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U.S. v. GIFFEN

United States District Court, S.D. New York


December 2, 2004.

UNITED STATES OF AMERICA,
v.
JAMES H. GIFFEN, Defendant.

The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

Presently before the Court is Defendant James H. Giffen's application to unseal various letter memoranda and transcripts of proceedings in this action. This application stems from the Government's pursuit of contradictory strategies for the filing of documents containing potentially classified information.

Oblivious to the requirements of Classified Information Procedures Act (CIPA) and Rule 12.3 of the Federal Rules of Criminal Procedure, the Government initiated public filings with this Court. Then, in an abrupt about-face, the Government began submitting every document under seal and insisted that Defendant James Giffen do the same. The Government now asserts that its earlier public filings contain potentially classified information and ought to be sealed.

  By letter application dated September 2, 2004, Defendant sought, inter alia, to unseal the transcript of the July 29, 2004 hearing as well as various submissions by the parties concerning CIPA. The Government responded by letter dated September 8, 2004 and agreed in principle that portions of the July 29, 2004 hearing and earlier submissions relating to CIPA procedural matters should be unsealed.

  Thereafter, by letter application dated September 23, 2004, the Government consented to unsealing its July 28, 2004 memorandum of law regarding CIPA and discovery. That concession was well-advised because the Government's purportedly classified memorandum simply copied a large segment of a CIPA synopsis in the United States Attorneys' Manual, which is available on the U.S. Department of Justice's publicly accessible web page. See http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02054.htm. That letter also consented to unsealing a September 7, 2004 letter from defense counsel and a letter from the Government dated September 10, 2004 enclosing a proposed protective order. In that letter, the Government requested that the Court postpone ruling on Defendant's unsealing motion until the Government completed its review of other documents under seal.

  By letter dated September 27, 2004, the Government announced its position with regard to the unsealing of portions of the July 29, 2004 transcript and several letters filed under seal between August 3, 2004 and September 8, 2004. Those letters include the Defendant's August 3, 2004 letter, the Government's August 4, 2004 letter, the Defendant's August 16, and September 2, 2004 letters and the Government's September 8, 2004 letter. In the portions relevant to Defendant's application, each of these letters discuss a potential public authority defense. The Government does not contend that these letters disclose classified information. Instead, it argues that they provide notice of Defendant's intent to assert a public authority defense naming federal intelligence agencies.

  Rule 12.3(a) (1) of the Federal Rules of Criminal Procedure requires that if a defendant gives notice of a public authority defense which "identifies a federal intelligence agency as the source of the public authority," then the notice "filed with the clerk must be under seal." That notice must contain the following information: "(A) the law enforcement agency or federal intelligence agency involved; (B) the agency member on whose behalf the defendant claims to have acted; and (C) the time during which the defendant claims to have acted with public authority." Fed.R.Crim.P. 12.3(a)(2).

  Without citation to any authority, the Government argues that "ancillary proceedings related to a possible public authority defense which reveal directly or indirectly that a defendant is contemplating a public authority defense based on authority allegedly provided by a federal intelligence agency also ought to be sealed." The Government's position is untenable. Rule 12.3 does not require that all documents relating to a public authority defense be filed under seal. Rather, it requires only that notice of a public authority defense containing the statutorily-required items of information be filed under seal.

  There is no dispute that neither the July 29, 2004 transcript nor any of the letters filed between August 3, 2004 and September 8, 2004 constitute actual notice of a public authority defense. However, were this Court to allow public filing of documents containing information that must be included in a public authority defense notice, the national security concerns undergirding Rule 12.3 would be compromised. Therefore, this Court will continue to seal those portions that give notice of a potential public authority defense identifying a federal intelligence agency. Such sealing will extend only to portions of documents that disclose the information listed in Rule 12.3(a)(2). Further, this Court declines to seal references to Robert Baer's book, titled See No Evil: The True Story of a Ground Soldier in the CIA's War on Terrorism (Crown Publishers 2002), because it was vetted and approved by a federal intelligence agency prior to its publication. With these principles in mind, this Court is issuing an Order under seal identifying the specific portions of the letters and transcript that shall remain sealed. In its September 27, 2004 letter, the Government also launched a new application seeking to seal previously publicly filed documents. Those documents include portions of Defendant's memorandum in support of his pretrial motions, the Government's own memorandum in opposition to Defendant's pretrial motions, Defendant's reply memorandum in support of his pretrial motions, the June 3, 2004 hearing transcript, and this Court's July 2, 2004 Memorandum and Order concerning discovery issues. In addition, the Government sought to seal some public portions of the September 5, 2003 and the July 29, 2004 hearings conducted in open court. In its September 27, 2004 salvo, the Government acknowledged the self-evident: "it is obviously impossible to completely repair any damage caused by these public filings." (Letter, dated September 27, 2004, at 3.)

  The notion that this Court should seal a portion of its Memorandum and Order four months after it was publicly filed, made available on Westlaw, published in the New York Law Journal and discussed in the national media is absurd. Such a sealing Order would be an exercise in futility. If docketed, its practical effect would be to make this Court's opinion available everywhere, except in the Clerk's office for the Southern District of New York. Accordingly, the Government's application to seal portions of this Court's July 2, 2004 Memorandum and Order is denied. For the same reason, this Court declines to seal documents that the Government filed in the public domain or comments made in open court.

  CONCLUSION

  For the foregoing reasons, this Court grants in part Defendant's application to unseal materials filed under seal. This Court grants the Government's request to seal portions of the July 29, 2004 transcript, Defendant's August 3, August 16, and September 2, 2004 letters, and the Government's September 8, 2004 letter and denies the Government's application to seal portions of documents previously docketed in the public file. The Government is directed to provide this Court and Defendant with redacted copies of the transcript and letters within five (5) business days for public filing.

  The parties are directed to provide this Court with their positions regarding the unsealing of the November 3 and November 23, 2004 transcripts, the Government's September 27 and November 16, 2004 letters, and the Defendant's October 4 and November 19, 2004 letters by December 15, 2004.

  Finally, the Clerk of the Court is directed to unseal the following documents:

1. Docket entry # 50 — the Government's letter dated August 4, 2004;
2. Docket entry # 52 — the Government's Memorandum regarding Classified Information Procedures Act (CIPA), dated July 28, 2004; and
3. Docket entry # 55 — the Protective Order, dated September 10, 2004.
SO ORDERED.
20041202

© 1992-2004 VersusLaw Inc.



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