No Easy Answers


Tuesday, July 22, 2008

Government Declaration re: Bill Gertz's Reporter Privilege [Doc 757-2]

In the "Gertz must testify as to who his government sources were" case ...

The Bratt Declaration, which the government fought to maintain under seal.

See "Justice Dept. Balks in Case of Reporter" by Josh Gerstein of the New York Sun.

Obviously, an OCR Job.



 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 1 of 6


_.. . FILEO - SOUTHERN olvl lo_
. . CLERK, U.S. OISTAICT C URl
l 7AY I BRATT
seeclal Attorney to the Attorney General . .Rp | |_8
2 I linois Bar No. 6187361
National Security Division
3 950 Pennsylvania Avenue, NW CEN RAL ST | OFCAL ORNIA
Telephone: xxxxx
4 Facslmil� xxxxx
E-mail address: xxxxx
5
Attorney f y Plaintiff
u_t_4.st es of America .__

7 _ __ UNITED STATES DISTRICT COURT ?_. .. r_ _

8 _ __�_�_ F R THE CENTRAL DISTRICT OF CALIFORNIA _ ___'_` _ g
t ___ ___�i_. _ __
9 \__ SOUTHERN DIVISION __-. ,

_.'`.'_�o U_TE____ A ES O.F AMERICA, ) SA CR No. 05-293(B)- 7 ___ _(__

11 _ - '__ _ PlaintiEf, _ (UNDER SEAL) ___-: _ _
.-' ._ ) __ '_- _ bk
12 v. EX PARTE AND rN CANE __�.! _u v
DECLARATION OF 7AY I. i _
13 CHI MAK, et al., ) BRATT IN SUPPORT OF
. ) MOTION TO CONTINUE
14 DeEendants. ) HEARING DATE AND TO SET
NEW BRIEFING SCHEDULE
15

16 Pursuant to 28 u.s.c. Q 1746, Jay I. Bratt declares

17 as follows:

18 l. I am the ChieE of the Litigation Section of the

19 OfEice of Intelligence, NationaV Security Division,

20 United States Department of Justice ("DOI") . In

21 7anuary 2007, I was appointed a Special AttorneY to the

22 AttorneY General to investigate the possible leaks of

23 classiEied information and grand jurY inEormaCion in

24 certain publications written by wiVliam Gertz, which

25 included an article by Mr. Geytz that appeared in The

26 Wdshington Times on May 16, 2006, titled "New Charges

27 Expected in Defense Data Theft Ring." In thi.s___r_l_.___

28 reporC to the Attorney General throu�___.|________'!d._..______"v_q `

' _-. JUL. | i 2_08


 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 2 of 6

l States Attorney for the District of Columbia and the
2 Assistant Attorney General Eor the National SecuritY
3 Division. At the time of my appointment, I was an
4 Assistant United States AttorneY in the District of
5 Columbia, and I have maintained responsibility for this
6 matter in my current position. I am a member of good
7 standing oE the bar oE the State oE Illinois, and I
8 have been an attorney with DO7 since Iuly 1990.
9 2. I submit this declaration ex pdrte and in
10 cdmerd because it contains information pertaining to
11 matters that may occuy before the grand jurY in the
12 government's ongoing investigation oE the leaks,
13 because it references internal deliberations within
14 DO(7, and because it references prior communicaCions
15 with the Court that remain under seal. I do not
16 address anything related to the merits of the arguments
|7 that Mr. Gertz has advanced in support oE his motion to
18 quash the subpoena that the Court issued to him on
19 April 30, 2008.
20 3. Since assuming responsibility Eor this matter,
21 I have met with the Court on three occasions to provide
22 updates on the progress of the government's
23 investigation. These meetings occuyred on February 16,
24 2007, _uly 2q, 2007, and April 21, 2008. At each of the
2s meetings, one topic of discussion was the Court's
26 issuing a subpoena for Mr. Gertz to testifY in che
27
28 2

