Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 1 of 10 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA UNITED STATES OF AMERICA ) ) CR. NO 05-394 (RBW) v. ) ) I. LEWIS LIBBY, ) also known as "Scooter Libby" ) GOVERNMENT'S RESPONSE TO DEFENDANT'S MOTION FOR RECIPROCAL DISCLOSURE UNDER CIPA § 6(f) The UNITED STATES OF AMERICA, by its attorney, PATRICK J. FITZGERALD, Special Counsel, respectfully submits this Response to the Defendant's Motion for Reciprocal Disclosure under Section 6(f) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III. As discussed below, the plain language of Section 6(f) only requires the government to provide discovery of information that the government "expects to use to rebut the classified information" that the defendant will offer at trial, CIPA § 6(f) (emphasis added), and does not, as the defendant attempts to more broadly recast it, require the government "to identify the evidence it will use to rebut the memory defense," Def. Mot. at 4 (emphasis added). When interpreted in the sole way that its text permits, the government currently has no information to provide under Section 6(f) because the government does not expect to dispute the veracity or accuracy of "the classified information" that the defendant plans to offer at trial in support of his memory defense. BACKGROUND The defendant has obtained from the government in this case extensive discovery of classified information. This information includes a full and complete set of the defendant's own notes from time periods deemed relevant by the Court; detailed summaries of Presidential Daily Briefs and Terrorist Threat Matrices received and/or reviewed by the defendant during periods of
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 2 of 10 time deemed relevant by this Court; pertinent classified documents from the White House, the CIA, the State Department and the Department of Defense; and copies of documents in the possession of the Special Counsel obtained by subpoena or otherwise from the Office of the Vice President. Most of the extensive classified discovery, and certainly the most sensitive information among the classified discovery, only relates to the defendant's "memory" defense. On August 15, 2006, the defendant submitted his consolidated CIPA § 5 Notice to the Court setting forth the classified information he reasonably expected to disclose at trial. The Notice, as amended, now consists of nine topic areas of classified information described by three ways: a narrative, which counsel proffered would be used by the defense to introduce each topic, a listing of classified documents (exhibits) containing specific classified information which counsel represented would be used to flesh out the relevant topic area; and proffered testimony concerning the narratives and exhibits. Every exhibit identified by the defendant in his Notice was obtained from the government in discovery, and each narrative, as well as the proffered testimony, draws from the defendant's review of this discovered information, with limited exceptions. During the course of the Section 6(a) relevancy hearings, the defendant withdrew from the Court's consideration over 300 of the classified exhibits he had identified in his Section 5 Notice, with the representation that the defense would not seek to elicit detailed testimony about these documents but instead would present them to the jury in summary form as dots on a chart. With some redactions, most of the remaining exhibits and all of the narratives and proffered testimony were held to be relevant to the defendant's memory defense and ruled admissible. The defense has not yet provided a final copy of its chart for the Court to rule on. 2
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 3 of 10 The CIPA Section 6(c) proceedings are still ongoing, with a number of issues still unresolved. The Court has indicated that it will not impose a standard whereby the government is required to produce a substitution or statement for every individual item of classified information that the Court has ruled relevant and admissible. Instead, the Court has stated that it will look at the totality of the information made available by the government in assessing whether the proposed substitutions provide the defendant with substantially the same ability to make his defense as would disclosure of the underlying classified information. In keeping with these tentative holdings, the government will be requesting the Court at the upcoming CIPA Section 6© hearing to preclude the defendant from testifying about certain limited, discrete facts which the court previously ruled were relevant and admissible. Throughout the CIPA proceedings the government has maintained that it will not challenge the defendant's contention that he was busy on important national security issues during the periods of time deemed relevant by the defense. Significantly, the government has further represented that it does not intend to challenge the accuracy and veracity of the specific items of sensitive intelligence that the Court may permit the defendant to disclose in connection with his preoccupation defense. Indeed, given that most, if not all, of the classified information will be offered by the defense for the effect it may have had on the defendant's state of mind, rather than for the truth of the matters asserted, the accuracy of the information is not at issue. ^1 Nor does the government expect to drag 1 Defendant has consistently represented that the memory-related documents are relevant to establish the defendant's state of mind and not to prove the truth of the matters asserted. See e.g. Def.'s Doc. No. 146 ("The statements by others reflected in Mr. Libby's notes will not be offered for the truth of the matters asserted and thus constitute nonhearsay under Rule 801(c). . . . [I]f a Libby note reflects a CIA official describing intelligence about a terrorist threat against the United States, it is irrelevant whether the official's statement is true or false, accurate or inaccurate. The relevance of the statement lies solely in the fact that it was made and the resulting effect it had on 3
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 4 of 10 out either the pre-trial proceedings or the trial itself by conducting trials-within-trials over the accuracy of the classified information. It is against this backdrop that the defendant now seeks an order from the Court under CIPA 6(f) for disclosure of all evidence that rebuts the "memory defense." Def. Mot. at 4. ARGUMENT I. CIPA Section 6(f) Requires Disclosure Only of Information Used to Rebut The Classified Information. Section 6(f) of CIPA provides in relevant part: Whenever the court determines pursuant to subsection (a) that classified information may be disclosed in connection with a trial or pretrial proceeding, the court shall, unless the interests of fairness do not so require, order the United States to provide the defendant with the information it expects to use to rebut the classified information. 18 U.S.C. App. III, § 6(f) (emphasis added). By its express terms, Section 6(f) authorizes the court to order disclosure only of information that the government expects will rebut "the classified information" that the defendant will offer at trial. In other words, Section 6(f) makes no mention of a requirement that the government disclose information that would rebut defenses generally rather than classified information specifically. Without any supporting legal authority for expanding the terms of Section 6(f), the defendant's motion for reciprocal disclosure demands that the government "identify the evidence it will use to rebut the memory defense," Def. Mot. at 4 (emphasis added), not just information that would rebut "the classified information," CIPA § 6(f). By making this demand, the defendant attempts to recast Section 6(f) as an omnibus reciprocal disclosure provision, which it is not. The Mr. Libby's state of mind.") 4
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 5 of 10 court's authority under Section 6(f) begins and ends with information that will rebut "the classified information." That the statute does not permit the court to enter an order requiring the government to disclose all information rebutting a `defense'should not be at all surprising; CIPA's purpose was to provide a framework by which the court deals with classified information, and was not intended to radically expand the defendant's access to the government's trial strategy. The D.C. Circuit recognized these principles in United States v. North, 910 F.3d 843, 902 n.41 (D.C. Cir. 1990), modified on other grounds, 920 F.2d 940 (D.C. Cir. 1990), specifically endorsing that the exchange of information will not be precise and that Section 6(f) has no constitutional defect: CIPA was specifically designed to minimize the need to "forego [ ] prosecution of conduct [the government] believed to violate criminal laws in order to avoid compromising national security information." Discovery proceedings under CIPA, therefore, entail the kind of strong state interest that may justify an exchange of information between the prosecution and the defense that is not entirely reciprocal. Wardius, 412 U.S. at 475. In these circumstances, the Dissent's repeated invocations of Wardius . . . in which the Court considered a state rule precluding reciprocal discovery by the defense without any countervailing state interest are misplaced. Here, unlike the situation in Wardius, the "State's inherent information-gathering advantages," id. at 475 n.9, are matched by the defendant's opportunities for engaging in "greymail" to derail legitimate prosecutions. Id. at 902 n.41 (citation omitted). Accordingly, by its terms, Section 6(f) is limited to evidence that the government intends to use to rebut specific classified information found to be disclosable at trial under Section 6(a). As applied here, the government has repeatedly stated that it does not intend to challenge the accuracy or veracity of the classified information that this Court has ruled relevant and admissible. For example, if the defendant testifies that it was reported to him that a particular foreign nation was attempting to become a nuclear power, the government does not expect to present information that challenges the accuracy of that report. So too with any other classified information that the 5
