No Easy Answers

Source: http://graphics8.nytimes.com/packages/pdf/national/govresponse.pdf

                                   U.S. Department of Justice

                                   United States Attorney
                                   Southern District of New York


                                   The Silvio J. Mollo Building

                                   One Saint Andrew's Plaza
                                   New York, New York 10007


                                   December 18, 2006


BY HAND DELIVERY

The Honorable Jed S. Rakoff
United States District Court
Southern District of New York
500 Pearl Street
Room 1340
New York, New York 10007

     In Re: Motion To Quash A Grand Jury Subpoena To The ACLU

Dear Judge Rakoff:

          The Government respectfully submits this letter in
connection with the above-referenced matter involving a grand
jury subpoena that was served upon ACLU counsel Joshua Dratel,
Esq., on November 20, 2006 (the "subpoena"). From the inception
of its dealings with the ACLU, as explained in more detail below,
the Government has attempted to pursue its investigation and its
request for the document at issue in as amicable, cooperative,
and unobtrusive a manner as possible. In fact, the Government
issued the subpoena based on both the investigatory needs of its
ongoing grand jury investigation and what it believed to be the
ACLU's representation, through counsel, that the ACLU was
requesting a subpoena in lieu of voluntary cooperation with the
Government concerning the return of what was, at that time, a
classified document. Consistent with this cooperative approach,
we hereby withdraw the subpoena in light of changed
circumstances, and because we believe that the grand jury can
obtain the evidence necessary to its investigation from other
independent sources.

          We do not seek to file this letter under seal pursuant
to Federal Rule of Criminal Procedure 6(e) or otherwise, because,
in view of the Court's prior ruling in this matter and the nature
of this response, we do not believe it discloses matters
occurring before the grand jury. Similarly, the Government does
not object to the Court's unsealing of the December 11, 2006
transcript and the December 12, 2006 letter briefs of the
parties.


Honorable Jed S. Rakoff
December 18, 2006
Page 2


          As the Court is aware, the United States Attorney's
Office for the Southern District of New York and a grand jury in
this District have been conducting a criminal investigation
concerning the improper dissemination of classified and sensitive
documents from a Government agency. From the outset of this
inquiry, the Government sought confirmation from the classifying
agency that the disseminated documents in fact contained
classified information. Our confirmation process for the
voluminous documents at issue in the grand jury investigation
started several weeks ago, and continues to the present. The
specific document that is the subject of the subpoena was one of
the documents undergoing classification review by the classifying
agency.

          On November 20, 2006, upon learning that the ACLU
likely had unauthorized possession of at least one of the
documents related to the investigation -- which document was
stamped "secret" and therefore on its face appeared to be
classified, and about which the classifying authority had not yet
provided updated information -- the Assistant United States
Attorney in charge of this case contacted a lawyer at the ACLU.
The AUSA explained to the lawyer, Terrence Dougherty, Esq., in
sum and substance, that the Government believed the ACLU was in
possession of classified material, identified for the ACLU lawyer
the date transmission was believed to have occurred in order to
assist the ACLU in identifying and locating the document, and
requested that the ACLU return to the Government all copies of
the document in its possession. At the time of this
conversation, the AUSA had no way to confirm whether the ACLU
indeed had the document in its possession, and, if so, whether
numerous copies of the document had been made. Both of these
considerations were relevant to the ongoing criminal grand jury
investigation. Mr. Dougherty asked the AUSA whether it was the
Government's view that the ACLU's possession of the document was
illegal; the AUSA responded that the ACLU's possession of the
document may be illegal. When Mr. Dougherty then asked for a
citation to the statute under which the AUSA believed the ACLU's
possession of the document may be illegal, he was referred to 18
U.S.C. §§ 793 and 798. Mr. Dougherty indicated that he would
look into the matter and that someone would be back in touch with
the AUSA.

          After the conversation between Mr. Dougherty and the
AUSA, the AUSA received a call from Mr. Dratel, who indicated
that he was representing the ACLU in connection with this matter.


