 1996, issue of the Jewish newspaper the Forward, Ira Stoll, then the Forward’s Washington bureau man and today managing editor of the Sun, reported that Rep. Nita Lowey, a Democrat of New York, had written to the United States commissioner of internal revenue asking her to revoke the tax-exempt status of the Holy Land Foundation because of what she said were its links to the Hamas terrorist organization. In testimony to the Senate Foreign Relations Committee on March 19, 1996, a counterterrorism expert, Steven Emerson, described the Holy Land Foundation as “the main fund raising arm for Hamas in the United States.”

As for the Global Relief Foundation, the Times’s Judith Miller reported on February 19, 2000, that it was on a list of more than 30 groups being examined by government officials “for links to terrorism.” These columns defended her some months ago when the Times was backing away from her reporting in Iraq. In the latest instance, our sources tell us that the pre-raid tip may have come not only from the Times but from the Global Relief Foundation’s Bosnian affiliate, which was also raided.

Why the American government waited five years, in the case of Holy Land, or nearly two years, in the case of Global, to take action is a puzzlement. It may have something to do with the fears about racial or religious profiling that James Q. Wilson traces in his review, in the October number of Commentary magazine, of “Broken: The Troubled Past and Uncertain Future of the FBI,” by Richard Gid Powers. It may have had something to do with the barrier between foreign intelligence and domestic law enforcement, a topic Professor Wilson also mentions in the Commentary piece. Whatever the reason for the delay, it seems clear that had the FBI moved with alacrity it might have raided the organizations before the Times tipped them off.

Mr. Fitzgerald notes in his letter that “an alert about the specific date of government action is qualitatively different than a more generalized concern.” True enough. We’re not of the view that journalists should, as a rule, refuse all cooperation with prosecutors. We do not feel journalists should tip off terrorists to impending raids. The Times denies that its reporters did any such thing. In any event, the better part of prosecutorial discretion in this case would be to acknowledge that the government is at least as much at fault for problems here as the Times is – and to drop the hunt for the reporters’ phone records. The Times, and the rest of us working newspapermen, for that matter, can consider the case a reminder of the need to use caution when approaching an enemy in wartime when in possession of information about impending actions by our side.