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 6 of 10 defendant presents for the impact on his state of mind. ^2 Thus, the government currently has no information to provide pursuant to Section 6(f). ^3 If for some reason the government later develops an expectation that it will rebut the accuracy or veracity of classified information offered by the defendant, the government will disclose that information pursuant to Section 6(f)'s continuing duty to disclose, or if appropriate, seek a ruling from the Court permitting it not to disclose. II. The "Interests of Fairness" Do Not Require Any Reciprocal Disclosure. Separate and apart from the absence of any dispute over the classified information, and even if Section 6(f) somehow could be interpreted to require disclosure of information rebutting the memory defense generally, Section 6(f) does not require disclosure of information where the "interests of fairness" do not require it. 18 U.S.C. App. III, § 6(f). The legislative history of Section 6(f) shows that Congress did not intend to require yet additional government disclosure of information where it was the government that, in the first instance, already provided the classified information that the defendant is using against the prosecution. 2 The defendant's use of classified information in this case starkly differs from the use made by the defendant in North. In North, the defendant was not using classified information to present a memory defense; rather, the classified documents, which were either written by or sent to North, were "directly relevant to the case." 901 F.2d at 399-400. Thus, the government's rebuttal evidence in that case did in fact rebut the accuracy of the classified information, whereas in the instant case, the classified information's accuracy is simply not at issue. 3 To be clear, the government does reserve the right to challenge any overstatements that the defendant makes concerning the impact of the classified information on the defendant's preoccupation or memory. For example, if the defendant testifies that certain information caused him great concern because it was the first time he had heard that information, the government reserves the right to show that it was not the first time defendant had heard that particular information; such a showing is not, under Section 6(f), a rebuttal to the classified information. The defense has represented that it will not overstate the extent to which any classified information was new. The government obviously cannot determine in advance of defendant's testimony the extent to which it will need to provide evidence to challenge any overstatements. 6
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 7 of 10 The phrase, "unless the interests of fairness do not require," was added to CIPA's reciprocity provision as a result of concerns expressed by then-Assistant Attorney General Phillip Heymann about a similar disclosure provision in an earlier version of the bill. That earlier version required the government, without exception, to provide the defendant with evidence rebutting "particular classified information" ruled admissible by the court. See Section 107 of H.R. 4736, Classified Information Criminal Trial Procedures Act, (96th Cong., 1st Sess. 1979). In objecting to this requirement, Mr. Heymann made the following observation: If you move to basic fairness in questions of reciprocity, remember that in most cases the defendant is going to be tendering a document we gave him in discovery as something he wants to use at trial. The notion of reciprocity [as articulated in the bill] is that the defendant is revealing his secrets, his case, and [so] the Government ought to [be required] to [reveal] its secrets, its case. [However], in most of the situations we [will be] dealing with here, the defendant is going to have obtained from the Government during discovery, documents which are secret. There will then be this proceeding where the defendant will then say I want to use this document that the Government gave me at trial. If the judge rules that it can be used at trial, your bill, Mr. Chairman (Congressman Murphy), and Senator Biden's bill then requires us to come in and reveal more information, anything that goes to show that we are going to rebut it, in fairness to the defendant. But remember, the document that the defendant revealed came from us. It is our document that we gave to the defendant to help his case. It is our information that was given to the defendant in fairness to him as required by law that he has now said he would like to use. It hardly seems that equity requires us then to provide an additional amount of information to show how we are going to rebut the effect of our own document. Hearing on Graymail Legislation before the Permanent Select Committee on Intelligence, p. 24 (August 7, 1979). Mr. Heymann went on to explain how the Federal Rules of Criminal Procedure already required the government to turn over to the defense in discovery all documents the government intended to use at trial as well as documents helpful and material to the defendant's case. He concluded by noting that "[o]ur case is largely exposed by discovery, by the indictment, and by 7
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 8 of 10 normal bills of particulars," and he questioned the wisdom and fairness of an additional discovery obligation. Id. at 24-27. Based in large measure on the concerns expressed by Mr. Heymann, H.R. 4736 was amended to add a new subsection to the previous bill's reciprocity provision. That subsection, Section 107(d), provided: The provisions of this section shall not apply to classified information provided by the United States to the defendant pursuant to a discovery request, unless the court determines that the interests of fairness so require. H.R. 4736, Section 107(d) (96th Cong., 2nd Sess. 1980). Section 107 ultimately was replaced by current CIPA Section 6(f) and the provisions of subsection 107(d) were condensed into Section 6(f)'s current phrase, "unless the interests of fairness do not so require." In commenting on this language, the House and Senate conferees observed: The conferees agree that the reciprocal provision of information by the government to the defendant may not be "in the interests of fairness" in cases where the defendant has received the classified information in question from the government by discovery. House Conference Report No. 96-1436, at 12-13 (1980). Accordingly, under CIPA 6(f) disclosure of information is hardly a matter of right and should not be ordered as a matter of course in cases where, as here, the defendant has obtained almost all of the classified information in question from the government in discovery. Moreover, the interests of fairness do not weigh in favor of yet more pre-trial disclosures where the purported tactical disadvantages of which the defendant complains, Def. Mot. at 3 ("CIPA has compelled Mr. Libby to make a detailed presentation concerning the core of his defense"), is illusory. It is not as if the government learned for the first time during the CIPA proceedings that the defendant would assert a memory defense. From the start of the defendant's discovery requests, 8
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 9 of 10 discovery motions, and proposed expert testimony, it was no mystery that the defendant was going to assert that he was busy, that he worked on national security matters, and that any misstatements were due to faulty memory. Indeed, there was significant litigation over the extent that the Presidential Daily Briefs and the Terrorist Threat Matrices would be discoverable. CIPA simply required the defendant to notify the government and the Court as to what classified information he was going to rely on almost all of which turned out to be information that the government itself provided in discovery. Furthermore, the playing field is also leveled because the government's theory of the case, including the general parameters of its rebuttal case, has been aired repeatedly and in some detail during the course of the CIPA proceedings. CONCLUSION For the foregoing reasons, the government does not object to entry of an order that requires the disclosure of information that it expects to "rebut the classified information" that the defendant will offer at trial, as CIPA Section 6(f) requires. Currently, however, no such information is expected to be used because the government does not expect to dispute the accuracy or veracity of the classified information. Respectfully submitted, /s/ PATRICK J. FITZGERALD Special Counsel Office of the United States Attorney Northern District of Illinois 219 South Dearborn Street Chicago, Illinois 60604 (312) 353-5300 Dated: November 28, 2006 9
Case 1:05-cr-00394-RBW Document 208 Filed 11/28/2006 Page 10 of 10 CERTIFICATE OF SERVICE I, the undersigned, hereby certify that on this 28th day of November, 2006, I caused true and correct copies of the foregoing to be served on the following parties by first class mail and electronically: William Jeffress, Esq. Baker Botts The Warner 1299 Pennsylvania Avenue, N.W. Washington, DC 20004-2400 Facsimile: 202-585-1087 Theodore V. Wells, Esq. Paul Weiss 1285 Avenue of the Americas New York, NY 10019-6064 Facsimile: 212-373-2217 Joseph A. Tate, Esq. Dechert LLP 4000 Bell Atlantic Tower 1717 Arch Street Philadelphia, PA 19103-2793 Facsimile: 215-994-2222 John D. Cline, Esq. Jones Day 555 California Street San Francisco, CA 94104 Facsimile: 415-875-5700 Patrick J. Fitzgerald Special Counsel U.S. Department of Justice 10th & Constitution Ave., NW Washington, D.C. 20530 202-514-1187 By: /s/ Peter R. Zeidenberg Deputy Special Counsel
An interesting waypoint in Miller/NYT's refusal to testify in the Holy Land, Global Relief cases.
U.S. Department of Justice
Office of the Solicitor General
Washington, D.C. 20530
November 24, 2006
The Honorable William K. Suter
Clerk, The Supreme Court of the United States
Washington D.C. 20543
Re: New York Times v. Gonzales, No. 06A523
Dear General Suter:
Applicant has sought a stay of the mandate of the court of appeals to prevent the government from reviewing telephone records that will reveal the identity of confidential sources of applicant and its reporters. This Court has requested a response from the government and has inquired when, absent a stay, the review that applicant seeks to stay will take place.
The court of appeals' mandate should issue on Friday, November 24, 2006. While the government desires to review the records in question as expeditiously as possible, in light of the proceedings that must take place on remand, it is our belief that there is no likelihood that the government would see the records that applicant wants to keep confidential before Wednesday morning, November 29, 2006. To remove any doubt: the government will not review the telephone records in question before Wednesday morning unless (1) this Court has denied a stay by that time, and (2) the district court has authorized review of the records. Thus, in no circumstances would applicant's interests be prejudiced if the Court ruled on the stay application by the close of business Tuesday, November 28, 2006.
