United States District Court, S.D. New York
December 2, 2004.
UNITED STATES OF AMERICA,
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
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
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.
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
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.
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