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
March 2006 April 2006 May 2006 June 2006 July 2006 August 2006 September 2006 October 2006 November 2006 December 2006 January 2007 February 2007 March 2007 April 2007 May 2007 June 2007 July 2007 August 2007 September 2007 November 2007 December 2007 January 2008 February 2008 March 2008 April 2008 May 2008 June 2008 July 2008 August 2008 September 2008 March 2009 April 2009