Michael R. Dreeben
Deputy Solicitor General
cc: Counsel of record
No. 06A525 IN THE SUPREME COURT OF THE UNITED STATES ____________________ THE NEW YORK TIMES COMPANY, APPLICANT v. ALBERTO GONZALES, ET AL. ____________________ ON APPLICATION FOR A STAY OF THE MANDATE PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ MEMORANDUM FOR THE UNITED STATES IN OPPOSITION ___________________ PAUL D. CLEMENT Solicitor General Counsel of Record ALICE S. FISHER Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General DEBRA RIGGS BONAMICI Assistant United States Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217
IN THE SUPREME COURT OF THE UNITED STATES ____________________ No. 06A525 THE NEW YORK TIMES COMPANY, APPLICANT v. ALBERTO GONZALES, ET AL. ____________________ ON APPLICATION FOR A STAY OF THE MANDATE PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT ____________________ MEMORANDUM FOR THE UNITED STATES IN OPPOSITION ____________________ The Solicitor General, on behalf of the United States, respectfully files this memorandum in opposition to the application for a stay of the mandate of the United States Court of Appeals for the Second Circuit pending the filing of a petition for a writ of certiorari. INTRODUCTION In a ruling "limited to the facts before us," the court of appeals held that (1) any qualified common law privilege for a reporter's confidential sources "would be overcome as a matter of law" on the facts of this case, thus making it "unnecessary" for the court "to rule on whether such a privilege exists under Rule
2 501" of the Federal Rules of Evidence, and (2) the First Amendment, as authoritatively construed in Branzburg v. Hayes, 408 U.S. 665 (1972), provides no basis for a reporter to resist a grand jury subpoena seeking information about the identity of the reporter's sources especially where, as in this case, the record establishes "probable cause to believe that the press served as a conduit to alert the targets of an asset freeze and/or searches." The New York Times Company v. Gonzales, 459 F.3d 160, 169, 171, 173 (2d Cir. 2006). After the full court of appeals denied rehearing en banc, the panel denied applicant's request for a 30-day stay and instead stayed issuance of the mandate for one calendar week to allow applicant to seek a stay from this Court. Applicant now seeks a stay from this Court pending the filing of a petition for a writ of certiorari. The application should be denied. Applicant cannot show a reasonable probability that four members of this Court would vote to grant review of the court of appeals' decision, which creates no conflict of authority and is tied to the unique facts of the case. Nor can applicant show that five members of this Court would vote to reverse the decision below, which assumed the existence of a qualified reporter's privilege, but found it overcome on the undisputed facts. Finally, entry of a stay threatens to frustrate the public interest in a prompt and thorough grand jury investigation of a vitally important matter. As the court of appeals stated: "The disclosure of an
3 impending asset freeze and/or search that is communicated to the targets is of serious law enforcement concern, and there is no suggestion of bad faith in the investigation or conduct of the investigation." 459 F.3d at 174; id. at 171 (finding a "clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need"). A stay would be particularly injurious to the public interest in this case because it would cause irreparable harm to a significant criminal investigation. The statute of limitations will imminently expire on December 3 and 13, 2006, on certain substantive offenses that the grand jury is investigating. Declaration of Patrick J. Fitzgerald ¶ 5, at 2-3 (Nov. 13, 2006). In light of that potential bar to the grand jury's completion of its work, delay holds a serious potential to thwart the full scope of a criminal investigation. In contrast, the harm to applicant is not nearly so great as it suggests. The court's narrow holding in this unusual case does not create a far-reaching precedent allowing disclosure into the confidentiality of a reporter's sources. And any claim that telephone records unrelated to the present investigation will be disclosed can be alleviated by applicant's own cooperation. The balance of equities therefore decidedly tips against the relief requested.
4 STATEMENT 1. Following the September 11, 2001, attacks on the World Trade Center and the Pentagon, the government intensified efforts to investigate fund-raising in the United States that supports terrorist activities. As part of that investigation, the government came to suspect that two entities the Holy Land Foundation (HLF) and the Global Relief Foundation (GRF) were raising funds for terrorism. The government therefore planned to freeze the assets of HLF and GRF, search their offices, or both, on December 4 and 14, 2001, respectively. One day before the government actions against HLF and GRF took place, however, New York Times reporters contacted HLF and GRF to seek comment on the imminent asset freezes by the government. No official or agent of the government was authorized to disclose the planned asset freezes or searches of HLF and GRF. Disclosures of law enforcement actions can violate federal criminal laws, including prohibitions against obstruction of justice. In each instance, the government believes that the advance notice provided by the New York Times' reporters reduced the effectiveness of the searches and compromised the safety of FBI agents who participated in them. 459 F.3d at 162- 163; Gov't C.A. Br. 5-7. GRF's headquarters were located in Chicago, Illinois. In response to learning of the leaks of the government's plans to move against HLF and GRF, the United States Attorney for the Northern
5 District of Illinois opened a grand jury investigation to identify the governmental employee or employees who told the New York Times' reporters about the government's imminent action. The government has at all times treated the two reporters as witnesses rather than subjects or targets of the investigation. But the government asked the New York Times to provide the reporters' telephone records for limited time frames in order to determine the sources of leaks from the government. When the New York Times refused to cooperate, the government informed it that, in view of the extraordinary circumstances of the investigation and the exhaustion of alternative avenues of inquiry, the government would seek to obtain the telephone records from third parties. ^1 459 F.3d at 164-165; Gov't C.A. Br. 7-9. 2. On August 9, 2004, the New York Times filed a civil action in the Southern District of New York seeking a declaratory judgment that privileges derived from the common law and the First Amendment barred the government from enforcing a subpoena for the reporters' telephone records held by third parties. The government moved to 1 The government originally notified the New York Times that it intended to seek telephone records covering a total of 33 days, but it ultimately narrowed the time frame of records sought to a total of eleven days, covering periods immediately before the reporters' communications to HLF and GRF on December 3 and 13, 2001, concerning imminent government action against those entities, and a period immediately before an article in the New York Times pertaining to GRF. The records now at issue cover the following time periods: September 27-30, 2001 (4 days), December 1-3, 2001 (3 days), and December 10-13 (4 days).
6 dismiss the complaint on the ground that the New York Times had an adequate remedy by moving to quash any such subpoenas under Federal Rule of Criminal Procedure 17. The district court denied the motion, concluding that it had authority and discretion to entertain the action for a declaratory judgment. The court then granted summary judgment for the New York Times. It held that both the common law and the First Amendment supplied a qualified privilege to reporters to protect confidential sources. It further held that, in the circumstances of this case, those privileges protected against compelled disclosure of the reporters' telephone records held by third parties. The New York Times Company v. Alberto Gonzales, 382 F. Supp.2d 457 (S.D.N.Y. 2005); 459 F.3d at 165. 3. The United States appealed, and the court of appeals reversed. The court first concluded that Rule 17(c) of the Federal Rules of Criminal Procedure did not preclude resort to the declaratory judgment procedure and that the district court did not abuse its discretion in deciding to entertain this action. The court also concluded the New York Times could assert whatever reporter's privileges might exist in order to oppose enforcement of subpoenas for telephone records held by third parties (e.g., the telephone service providers). The court concluded that, "so long as the third party plays an `integral role' in reporters' work, the records of third parties detailing that work are, when sought by
7 the government, covered by the same privileges afforded to the reporters themselves and their personal records." 459 F.3d at 168. The court, however, concluded that no valid claims of privilege exist in this case. Id. at 168-174. a. As to the common law, the court determined that it was "unnecessary * * * for us to rule on whether [a qualified reporter's] privilege exists under Rule 501" of the Federal Rules of Evidence, because "it would be overcome as a matter of law" on the facts of this case. 459 F.3d at 169. The court began by agreeing with the district court that any possible common law privilege for a reporter's confidential sources would be qualified, rather than absolute. ^2 Ibid. The court explained that "the government has a highly compelling and legitimate interest in preventing disclosure of some matters and that * * * interest would be seriously compromised if the press became a conduit protected by an absolute privilege through which individuals might covertly cause disclosure." Ibid. The court next held that it need not determine the precise scope of any qualified privilege, because "whatever standard is used, the privilege has been overcome as a 2 In the district court, the New York Times had unsuccessfully advocated an essentially absolute privilege, 382 F.Supp.2d at 501, but in the court of appeals, the Times effectively abandoned that position by relegating it to a footnote and stating that, because the government had assertedly failed to overcome a qualified privilege, "there is no need for th[e] [court of appeals] to go further at this time." Appl. C.A. Br. 61 n.22.
8 matter of law on the facts before us." ^3 Id. at 170. The court of appeals reasoned that the grand jury's investigation focused both on the unauthorized disclosure of the government's planned asset freezes and searches and on the reporters' communications to the foundations at issue. The reporters' communications, the court noted, "had the effect of alerting the [foundations] to those plans, perhaps endangering federal agents and reducing the efficacy of the actions." 459 F.3d at 170. The court concluded that the government had a "compelling interest" in protecting the confidentiality of its actions to thwart terrorist financing, particularly where unauthorized disclosures "may constitute a serious obstruction of justice." Ibid. The court also found it "beyond argument that the evidence from the reporters is on its face critical" to the grand jury investigation. 459 F.3d at 170. First, the court noted, the reporters were the only witnesses, other than the sources themselves, who could describe the circumstances of the leaks. Ibid. Second, "the reporters were not passive collectors of 3 The court of appeals described three different formulations of the asserted qualified privilege, 459 F.3d at 169-170, including that advocated by applicant (Appl. C.A. Br. 61): "a test requiring a showing that the information sought is `highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from available sources.'" 459 F.3d at 169-170 (quoting In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir. 1982)).