Honorable Jed S. Rakoff
December 18, 2006
Page 3

The AUSA again explained, in sum and substance, that it was the
Government's belief that the ACLU was in possession of a
classified document, and that the Government requested the return
of the ACLU's copies of that document. In response to an inquiry
from Mr. Dratel, the AUSA informed Mr. Dratel that the ACLU was
not a target of the grand jury investigation. Mr. Dratel
responded that "this is the ACLU," and explained that because the
ACLU is essentially in the business of litigating with the
Government, it could not just comply voluntarily with the
Government's request for the document, but would need some sort
of "process" in order to do so. When the AUSA asked what kind of
process Mr. Dratel had in mind and whether a subpoena would
suffice, Mr. Dratel responded that a subpoena would be "fine" and
said that the AUSA should send him a subpoena by facsimile. At
the time of this conversation, while it appeared that the ACLU
was indeed in possession of the document at issue, whether and to
what extent the document had been copied and who may have
received copies of the document were still relevant inquiries of
the grand jury investigation. The subpoena was then served on
Mr. Dratel on behalf of the ACLU.

          A few days after the subpoena was issued, the AUSA and
Mr. Dratel spoke on the telephone. The AUSA learned for the
first time that the ACLU was contemplating challenging the
subpoena. According to Mr. Dratel, there were differing views
within the ACLU as to what it should do about the Government's
subpoena. At Mr. Dratel's request, the AUSA agreed to extend the
return date by one week so that the ACLU could continue its
consultations with him. The AUSA also asked Mr. Dratel to
contact her in advance of any filing the ACLU might make, so that
the ACLU could voice any objections it might have, and the
Government could consider them before involving the Court. As
Your Honor knows, this type of pre-filing discussion is
commonplace in this District, and elsewhere.

          On Friday, December 8, 2006, at approximately 5:30
p.m., the AUSA received a voicemail message from Mr. Dratel, in
which he informed her that the ACLU would be moving to quash the
subpoena the following Monday. After multiple attempts over the
weekend to reach Mr. Dratel by cellular telephone, the AUSA was
able to reach Mr. Dratel on Sunday. During that conversation,
the AUSA asked Mr. Dratel for the bases of the motion, explaining
that depending on the grounds, the matter might be something the
parties could negotiate without litigation, which always remained
the Government's strong preference. The AUSA also asked whether
the ACLU would be willing to postpone its motion for one day (and


Honorable Jed S. Rakoff
December 18, 2006
Page 4

offered to extend the return date of the subpoena by one day as
well), so that the parties would have an opportunity during a
business day to try to work through whatever issues the ACLU had
with respect to the document. Mr. Dratel provided a brief
explanation of the bases of the motion, and declined the
invitation to resolve the matter without a motion to quash.
After making inquiry of his client, Mr. Dratel also declined to
wait one additional day to file the papers so that the parties
could attempt to negotiate a solution. At 9:01 a.m. on Monday
morning, the ACLU filed its motion to quash and immediately
sought to file its papers publicly.

          As indicated above, throughout this investigation, the
Government has been in contact with the classifying agency to
determine the continued viability of the classification of the
document at issue in the subpoena, as well as other documents.
On Friday, December 15, the classifying agency determined that
the document sought by the subpoena was properly declassified.
The Government received confirmation of that declassification on
Friday afternoon.

          In sum, the Government issued the subpoena based on the
needs of its ongoing grand jury investigation and what it
believed to be the ACLU's request for a subpoena in lieu of
voluntarily returning the then-classified document. The document
is now declassified and there exist alternate sources for the
evidence necessary to the grand jury investigation. Accordingly,
the Government withdraws the subpoena at issue in this matter.
For the reasons set forth above, the Government respectfully
requests that the Court deny the ACLU's motion to quash as moot,


Honorable Jed S. Rakoff
December 18, 2006
Page 5

or alternatively order that it be withdrawn. In addition, as
noted above, we request that this letter be filed as part of the
unsealed Court record in this matter.


                                     Respectfully submitted,

                                     MICHAEL J. GARCIA
                                     United States Attorney


                               By:   ______________________________
                                     Jennifer G. Rodgers
                                     Assistant U.S. Attorney
                                     (212) 637-2513

cc:   Joshua Dratel, Esq.

SO ORDERED:



____________________________
The Honorable Jed S. Rakoff
United States District Judge
Part I

posted by cboldt  # 12/19/2006 07:08:00 AM