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In re Nat'l Sec. Archive

United States District Court, S.D. New York

May 19, 2015

IN RE PETITION OF NATIONAL SECURITY ARCHIVE, AMERICAN HISTORICAL ASSOCIATION, AMERICAN SOCIETY OF LEGAL HISTORY, ORGANIZATION OF AMERICAN HISTORIANS, SOCIETY OF AMERICAN ARCHIVISTS, AND SAM ROBERTS FOR ORDER DIRECTING RELEASE OF GRAND JURY MINUTES

For Petition of National Security Archive, In Re: Debra L. Raskin, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY.

For National Security Archive, Plaintiff: David C. Vladeck, LEAD ATTORNEY, Georgetown University Law Center, Washington, DC.

For American Historical Association, American Society of Legal History, Organization of American Historians, Society of American Archivists, Sam Roberts, for order directing release of Grand Jury Minutes, Plaintiffs: Debra L. Raskin, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY.

For United States of America, Defendant: Andrew Edward Krause, LEAD ATTORNEY, United States Attorney's Office, SDNY, New York, NY; Andrew Martin McNeela, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (86 Chambers St.), New York, NY.

OPINION AND ORDER UNSEALING GRAND JURY TESTIMONY OF DAVID GREENGLASS AND MAX ELICHTER

ALVIN K. HELLERSTEIN, United States District Judge.

Petitioners -- a non-profit institution, four national associations of historians and archivists, and a journalist -- seek the release of grand jury records related to the prosecutions in this Court of Ethel and Julius Rosenberg. For the following reasons, the petition is granted.

BACKGROUND

In 1950, a federal grand jury impaneled by this Court indicted Julius and Ethel Rosenberg of conspiracy to commit espionage by passing information about the atomic bomb to agents of the Soviet Union. The following year, they were tried and convicted, partly based on the testimony of Ethel Rosenberg's brother and alleged co-conspirator, David Greenglass. The Rosenbergs were sentenced to death and, on June 19, 1953, they were executed. Subsequently, in interviews with journalist Sam Roberts of the New York Times, Greenglass claimed to have lied at trial about his sister's involvement in order to protect his wife, Ruth Greenglass. According to Greenglass, it was likely Ruth, not Ethel, who typed up his notes, but government attorneys were threatening to prosecute Ruth unless David testified against Ethel. See, e.g., Sam Roberts, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister, Ethel Rosenberg, to the Electric Chair (2002).

In January 2008, Petitioners petitioned this Court to unseal grand jury records relating to the Rosenbergs' indictments.[1] After briefing and oral argument, I granted Petitioners' request with respect to the grand jury transcripts of all witnesses who were either deceased, had consented to the release of the transcripts, or were presumed to be indifferent or incapacitated based on their failure to object. See Order Regulating Proceedings, In re Nat'l Sec. Archive, Misc. No. 11-188 (Part I) (S.D.N.Y. Jul. 23, 2008); Summary Order, In re Nat'l Sec. Archive, No. 08-cv-6599 (S.D.N.Y. Aug. 26, 2008). That release covered 43 of the 46 grand jury witnesses. The three remaining witnesses -- Max Elichter, William Danziger, and David Greenglass -- objected, and their transcripts were not released. Petitioners withdrew their motion as to Elichter and Danziger, but urged that the vital historical importance of Greenglass's testimony warranted releasing the transcripts over his objections. I denied the motion, reasoning that " the interest of a witness before a grand jury . . . in not permitting others to disclose what he said to the grand jury is an abiding value that I must respect." Tr. of Jul. 22, 2008 at 33:13-15. However, I cautioned that " [w]hether that interest will survive David Greenglass is a question I do not decide today." Id. at 42:25-43:15.

Now, more than six years later, the issue comes before me again, as Petitioners have renewed their motion following the deaths of David Greenglass and Max Elichter. The renewed petition does not cover William Danziger, as Petitioners have been unable to determine whether Mr. Danziger is still alive.[2] In a December 15, 2014 Order, I extended the Government's time to respond to the renewed petition in order to allow it " to consult all potential stakeholders." Doc. No. 13 at 1. According to the Government, the Elichter family has no objection, so his testimony will be unsealed posthumously like those of previous witnesses. However, the Greenglass family continues to oppose disclosure.

LEGAL STANDARD

" It is a tradition of law that proceedings before a grand jury shall generally remain secret." In re Biaggi, 478 F.2d 489 (2d Cir. 1973). This policy is intended

(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n.6, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954)). However, the tradition of secrecy is not absolute. In re Biaggi, 478 F.2d at 492. For example, Fed. R. Crim. P. 6(e)(3) allows for disclosure under certain circumstances, such as disclosure to a criminal defendant if the grand jury witness will testify against him at trial. And the Second Circuit has recognized that " there are certain 'special circumstances' in which release of grand jury records is appropriate even outside the boundaries of the rule." In re Craig, 131 F.3d 99 (2d Cir. 1999). One such special circumstance is significant historical interest by the public. Id. at 105. The determination of whether such an interest outweighs the countervailing interests in privacy and secrecy falls within the district court's discretion. See id. at 104 (" We note at the outset that the ...


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