9 information whose evidence is a convenient means for the government to identify an official prone to indiscretion." Ibid. Rather, "the communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches." Ibid. The court thus determined that the reporters' information is "critical" to the investigation: "There is simply no substitute for the evidence they have." Ibid. The court stressed that its "holding is limited to the facts before" it, i.e., where "the reporters were active participants in the alerting of the targets." 459 F.3d at 171 & n.5. The court observed that, in this context where reporters made disclosures of planned asset freezes or searches to the targets of those actions the limited information sought by the grand jury would not imperil "a free press." Ibid. The court explained that "[l]earning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or common, to journalism." Ibid. The court added that it saw "no public interest in having information on imminent asset freezes/searches flow to the public, much less to the targets." Ibid. b. As to the First Amendment, the court of appeals recognized that this Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), stands as the "governing precedent regarding reporters' protection under the First Amendment from disclosing confidential sources." 459 F.3d at 172. The court stated that Branzburg held
10 that the First Amendment does not give reporters any privilege to withhold evidence from a grand jury greater than privileges held by other citizens. Ibid. (citing Branzburg, 408 U.S. at 690). While the court observed that Branzburg said that a grand jury investigation that is not conducted in good faith might give rise to First Amendment issues, ibid. (citing Branzburg, 408 U.S. at 707), the court concluded that the law enforcement interests in this case are genuine and serious, and "there is no suggestion of bad faith in the investigation or conduct of the investigation." Id. at 174. Accordingly, the court vacated the district court's judgment and remanded for it to enter judgment in accordance with the court of appeals' opinion, "without prejudice to the district court's redaction of materials irrelevant to the investigation upon an offer of appropriate cooperation." ^4 459 F.3d at 174. c. Judge Sack dissented. 459 F.3d at 174-189. Judge Sack would have adopted a qualified common law privilege for reporters in the "leak" context that contained three elements: "(1) that the 4 In both its common law and First Amendment discussions, the court of appeals noted that the New York Times expressed concern about the "overbreadth" of the proposed subpoenas, which would seek telephone records that would reveal sources irrelevant to the present investigation. The court's response was that this "problem can be remedied by redaction with the cooperation of the Times and its reporters." Id. at 174 & n.8; see also id. at 171 ("the government, if offered cooperation that eliminates the need for the examination of the Times' phone records in gross, cannot resist the narrowing of the information to be produced.").
11 information being sought is necessary highly material and relevant, necessary or critical, (2) that the information is not obtainable from other available sources, and (3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in news gathering and maintaining a free flow of information to citizens." Id. at 187 (citations and internal quotation marks omitted). On the present record, the dissent would have found that the government had not made the showings necessary to overcome a qualified privilege, so formulated. Id. at 187-189. In particular, Judge Sack believed that the government's failure to furnish specific information about the course of the grand jury investigation meant that it had not sufficiently established: the materiality and relevance of the information sought; the government's exhaustion of alternative means to identify the sources of the leaks; or the reasons why the public interest balancing test that the dissent fashioned would be satisfied. Ibid. 4. On September 1, 2006, the New York Times filed a petition for rehearing en banc. On September 7, 2006, the United States filed a motion requesting that the court of appeals expedite review of the appellee's petition for rehearing en banc. In support of its motion, the government submitted a declaration by United States Attorney Patrick J. Fitzgerald, stating that the five-year statute
12 of limitations on certain substantive offenses under investigation will expire in December 2006: The disclosures that are the subject of the grand jury's investigation include disclosures that were made on or about December 3 and December 13, 2001. Thus, the statute of limitations applicable to certain substantive offenses based on those disclosures will expire on or about December 3 and December 13, 2006. Declaration of Patrick J. Fitzgerald (September 3, 2006). On November 2, 2006, the full court of appeals denied the New York Times' petition for rehearing en banc without ordering a response from the government. Under Federal Rule of Appellate Procedure 41(b), the mandate would ordinarily issue seven calendar days after the denial of the petition for rehearing. Under Rule 41(d)(1), however, the filing of a motion for stay of the mandate delays the issuance of the mandate until the court disposes of the motion. On November 9, 2006, The New York Times filed a motion in the court of appeals for a 30-day stay of the mandate pending the filing of a petition for a writ of certiorari. The United States opposed that motion, again emphasizing the looming expiration of the statute of limitations for certain substantive crimes under investigation and attaching an affidavit from United States Attorney Fitzgerald. On November 16, 2006, the court of appeals entered an order staying the issuance of the mandate for one calendar week to permit the New York Times to seek a stay from this Court.
13 ARGUMENT THE APPLICATION FOR A STAY OF THE MANDATE PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI SHOULD BE DENIED To secure a stay pending the filing and disposition of a petition for writ of certiorari, an applicant must show that there is "a reasonable probability that certiorari will be granted * * *, a significant possibility that the judgment below will be reversed, and a likelihood of irreparable harm (assuming the correctness of the applicant's position) if the judgment is not stayed." Barnes v. E-Systems, Inc., 501 U.S. 1301, 1302 (1991) (Scalia, J., in chambers); see Planned Parenthood of Southeastern Pennsylvania v. Casey, 510 U.S. 1309, 1310 (1994) (Souter, J., in chambers). "[I]n a close case it may [also] be appropriate to `balance the equities' to explore the relative harms to applicant and respondent, as well as the interests of the public at large." Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers). When, as in this case, the court of appeals has denied a stay, the applicant's burden "is particularly heavy." Beame v. Friends of the Earth, 434 U.S. 1310, 1312 (1977) (Marshall, J., in chambers). "The burden is on the applicant to `rebut the presumption that the decision below -- both on the merits and on the proper interim disposition -- is correct.'" Casey, 510 U.S. at 1310 (quoting Rostker, 448 U.S. at 1308)). Applicant cannot make the requisite showing in this case. There is no reasonable probability that this Court will grant
14 certiorari or reverse the court of appeals' decision. The court of appeals did not resolve whether a common law qualified reporter's privilege exists in a grand jury investigation. Rather, it held only that, if one exists and whatever its scope, it was overcome on the facts of this particular case. That decision is correct, factbound, and creates no conflict of authority. The court's rejection of a First Amendment privilege is also consistent with, and indeed compelled by, Branzburg v. Hayes, and it too raises no conflict with other authority that would warrant review. Even if review were warranted on the general issue of a reporter's privilege, this case presents a highly atypical fact pattern, in which the reporters themselves were active participants in alerting the targets of asset freeze and searches to imminent government action. In that circumstance, the case for disclosure of the reporter's telephone records is compelling: the government's investigation is manifestly important; the reporters' information is critical; and "[t]here is simply no substitute for the evidence they have." 459 F.3d at 170. For those and other reasons including that this case involves an assertion of privilege in telephone records held by third parties, rather than the usual claim of privilege for the reporter's own records or testimony this case would provide an exceptionally unsuitable vehicle for consideration of the general legal issues that applicant seek to raise.
15 Finally, if it is necessary to consider the stay equities, the public interest strongly favors denial of the stay. The government is nearing the end of the limitations period on certain substantive criminal charges stemming from the disclosures at issue. While other criminal charges may remain, it would unreasonably frustrate the grand jury's investigation if delay prevented full and adequate consideration of the serious potential criminal charges at issue. That irreparable harm to the public interest strongly counsels against a stay. In contrast, the harm faced by applicant is limited and can be reduced by measures within applicant's control. A. Applicant Cannot Establish A Reasonable Probability That The Court Will Grant Certiorari Or Reverse the Judgment In This Case Applicant's primary submission (Appl. 8-12) is that conflicts in authority warrant this Court's review of both the qualified common-law privilege issue and the First Amendment issue. Contrary to that claim, the court of appeals' decision does not create or deepen any such asserted conflicts. And unique features of this case including the involvement of reporters in disclosures under investigation and their assertion of the privilege as to telephone records held by third parties further diminish any likelihood that the Court would grant certiorari or reverse the judgment below. 1. Applicant argues (App. 9-10) that courts are in disarray on whether the First Amendment protects reporters against
16 compulsion to reveal confidential sources in criminal proceedings. In fact, since this Court's rejection of any such privilege in the grand jury context in Branzburg v. Hayes, no federal appellate decision has recognized any First Amendment protection for reporters who interpose a confidential-source privilege against a grand jury subpoena. Branzburg itself resolved the question whether the First Amendment protects a reporter's confidential sources in a good- faith grand jury investigation: it held that no special First Amendment protection exists. 408 U.S. at 707-708; see Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991) (the First Amendment does not "relieve a newspaper reporter of the obligation shared by all citizens to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source"); University of Pennsylvania v. EEOC, 493 U.S. 182, 201 (1990) (Branzburg "rejected the notion that under the First Amendment a reporter could not be required to appear or to testify as to information obtained in confidence without a special showing that the reporter's testimony was necessary"). Since that time, every federal appellate court that has resolved the issue has followed Branzburg's holding. ^5 5 See, e.g., In re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1142 (D.C. Cir.), cert. denied, 125 S. Ct. 2977 (2005); In re Grand Jury Proceedings, 5 F.2d 397, 399-404 (9th Cir. 1993)
17 Applicant cites cases from three circuits (the First, Third, and Eleventh), apart from the court of appeals below, that, applicant claims, have recognized a reporter's privilege under the First Amendment in criminal cases. Appl. 9 (citing In re Special Proceedings, 373 F.3d 37, 45 (1st Cir. 2004); United States v. LaRouche Campaign, 841 F.2d 1176, 1181 (1st Cir. 1988); In re Grand Jury Subpoena of Williams, 766 F. Supp. 358, 367 (W.D. Pa. 1991), affirmed by an equally divided court, 963 F.2d 567 (3d Cir. 1980) (en banc), cert. denied, 449 U.S. 1126 (1981); United States v. Cuthbertson, 630 F.2d 139, 146-147 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986)). None of those decisions assists it. ^6 (no privilege in good-faith grand jury inquiry involving legitimate law enforcement needs, where information sought does not have only a remote and tenuous relationship to the investigation); United States v. Smith, 135 F.3d 963, 968-969 (5th Cir. 1998); cf. In re Grand Jury Proceedings, Storer Communications, 810 F.2d 580, 587- 588 (6th Cir. 1987) (state statute that conferred reporter's privilege on newspaper reporters, and not on broadcast media reporters, did not interfere with any "fundamental right" and thus triggered only rational basis equal protection scrutiny) (citing Branzburg). 6 Applicant also garners no assistance from prior decisions of the Second Circuit itself (Appl. 9): the panel explained why none of its precedent involved circumstances comparable to this case (459 F.3d at 173); the full court of appeals denied rehearing en banc, thus indicating no dissonance in circuit precedent; and, in any event, a claim of intra-circuit conflict would not warrant this Court's review, see Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). Applicant's citation (Appl. 9-10) of civil cases likewise does not advance its claim of a conflict; this case involves grand jury subpoenas and is squarely controlled by Branzburg.
