3 December 2004. Thanks to P.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA, :
S2 03 CR. 404 (WHP)
-against- :
JAMES H. GIFFEN, : MEMORANDUM AND ORDER
Defendant. :
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WILLIAM H. PAULEY III, District Judge:
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
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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.
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
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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
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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.
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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
Defendant's reply memorandum In support or his pretrial motion,
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
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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
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July 28, 2004; and
3. Docket entry # 55 the Protective
Order, dated September 10, 2004.
Dated: December 2, 2004
New York, New York
SO ORDERED:
[Signed]
WILLIAM H. PAULEY III
U.S.D.J.
Copies faxed to:
AUSA Peter Neiman
United States Attorney's Office
One St. Andrew's Plaza
New York, New York 10007
Philip Urofsky, Esq.
Special Counsel for International Litigation
Fraud Section
U.S. Department of Justice
10th & Constitution Ave., N.W.
Washington, D.C. 20530
William J. Schwartz, Esq.
Steven M. Cohen, Esq.
Kronish, Lieb, Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036-7798
Counsel for Defendant
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