 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 3 of 6

l event that the government's investigation did not
2 reveal the souyce of the leak of the grand jurY
3 information in the May 16, 2006, article by Mr_ Gertz
4 and the government had not yet received authorization
s to subpoena Mr. Gertz to the grand jury to reveal his
6 source(s) for the inEormation. During the 7u1y 24,
7 2007, meeting, che Court inquired whether, if it issued
8 a subpoena for Mr. Gertz, the government would be able
. 9 to be a full participant in anY resulting proceedings.
10 I agreed to provide the Court with an answer to that
11 question.
12 4. In the fall of 2007, I began the process of
13 getting authorization for a grand jury subpoena for Mr.
14 Gert2. Pursuant to 28 C.F.R Q 50.10, any subpoena to a
ls membey of Che media requires the approval of the
l� AttorneY General. In mY submission to the component
17 within DOJ responsible for reviewing media subpoenas, I
18 requested authority both to subpoena Mr. Gertz to t.he
19 grand jury to question him about the source(s) of the
20 leaked information and to participate in any proceeding
21 that the Court initiated to subpoena Mr. Gertz. with
22 respect to the laCter reguest, the component advised me
23 that Attorney General approval was not necessary when
2q the court initiated the proceeding and sought to compel
25 a member of the media to testify. I asked for
26 clarification as to whether mY abilitY to participate
27
28 3

 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 4 of 6

l in the court proceeding would include questioning the
2 reporter at anY hearing, responding to a motion to
3 quash the subpoena, handling any resulting contempt
4 proceedings, and handling any appeaVs. I was informed
5 that I could participate to the extent described in the
6 preceding sentence. I advised the persons to whom I
7 report oE this decision. I was subsequentlY authorized
8 to inform the Court that the government could
9 participate Eully in any proceeding that resulted from
10 a subpoena thac the Court issued to Mr. Gertz. I so
11 informed the Court during our meeting on ApriV 21,
12 2008 .
13 5. On April 30, 2008, the Court issued its
14 subpoena to Mr. Gertz. On Iune 5, 2008, Mr. Gertz,
15 thyough counsel, Eiled a motion to quash the Court's
16 subpoena.
17 6. I and another DO7 attorney prepared a response
18 to Mr. Gertz's motion. In advance oE the oyiginal due
19 dace Eor the government's brief, we circulated the
20 response among our superiors and among persons within
21 DOlf who have an expertise in this area, in part to
22 ensure that the positions we were taking were
23 consistent with those advanced in oCher cases_ we were
24 advised that this matter raises a number oE issues that
25 reguire further consideration within DO7. These issues
26 incVude whether, both on legal and policY grounds, the
27
28 4

 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 5 of 6

l government can support an inves.tigaCory proceeding that
2 the Court has initiated and whether grand jury
3 subpoenas are a better alternative manner in which to
4 proceed. In addition, senior DO(T oEficials have
5 decided that, in light of the sensitivities of this
� case, the ACtorney General should approve the
7 government's continued payticipaCion in the Court-
8 initiated proceeding. The Attorney General will now
9 also consider whether the government can issue grand
10 jurY subpoenas to Mr. GerCz. In light of these
11 developments, we sought and obtained a stipulation from
12 Mr. Gertz's counsel extending che date of the
13 government's response to his motion to July 10, 2008.
14 At the time, we advised counsel for Mr. Gertz in verY
ls geneyal terms that there were some issues that the
16 government had to address, but we provided the counsel
17 with none oE Che details described above.
18 7. The government's believes that it will need 30
19 more days to resolve these issues within DOJ, which
20 would result in the government Eiling any response bY
21 August 11, 2008. If more time is needed, the
22 government will advise the CourC at least one week
23 before the new due date Eor the government's brief.
24 Because August 11 is aEter the currently scheduled
25 hearing date oE July 24, 2008, the government is also
26
27
28 5

 Case 8:05-cr-00293-CJC     Document 757-2      Filed 07/11/2008       Page 6 of 6

l seeking to continue the hearing date until September
2 23, 2008 .
3 I declare under penaltY of perjurY that the
4 foregoing is true and correct.
5
7a . att


6

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