18 In Special Proceedings, the First Circuit held that Branzburg precludes recognition of a First Amendment reporter's privilege in the context of a special prosecutor's investigation, a context the court found analogous to a grand jury investigation. 373 F.3d at 44-45 ("In Branzburg, the Supreme Court flatly rejected any notion of a general-purpose reporter's privilege for confidential sources, whether by virtue of the First Amendment or of a newly hewn common law privilege. * * * Branzburg governs in this case even though we are dealing with a special prosecutor rather than a grand jury."). The First Circuit's earlier decision in LaRouche considered, not a grand jury subpoena, but a defendant's effort to subpoena for trial "outtakes" of an television network's interview with a prospective government witness. 841 F.2d at 1177, 1182; cf. Special Proceedings, 373 F.3d at 45 (noting that LaRouche involved a "situation distinct from Branzburg"). In Williams, the Third Circuit affirmed a district court decision by an equally divided en banc court, 963 F.2d 567, thus establishing no precedent, see Rutledge v. United States, 517 U.S. 292, 204 (1996). In Cuthbertson, similar to LaRouche, the Third Circuit considered privilege claims only as to a defense subpoena for statements of government trial witnesses and recognized a qualified privilege in that context (630 F.2d at 146-147); no grand jury subpoena was at issue. Finally, in Caporale, the Eleventh Circuit applied a
19 reporter's privilege in a post-trial evidentiary hearing concerning allegations of jury tampering. 806 F.2d at 1504. Again, like the other decisions on which applicant relies, Caporale did not involve a grand jury subpoena. In addition, none of the cases cited by applicant establishes an absolute privilege; at most, they point towards a qualified privilege. E.g., Caporale, 806 F.2d at 1504; Cuthbertson, 630 F.3d at 146-147. In light of the court of appeals' unequivocal ruling in this case that any qualified common-law privilege (regardless of its formulation) is overcome by the strength of the government's interest and the necessity of acquiring information from applicant, any qualified First Amendment privilege would also have to yield. For that reason as well, the decision below would not create any conflict worthy of this Court's review. In sum, the courts are not in disarray on the question presented by this case: whether reporters may assert a constitutional privilege against revelation of their confidential sources in response to a grand jury investigation conducted in good faith. Consistent with this Court's holding in Branzburg, the federal appellate courts have uniformly and correctly held that they may not. ^7 7 Applicant's reliance (Appl. 10 n.5) on state court decisions is also misplaced. Only one of the state cases applicant cites applied a First Amendment reporter's privilege in a grand jury investigation after Branzburg. See In re Letellier, 578 A.2d 722 (Me. 1990). That case misconstrued Branzburg and relied on
20 2. Applicant also argues (Appl. 11) that conflicts over the existence and scope of a common law reporter's privilege under Federal Rule of Evidence 501 warrant this Court's review. Contrary to applicant's claim, there is no reasonable probability that this Court will grant certiorari to review that issue. Nor is it likely that the Court would reverse the court of appeals' holding that, even if a reporter's privilege existed, it would be overcome on the unusual facts of this case. a. The ultimate basis for the court of appeals' decision is that, even if the law recognized a qualified reporter's privilege in the context of a good faith grand jury investigation, the privilege would be overcome on the unique facts of this case. The court accordingly found it "unnecessary * * * to rule on whether [a qualified reporter's] privilege exists under Rule 501." 459 F.3d at 169. In so holding, the court considered a variety of formulations of the qualified privilege and held that "whatever standard is used, the privilege has been overcome as a matter of law on the facts before us." ^8 Id. at 170. One of the formulations First Circuit decisions applying a reporter's privilege in civil proceedings. Id. at 724-726. In any event, Letellier ultimately required the reporter to disclose the subpoenaed material to the grand jury, so the recognition of the privilege was not essential to the judgment. Id. at 727-730. And, as noted in the text, any qualified privilege would similarly be overcome on the facts here. 8 The panel majority also noted that the facts would overcome even the formulation of the privilege favored in Judge Sack's dissenting opinion, stating: "We harbor no doubt whatsoever that, on the present record, the test adopted by our dissenting colleague
21 the court considered was the formulation specifically advocated by applicant. Compare id. at 169-170 with App. C.A. Br. 61; see page 8, note 3, supra; Appl. 2. The only legal holding of the court was that if any privilege exists in this context, it would be qualified, rather than absolute. 459 F.3d at 169-170. Applicant does not seriously contest that holding. As a result, this case presents no legal issue concerning the existence or scope of a qualified common law reporter's privilege to protect confidential sources in a criminal case: the panel assumed the standard applicant advocated and ruled against it on the facts. After a detailed discussion of the facts (459 F.3d at 169-171), the court of appeals correctly concluded: There is therefore a clear showing of a compelling governmental interest in the investigation, a clear showing of relevant and unique information in the reporters' knowledge, and a clear showing of need. No grand jury can make an informed decision to pursue the investigation further, much less to indict or not to indict, without the reporters' evidence. It is therefore not privileged. Id. at 171. There is no reasonable probability that this Court would grant certiorari to review the court of appeals' conclusion that, on the particular facts and record in this case, the qualified privilege that applicant advocates was overcome. b. Applicant asserts (Appl. 5, 12, 13), that the court's for overcoming a qualified privilege has been satisfied." 459 F.3d at 171 n.5.
22 holding that the privilege was overcome lacked evidentiary support, such that "the Second Circuit effectively held that reporters' First Amendment and federal common law-based privileges will always be overcome provided that counsel for the government simply asserts, without submitting evidence of any kind, that he has satisfied the applicable test." Appl. 12. The court, however, explicitly found the government's showing sufficient in this case because "unique knowledge of the reporters" lay "at the heart of the investigation" in light of their role in "informing the targets" of upcoming assets freezes. 459 F.3d at 171. The court could not have been clearer that its holding was "limited to the facts" before it (which are far from a typical fact pattern) and "in no way suggest[ed] that [the showing made here] would be adequate in a case involving less compelling facts." Ibid. Accordingly, the court of appeals itself placed careful limits on its holding and did not announce the far-reaching rule that applicant ascribes to it. In addition, the record amply supports the conclusion that the government exhausted all reasonable means of investigation before seeking to subpoena the telephone records at issue. The record establishes that government agents searched HLF's and GRF's offices on December 4 and 14, 2001. The articles that contemporaneously appeared in the New York Times made it evident that government plans for imminent action had been leaked. After the searches, the
23 United States Attorney's office and the FBI "commenced an investigation to determine whether government officials were responsible for disclosing to the Times that a search of GRF's office was imminent." 382 F.Supp.2d at 467. More than eight months elapsed from the December 2001 searches before the United States Attorney wrote to applicant to request voluntary cooperation from the reporter involved in the GRF disclosure and production of his telephone records for a defined period related to that disclosure. Ibid. (discussing letter from Patrick J. Fitzgerald dated August 7, 2004) Applicant refused cooperation, stating that its reporter's newsgathering activities and discussions with confidential sources were privileged. Ibid. Nearly two years then passed before the United States Attorney renewed contacts with applicant, informing it that the government's inquiry now encompassed the HLF disclosure. The United States Attorney requested voluntary cooperation from the reporters involved in both disclosures. At that time, Fitzgerald notified applicant that, pursuant to the Department of Justice Guidelines for Issuance of Subpoenas to Members of the News Media, 28 C.F.R. 50.10, he had been "duly authorized to obtain and review information from other sources, particularly those entities providing telephone service to The New York Times, [and the reporters involved]." 382 F.Supp.2d at 467. Subsequently, applicant requested a meeting with senior officials of the
24 Department of Justice to discuss Fitzgerald's efforts to obtain telephone records in this case. In declining to meet, Deputy Attorney General James Comey specifically assured applicant that "[h]aving diligently pursued all reasonable alternatives out of regard for First Amendment concerns, and having adhered scrupulously to [Department of Justice] policy, including a thorough review of Mr. Fitzgerald's request within [the Department of Justice], we are now obliged to proceed." Id. at 469. A critical component of the Department of Justice Guidelines is that All reasonable attempts should be made to obtain information from alternative sources before considering issuing a subpoena to a member of the news media, and similarly all reasonable alternative investigative steps should be taken before considering issuing a subpoena for telephone toll records of any member of the news media. 28 C.F.R. 50.10(b). In order to issue such a subpoena, the Attorney General personally must authorize that action. 28 C.F.R. 50.10(e) ("No subpoena may be issued to any member of the news media or for the telephone toll records of any member of the new media without the express authorization of the Attorney General."). Before seeking the Attorney General's involvement and authorization, "the government should have pursued all reasonable investigation steps as required by paragraph (b) of this section." 28 C.F.R. 50.10(g)(1). The Attorney General's authorization reflects a determination that such pursuit had occurred. And in
25 the district court the government submitted an affidavit attesting that it has "reasonably exhausted alternative investigative means." 459 F.3d at 171; 382 F.Supp.2d at 511. In light of the overall context of this case, the record supports the inference that the government pursued all reasonable alternative investigative steps to obtain the information it sought before seeking the telephone records at issue. ^9 The timing of the government's initial contact with applicant eight months after the disclosures in question supports the inference that the government had diligently, but unsuccessfully, pursued other means of identifying the government official or officials who provided information to applicant's reporters. Nearly another two years ensued before the government renewed its requests to applicant during which time the United States Attorney obtained authorization from the Attorney General to issue subpoenas. Before seeking such authorization, the United States Attorney was required by regulation to exhaust alternative investigative means, and a court can presume that the United States Attorney carried out that requirement in good faith. See United States v. Armstrong, 517 9 The Attorney General's Guidelines cover review of telephone records even though no appellate decision before this case had permitted a claim of reporter's privilege in that context, and, as discussed below, see page 32, infra, no such claim is warranted. The decision to seek telephone records in this case rather than to compel testimony or documents from the reporters themselves itself represented a measured approach that took into account the reporters' interests.
26 U.S. 456, 464 (1996) ("in the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties") (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Deputy Attorney General reiterated that the Department had pursued "all reasonable alternatives out of regard for First Amendment concerns" before approving the review of the reporters' telephone records. 382 F.Supp.2d at 469. Against that background, it would be unreasonable to reject the government's declaration that all reasonable steps had been exhausted based on speculation that, despite determinations at the highest level of the Justice Department that other means had been exhausted, the government had overlooked or failed to employ obvious alternative means of identifying the sources of the leaks. c. Contrary to applicant's claim (Appl. 11), the court of appeals' decision does not conflict with Jaffee v. Redmond, 518 U.S. 1 (1996), in which this Court recognized a psychotherapist- patient privilege under Rule 501. To the extent that applicant suggests that because Jaffee rejected case-by-case balancing in the psychotherapist-patient context, it forbids balancing of interests concerning any claim of privilege, applicant is clearly mistaken. See, e.g., Roviaro v. United States, 353 U.S. 53, 60-62 (1957) (qualified informant's privilege requires "balancing the public interest in protecting the flow of information against the
27 individual's right to prepare his defense"). In any event, applicant effectively abandoned any claim of an absolute privilege in the court of appeals, see page 7, note 2, supra, and does not explicitly advocate such a privilege here. 3. The unlikelihood that this Court would grant review in his case is underscored by the Court's recent denial of certiorari in a case raising highly similar issues. "The action of the Court on an earlier petition for certiorari involving the same or similar questions * * * is of course relevant" to whether a stay should issue. Robert L. Stern, et al., Supreme Court Practice 794 n.71 (8th Ed. 2002) (collecting citations); see, e.g., Packwood v. Senate Select Committee, 510 U.S. 1319, 1321 (1994) (Rehnquist, C.J.) ("Our recent denial [of certiorari] demonstrates quite clearly the unlikelihood that four Justices would vote to grant review on this issue."); South Park School District v. United States, 453 U.S. 1301, 1303-1304 (1981) (Powell, J.) (denying stay because there was no reasonable probability that review would be granted as Court had denied review in an "almost identical" case three years earlier). In June 2004, this Court denied a petition for a writ of certiorari in a case in an analogous posture and raising nearly identical arguments in favor and against the grant of review. In
28 re: Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir.), ^10 cert. denied, 125 S. Ct 2977 (2005). In that case, the court of appeals' rationale bore a striking resemblance to the rationale of the court of appeals in this case. Judge Sentelle's opinion for the court stated: The District Court held that neither the First Amendment nor the federal common law provides protection for journalists' confidential sources in the context of a grand jury investigation. For the reasons set forth below, we agree with the District Court that there is no First Amendment privilege protecting the evidence sought. We further conclude that if any such common law privilege exists, it is not absolute, and in this case has been overcome by the filings of the Special Counsel with the District Court. 438 F.3d at 1142 (Sentelle, J., Opinion for the Court). Judge Henderson's concurring opinion further stated: Because my colleagues and I agree that any federal common-law reporter's privilege that may exist is not absolute and that the Special Counsel's evidence defeats whatever privilege we may fashion, we need not, and therefore should not, decide anything more today than that the Special Counsel's evidentiary proffer overcomes any hurdle, however high, a federal common-law reporter's privilege may erect. Id. at 1159 (Henderson, J., concurring). In light of this Court's denial of certiorari in Miller in the face of legal arguments nearly identical to those presented here there is no reasonable probability that the Court will grant review in this case. A further factor undercutting the likelihood of this Court's 10 The case was decided on February 15, 2005. The opinion was reissued on February 3, 2006. 438 F.3d at 1141.
29 review is that Congress has periodically considered legislative proposals that would create a federal reporter's privilege. See 382 F. Supp.2d 507 n.45. In fact, bills are currently under consideration by the Congress. ^11 This active consideration of reporter's privilege legislation in both Houses of Congress provides strong additional reason for this Court's restraint. This Court has stated that "we are disinclined to exercise this authority [to recognize new privileges under Rule 501] expansively. We are especially reluctant to recognize a privilege in an area where it appears that Congress has considered the relevant competing concerns but has not provided the privilege itself. * * * The balancing of conflicting interests of this type is particularly a legislative function." University of Pennsylvania v. EEOC, 493 U.S. 182, 190 (1990). See also Branzburg, 408 U.S. at 706 ("At the federal level, Congress has freedom to determine 11 On July 18, 2005, Representative Mike Pence, with co- sponsors, introduced in the House the Free Flow of Information Act of 2006, H.R. 3323, 109th Cong., to establish a qualified reporter's privilege. On May 18, 2006, Senator Richard Lugar, with co-sponsors, introduced in the Senate the Free Flow of Information Act of 2006, S. 2831, 109th Cong., to establish a qualified reporter's privilege. On September 20, 2006, the Senate Committee on the Judiciary held a hearing on the subject of "Reporters' Privilege Legislation: Preserving Effective Federal Law Enforcement," at which the Deputy Attorney General testified. For the House and Senate bills and a notice of the Judiciary Committee hearing including the prepared testimony of several witnesess, see: http://thomas.loc.gov/cgi- bin/query/z?c109:H.R.3323 (House Bill); http://www.govtrack.us/data/us/bills.text/109/s/s2831.pdf (Senate Bill); http://judiciary.senate.gov/hearing.cfm?id=2070 (Judiciary Committee Hearing).
30 whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate."). In view of Congress's current consideration of qualified-privilege legislation to protect a reporter's confidential sources, intervention by this Court to create such a privilege is especially unlikely and unwarranted. 4. Even if the issue of a reporter's privilege to protect confidential sources might other otherwise warrant this Court's attention, this case would be a singularly unsuitable vehicle for review because of its atypical facts. First, as the court of appeals emphasized, this case does not involve reporters who merely acquired and then published information from confidential sources. Rather, the reporters disclosed information to the targets of imminent law enforcement action before that action took place. As the court explained, applicants' "reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion." 459 F.3d at 170. Rather, "the communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches." Ibid. Thus, the reporters' actions here lie at the core of the grand jury investigation but at the periphery of normal
31 news gathering. In light of those facts, the court of appeals found it beyond question that the reporters' information "is critical to the present investigation"; "[t]here is simply no substitute for the evidence they have." 459 F.3d at 170. The court also found no need to analyze prior circuit precedent concerning First Amendment claims of the press in other judicial contexts because "[n]one involved a grand jury subpoena or the compelling law enforcement interests that exist when there is probable cause to believe that the press served as a conduit to alert the targets of an asset freeze and/or searches." Id. at 173. The court thus "emphasize[d] that [its] holding is limited to the facts before us." Id. at 171. The narrowly limited nature of the court's holding undermines any claim that this case should be the flagship for defining a qualified privilege for reporters in a criminal investigation. The fact that the reporters here relayed disclosures from a government source to targets of an imminent law enforcement action substantially weakens any claim of freedom of the press. It also sets this case apart from others that have considered reporter's privilege issues. Accordingly, this unusual case constitutes a poor vehicle for certiorari. ^12 12 As noted, the government has treated the reporters whose calls are at issue as witnesses, rather than subjects or targets of the grand jury investigation. Nevertheless, applicant's reporters have admitted contacting representatives of HLF and GRF in advance of the government's planned actions to seek comment. The
32 Second, this case does not involve a direct effort to obtain information from a reporter, either through testimony or subpoenaed records in the hands of the reporter herself. Rather, this case involves telephone records held by third parties. Application of a reporter's privilege to such records would be wholly unwarranted, even if the reporter herself could assert a qualified privilege. No one has a justified expectation of privacy in the telephone numbers of other persons whom the individual calls or who call the individual: those numbers are conveyed to the telephone company and form part of its business records. See Smith v. Maryland, 442 U.S. 735, 742-746 (1979). Whatever restrictions might be placed on the grand jury's acquisition of evidence from reporters themselves, no such restrictions should be placed on acquisition of telephone records from third parties. Reporters might find it essential to use the telephone to talk with sources. But they might equally claim that it is essential to take airplanes, rent hotel rooms, and use taxis to visit and meet with confidential sources. Any suggestion that a press privilege would protect against the grand jury's ability to subpoena that evidence from third parties would be work a major inroad into the government's compelling interest in tracing the origins and nature of such disclosures distinguishes this investigation from the mine run of cases raising claims of a reporter's privilege.
33 grand jury's investigatory functions. ^13 See Reporter's Committee v. AT&T, 593 F.2d 1030, 1048-1049, 1053 (D.C. Cir. 1978) (rejecting claimed right of reporters to advance notice of subpoenas issued to telephone service provider). Accordingly, there is substantial reason to question whether a reporter's privilege claim can even be asserted in the present case. See Gov't C.A. Br. 46-50 (arguing against recognition of such a claim). The existence of that threshold issue amplifies the reasons for finding no reasonable probability that certiorari would be granted in this case. ^14 13 The court of appeals relied on circuit precedent in holding that a reporter can assert a privilege in material in the hands of a third party "so long as the third party plays an `integral role' in reporters' work." 459 F.3d at 168. The court was willing to say only that "arguably" that analysis would not cover "lodging, air travel, and taxicabs." Id. at 168 n.3. But the logic of the court's analysis carries a broad potential to reach a variety of records held by third parties, unjustifiably giving the press a privilege vastly more protective than any other privilege. 14 Two additional threshold issues further decrease the suitability of this case for certiorari review. First, the court of appeals held that the Declaratory Judgment Act permitted the district court to entertain this action, notwithstanding the existence of Federal Rule of Criminal Procedure 17(c), which specifically provides a means to move to quash a grand jury subpoena. Second, the court of appeals held that the district court did not abuse its discretion in entertaining this declaratory judgment action, notwithstanding the existence of a plainly more appropriate forum: the district court in the Northern District of Illinois supervising the underlying grand jury investigation. 459 F.3d at 167. Resolution of either of those threshold issues against applicant would obviate the need to consider the questions applicant seeks to raise.
34 B. The Balance of Equities And The Public Interest Weigh Heavily Against Granting a Stay of the Mandate In addition to applicant's inability to demonstrate that this Court would grant review and reverse the court of appeals' decision, there is additional and highly significant reason for denying a stay: the balance of equities strongly favors such a denial. The government is pursuing a criminal investigation of the utmost importance, and further delay threatens to thwart the grand jury's ability to complete its vital work. The harm to applicant's interests, in contrast, is far more attenuated than the application acknowledges. 1. As the government informed the court of appeals, the five- year statute of limitation on substantive criminal offenses relating to the disclosure of confidential information concerning asset freezes and searches of HLF and GRF will expire on December 3 and 14, 2006, respectively. While other potential criminal charges may remain, it would be extraordinarily injurious to the public interest to permit the statute of limitations to expire without permitting the grand jury to do its work to consider any and all crimes that may have been committed in this sensitive and significant case. See United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991) ("The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred."); Branzburg, 408 U.S. at 701 ("A grand jury
35 investigation is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.") (internal quotation marks omitted). In this case, the court of appeals made clear that "[t]he grand jury * * * has serious law enforcement concerns as the goal of its investigation." 459 F.3d at 170. It also emphasized the centrality of the reporters' information to that inquiry: "the unique knowledge of the reporters is at the heart of the investigation, and there are no alternative sources of information that can reliably establish the circumstances of the disclosures of grand jury information and the revealing of that information to targets of the investigation." Id. at 171. Reviewing applicant's telephone records is thus essential to the grand jury's work. Under those circumstances, the public interest in completing the investigation, and avoiding irreparable injury through the running of the limitations period, is paramount to respondent's claims of irreparable harm. Staying the mandate pending the filing and disposition of a certiorari petition, even on an expedited basis, would surely preclude the grand jury from completing its work before the imminent running of the limitations period. Because of the harm faced by the government if this Court granted a stay, applicant's reliance (Appl. 7) on In re Roche, 448 U.S. 1312 (1980 (Brennan, J.) is misplaced. In that case, a
36 reporter was held in civil contempt for failing to reveal, at a deposition in anticipation of state judicial disciplinary proceedings, the individuals on a list of hearing witnesses who had served as confidential sources for the reporter's investigation of alleged judicial misconduct. Id. at 1312-1313. In granting a stay, Justice Brennan noted that, absent a stay, the reporter faced either revelation of his sources or going to jail, while, with a stay, "the judge subject to the disciplinary inquiry can obtain the information he seeks by deposing the hearing witnesses." Id. at 1316. Justice Brennan also noted that the disciplinary committee could alleviate any burden on the State by "continu[ing] disciplinary proceedings until resolution of applicant's petition for a writ of certiorari." Id. at 1316-1317. Here, neither of those things is true: the government does not have an alternative source for the information at issue, and delay to consider a certiorari petition would inevitably mean that certain potential charges would be time-barred. 2. While applicant claims irreparable injury if a stay is not granted, any claim of harm to applicant's interests must be analyzed carefully, in light of the specific circumstances of this case. Such an analysis reveals only minimal inroads on applicants' interests, at best. The government sought third-party telephone records pertaining to applicant only after exhausting all reasonable alternative means
37 and engaging in a thorough deliberative process within the Department of Justice. See 459 F.3d at 164; 28 C.F.R. 50.10 (Department of Justice Guidelines for Issuance of Subpoenas to Members of the News Media); see also 382 F.Supp.2d at 481-484 (describing the Department of Justice's Guidelines in the course of holding that they do not confer privately enforceable rights). Pursuant to this policy, the Department of Justice issues media- related subpoenas only when necessary to obtain important, material evidence that cannot be reasonably obtained through other means. The painstaking process and internal discretion employed by the Department of Justice in this area reduces any claims of broad harm to the press from denying a stay in this case. ^15 Further undermining any suggestion of sweeping harm to the press is the context of the reporters' actions in this case. The government's criminal inquiry in this instance responded to highly unusual circumstances. In the district court, applicants' reporters asserted that, in the wake of the September 11, 2001, attacks, they wrote 78 articles for the New York Times concerning terrorism and related threats, "dozens of which articles * * * contain information attributed to confidential sources." 382 F.Supp.2d at 499. Yet the vast majority of those articles 15 See Branzburg, 408 U.S. at 706-707 (noting the Department's Guidelines and observing that "[t]hese rules are a major step in the direction the reporters herein desire to move" and "may prove wholly sufficient to resolve the bulk of disagreements and controversies between press and federal officials").
38 triggered no governmental inquiry to applicant whatsoever. What provoked the current inquiry were their phone calls to HLF and GRF seeking comment on imminent, non-public law enforcement action. As the court of appeals concluded: "We see no danger to a free press" in denying application of the privilege to applicant here; "[l]earning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or common, to journalism." 459 F.3d at 171; id. at 171 n.5 ("we see no public interest in having information on imminent asset freezes/searches flow to the public, much less to the targets"). The New York Times asserts that, "[w]ithout a stay, the government would immediately be entitled to obtain and review the telephone records it seeks which will reveal the identity of numerous confidential sources of The Times and its reporters." Appl. 7. But the court of appeals provided a means to alleviate such claims of "overbreadth" on remand to the district court. The court remanded the case "without prejudice to the district court's redaction of materials irrelevant to the investigation upon an offer of appropriate cooperation." Id. at 174. Nothing inherent in this investigation makes it necessary for the government to review telephone records that "would reveal the identities of dozens of confidential sources that have no relationship whatsoever to the government's investigation" (Appl. 4) unless applicant makes such a review necessary by failing to cooperate. Appropriate
39 cooperation in this context, of course, must give the government a full and expeditious opportunity to identify phone numbers that are connected with the leaks and disclosures to the targets in this case. It is essential that any such narrowing process occur promptly, in light of the severe deadlines that the grand jury faces. But consistent with those requirements, applicant has the power to limit the extent of disclosure of confidential-source telephone numbers to those that are relevant to the present investigation. As for the broader claims of irreparable harm to the news gathering process, applicant offers the same arguments and claims that were advanced in Branzburg. 408 U.S. at 693-694. Events since 1972 confirm the conclusions the Court drew in that case: the occasional disclosure of confidential sources inlegal proceedings does not have the dire consequences hypothesized by reporters. Investigative journalism continues to flourish. See, e.g., 382 F.Supp.2d at 498 (describing, inter alia, exposure of Watergate through information from "Deep Throat"; revelation improper activities during the Carter presidency; reporting on the Iran/Contra affair; and exposure of information concerning Abu Ghraib all of which depended in part on confidential sources). Experience shows that requiring the media to identify sources when necessary to conduct thorough and complete grand jury investigations has not restricted the free flow of information to
40 the press and certainly not to a degree that outweighs the public interest in the truth-seeking function of grand jury investigations. In sum, balancing the significant harm to the public interest in effective grand jury investigations and fair enforcement of the criminal law against the attenuated harm to the news gathering process, the scales tip decidedly against granting a stay in this case. CONCLUSION The application for a stay of the mandate pending the filing of a petition for a writ of certiorari should be denied. Respectfully submitted. PAUL D. CLEMENT Solicitor General ALICE S. FISHER Assistant Attorney General MICHAEL R. DREEBEN Deputy Solicitor General DEBRA RIGGS BONAMICI Assistant United States Attorney NOVEMBER 2006
Following my comments, below, is the text of five docket entries, the text of Walton's District Court Order denominated Docket No. 190, and the text of the government (Fitzgerald's) appeal denominated Docket No. 204. The "Accompanying Memorandum Opinion," Docket No. 191, is presently under seal.
Why would Fitzgerald appeal Walton's order of November 15? A first impression is apt to be "because Fitzgerald thinks Walton gave Libby too much evidence," but that isn't necessarily so. With Walton's rulings (regarding the list of admissible evidence, substitutions for classified information, and court's rationales for accepting substitutions and rejecting evidence) being under seal, there's not much to base an opinion on, but I'm game to speculate anyway.
Despite his Memorandum on November 16 [Doc 197], it's just as likely, in my opinion, that Fitzgerald is satisfied with Walton's specific rulings in this case, and merely aims to have the CIPA issues conclusively resolved before trial, to take the issues of "'use, relevance, and admissibility' at trial of certain classified documents and information" away from Libby, in the event the jury reaches a guilty verdict. It makes sense from the prosecution's point of view, to reduce the risk (and cost) of a post-trial appeal, and to get authoritative confirmation that the Court's evidentiary rulings relating to the application of CIPA are on sound and firm legal ground before conducting the trial. See also, Section 7 of the Classified Information Procedures Act (alternate citation) and Section 2054 of the United States Attorneys' Criminal Resource Manual.
Walton's Court has modified it's rationale for holding some substitute evidence admissible and sufficient, which indicates a certain amount of legal volatility - an amount that Fitzgerald would reasonably prefer to reduce now rather than during the trial.
A "big picture" reason for taking the appeal is to create an opportunity to resolve a split between circuits regarding the standard to be applied when evaluating the admissibility of classified information. CIPA is an important statute in prosecuting terrorism cases, and the government is persistently advancing the argument that the courts must balance the probative worth of the evidence against the potential harms to national security.
See McVeigh's 3/96 Memo Summarizing The Classified Information Procedures Act for a dated summary of the split between Circuits, and FN 26 in this June 2006 Law Review article by Ellen Yaroshefsky citing splits at both the discovery and admissibility stages of CIPA. Walton's September 21, 2006 Memorandum Opinion and Order [Doc 145], expressly rejected the prosecution-proposed three-step inquiry at the CIPA 6(a) (discovery) stage:
a classified document (or testimony based on a classified document) should be precluded from use at trial unless the Court determines
- that the document is relevant;
- that the document is "helpful to the defense," and
- that the defendant's interest in disclosure of the document outweighs the government's need to protect the classified information.
In an Order dated November 16 [Doc 193], Judge Walton expressed that a balancing involving national security interests on the one hand is inappropriate at the CIPA 6(c) (sufficiency of substitutions) stage, reversing his previous [Nov 13, Doc 178] statement, "Although Section 6(c) of the CIPA does not list specific factors to be considered when determining whether a substitution is acceptable, a court must at bottom balance the government's national security interests in protecting classified information against the defendant's ability to put on his defense."
The "big picture" can play in a range of cases, see, e.g., Judge issues secret ruling about secrets in Nacchio case, where CIPA is being used to keep evidence of classified government contracts with Qwest out of an insider trading trial. "The defense has said Nacchio was aware of classified government contracts awarded to Qwest and of plans for future government business dealings with the Denver-based company." NSA wiretapping perhaps?
For the case in hand, this appeal is an opportunity for Libby to get a more favorable ruling (a ruling that permits him to present increased volume and detail of events in the Office of the Vice President, other than those directly involved in Wilson's trip to Niger - evidence intended to create a firm impression of "Libby being fully preoccupied" in the minds of the jurors). Libby probably holds that his defense has been hamstrung by a stilted application of CIPA. There is evidence that the government's proposed substitutions are sparse. Walton's Opinion of November 13 ("balancing" rationale since vacated) concluded with, "the substitutions currently proposed by the government will not provide the defendant with substantially the same ability to make his defense. Accordingly, the government must go back to the drawing board and come forth with a more balanced proposal."
The timeline for resolution of the pre-trial interlocutory appeal is indefinite, and depends in part on the workload at the Circuit Court for the District of Columbia.
In the case of James H. Giffen in the Southern District of New York, the government took an interlocutory CIPA Section 7 appeal to the 2nd Circuit on October 25, 2005.
Invoking the interlocutory appeal provision contained in §7 of CIPA, the government appealed the district court's decision. Government briefs filed with the U.S. Court of Appeals for the Second Circuit stated that prosecutors may be forced to drop the case against Mr. Giffen because of Judge Pauley's decision allowing Mr. Giffen to present a public authority defense.
The government asserted that many of the highly classified documents sought by the defense were irrelevant and that Mr. Giffen's review of the top-secret information would jeopardize national security interests and place the government in an "untenable" position. The defense responded simply that Mr. Giffen believed himself to be working for the CIA and other U.S. government agencies and, therefore, is entitled to assert a public authority defense.
Oral argument in that appeal was heard on Jan. 25, 2006, and as of October 26, 2006, the 2nd Circuit had not rendered its decision.
11/15/2006 189 ORDER as to I. LEWIS LIBBY; that the government shall complete a classification review of this Court's November 15, 2006 Opinion by December 1, 2006. That the government shall complete a classification review of the pleadings filed under seal by January 15, 2007, and the transcripts of the classified proceedings by March 2, 2007. That the government shall provide redacted copies of these items to the Court immediately upon their completion; Signed by Judge Reggie B. Walton on 11/15/06. (erd) (Entered: 11/15/2006)
11/15/2006 190 ORDER as to I. LEWIS LIBBY; that the defendant's use of classified information and documents at trial shall be limited as set forth in the accompanying Memorandum Opinion; Signed by Judge Reggie B. Walton on 11/15/06. (erd) (Entered: 11/15/2006)
11/15/2006 191 MEMORANDUM OPINION as to I. LEWIS LIBBY. (CLASSIFIED INFORMATION) (erd) (Entered: 11/15/2006)
11/22/2006 204 NOTICE OF APPEAL (Interlocutory) by USA as to I. LEWIS LIBBY re 190 Order, 191 Memorandum Opinion. Fee Status: IFP, Govt. Parties have been notified. (erd) (Entered: 11/22/2006)
11/22/2006 Transmission of Notice of Appeal and Docket Sheet as to I. LEWIS LIBBY to US Court of Appeals re 204 Notice of Appeal - Interlocutory (erd) (Entered: 11/22/2006)
The order being appealed is contained in Doc 190. There is no indication that the government objects to the Doc 189 "classification review" Order of the same date.
Doc 190 reads ...
On September 27, 2006 this Court commenced a series of hearings pursuant to Section 6(a) of the Classified Information Procedures Act ("CIPA"), 18 U.S.C. App. III, § 6(a)(2000), to address the "use, relevance, and admissibility" at trial of certain classified documents and information the defendant intends to use as part of his defense. For the reasons set forth in the accompanying Memorandum Opinion, it is hereby,
ORDERED that the defendant's use of classified information and documents at trial shall be limited as set forth in the accompanying Memorandum Opinion.
SO ORDERED this 15th day of November, 2006.
Finally, with that background, the text of the November 22 paper that initiates an appeal from the Opinion (Ruling) and Order of November 15 ...
Case 1:05-cr-00394-RBW Document 204 Filed 11/22/2006 Page 1 of 1 United States District Court for the District of Columbia UNITED STATES OF AMERICA ) ) vs. ) Criminal No. 05-CR-394 ) I. LEWIS LIBBY, also known as ) Scooter Libby ) _______________________________________) NOTICE OF APPEAL Name and address of appellant United States of America Name and address of appellant's attorney Patrick J. Fitzgerald, Special Counsel United States Attorney's Office 219 South Dearborn, 5th Floor Chicago, Illinois 60604 Offense: 18 U.S.C. §§ 1503, 1001(a)(2), and 1623 Concise statement of judgement or order, giving date, and any sentence Order and Memorandum Opinion filed and entered on the docket on November 15, 2006, pursuant to CIPA § 6(a) of the Classified Information Procedures Act, 18 U.S.C. App. III, § 6(a)(2000), determining the use, relevance and admissibility of certain classified information which defendant seeks to disclose at trial. Name and institution where now confined, if not on bail: N/A I, the above named appellant, hereby appeal to the United States Court of Appeals for the District of Columbia Circuit from the above-stated judgement. 11/22/06 United States of America -------------------------- ------------------------------------------ DATE APPELLANT Patrick J. Fitzgerald / Kmk CJA, NO FEE __N/A___ ------------------------------------------ PAID USDC FEE __N/A___ ATTORNEY FOR APPELLANT PAID USCA FEE __N/A___ Does Counsel wish to appear on appeal? Yes Has counsel ordered transcripts? Yes Is this appeal pursuant to the 1984 Sentencing Reform Act? No
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