William J. Schwartz, Esq.Is the CIA Sweating Bullets Over A Money Laundering Idiot?Thu Dec 9, 2004 16:07188.8.131.52 Is the CIA Sweating Bullets Over A Money Laundering Idiot?Posted on Friday, December 03 @ 21:59:03 ESTTopic: CIA
http://www.politrix.org/modules.php?name=News&file=article&sid=1597 Is the CIA getting nervous over James Giffen. Certainly seems to be the case. The agency has been banking on the courts to keep Giffen's defensive tactics sealed. Why oh why would they be concerned with this you ask? Ever hear of a CIA defense? No? It's where the defendant acknowledges having worked for the Central Intelligence Agency and the shit starts rolling downhill. Yea! That defense. Many have tried and just about all have failed. Funny how these "oil related" idiots are always in the middle of something shady isn't it.ORIGINAL SOURCE OF COURT TRANSCRIPT[7 pages.]UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - XUNITED STATES OF AMERICA, : S2 03 CR. 404 (WHP) -against- :JAMES H. GIFFEN, : MEMORANDUM AND ORDER Defendant. :- - - - - - - - - - - - - - - XWILLIAM H. PAULEY III, District Judge: Presently before the Court is Defendant James H.Giffen's application to unseal various letter memoranda andtranscripts of proceedings in this action. This applicationstems from the Government's pursuit of contradictory strategiesfor the filing of documents containing potentially classifiedinformation. Oblivious to the requirements of Classified InformationProcedures Act (CIPA) and Rule 12.3 of the Federal Rules ofCriminal Procedure, the Government initiated public filings withthis Court. Then, in an abrupt about-face, the Government begansubmitting every document under seal and insisted that DefendantJames Giffen do the same. The Government now asserts that its earlier public filings contain potentially classified informationand ought to be sealed. By letter application dated September 2, 2004,Defendant sought, inter alia, to unseal the transcript of the -1-July 29, 2004 hearing as well as various submissions by theparties concerning CIPA. The Government responded by letterdated September 8, 2004 and agreed in principle that portions ofthe July 29, 2004 hearing and earlier submissions relating toCIPA procedural matters should be unsealed. Thereafter, by letter application dated September 23,2004, the Government consented to unsealing its July 28, 2004memorandum of law regarding CIPA and discovery. That concessionwas well-advised because the Government's purportedly classifiedmemorandum simply copied a large segment of a CIPA synopsis inthe United States Attorneys' Manual, which is available on theU.S. Department of Justice's publicly accessible web page.
http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/crm02054.htm .That letter also consented to unsealing a September 7, 2004letter from defense counsel and a letter from the Governmentdated September 10, 2004 enclosing a proposed protective order.In that letter, the Government requested that the Court postponeruling on Defendant's unsealing motion until the Governmentcompleted its review of other documents under seal. By letter dated September 27, 2004, the Governmentannounced its position with regard to the unsealing of portionsof the July 29, 2004 transcript and several letters filed underseal between August 3, 2004 and September 8, 2004. Those lettersinclude the Defendant's August 3, 2004 letter, the Government's -2-August 4, 2004 letter, the Defendant's August 16, and September2, 2004 letters and the Government's September 8, 2004 letter.In the portions relevant to Defendant's application, each ofthese letters discuss a potential public authority defense. TheGovernment does not contend that these letters discloseclassified information. Instead, it argues that they providenotice of Defendant's intent to assert a public authority defensenaming federal intelligence agencies. Rule 12.3(a) (1) of the Federal Rules of CriminalProcedure requires that if a defendant gives notice of a publicauthority defense which "identifies a federal intelligence agencyas the source of the public authority," then the notice "filedwith the clerk must be under seal." That notice must contain thefollowing information: "(A) the law enforcement agency or federalintelligence agency involved; (B) the agency member on whosebehalf the defendant claims to have acted; and (C) the timeduring which the defendant claims to have acted with publicauthority. " Fed. R. Crim. P. 12.3(a)(2). Without citation to any authority, the Governmentargues that "ancillary proceedings related to a possible publicauthority defense which reveal directly or indirectly that adefendant is contemplating a public authority defense based onauthority allegedly provided by a federal intelligence agencyalso ought to be sealed." The Government's position is -3-untenable. Rule 12.3 does not require that all documentsrelating to a public authority defense be filed under seal.Rather, it requires only that notice of a public authoritydefense containing the statutorily-required items of informationbe filed under seal. There is no dispute that neither the July 29, 2004transcript nor any of the letters filed between August 3, 2004and September 8, 2004 constitute actual notice of a publicauthority defense. However, were this Court to allow publicfiling of documents containing information that must be includedin a public authority defense notice, the national securityconcerns undergirding Rule 12.3 would be compromised. Therefore,this Court will continue to seal those portions that give noticeof a potential public authority defense identifying a federalintelligence agency. Such sealing will extend only to portionsof documents that disclose the information listed in Rule12.3(a)(2). Further, this Court declines to seal references toRobert Baer's book, titled See No Evil: The True Story of aGround Soldier in the CIA's War on Terrorism (Crown Publishers2002), because it was vetted and approved by a federalintelligence agency prior to its publication. With theseprinciples in mind, this Court is issuing an Order under sealidentifying the specific portions of the letters and transcriptthat shall remain sealed. -4-In its September 27, 2004 letter, the Government alsolaunched a new application seeking to seal previously publiclyfiled documents. Those documents include portions of Defendant'smemorandum in support of his pretrial motions, the Government'sDefendant's reply memorandum In support or his pretrial motion,the June 3, 2004 hearing transcript, and this Court's July 2,2004 Memorandum and Order concerning discovery issues. Inaddition, the Government sought to seal some public portions ofthe September 5, 2003 and the July 29, 2004 hearings conducted inopen court. In its September 27, 2004 salvo, the Governmentacknowledged the self-evident: "it is obviously impossible tocompletely repair any damage caused by these public filings."(Letter, dated September 27, 2004, at 3.) The notion that this Court should seal a portion of itsMemorandum and Order four months after it was publicly filed,made available on Westlaw, published in the New York Law Journaland discussed in the national media is absurd. Such a sealingOrder would be an exercise in futility. If docketed, itspractical effect would be to make this Court's opinion availableeverywhere, except in the Clerk's office for the SouthernDistrict of New York. Accordingly, the Government's applicationto seal portions of this Court's July 2, 2004 Memorandum andOrder is denied. For the same reason, this Court declines to -5-seal documents that the Government filed in the public domain orcomments made in open court. CONCLUSION For the foregoing reasons, this Court grants in partDefendant's application to unseal materials filed under seal.This Court grants the Government's request to seal portions ofthe July 29, 2004 transcript, Defendant's August 3, August 16,and September 2, 2004 letters, and the Government's September 8,2004 letter and denies the Government's application to sealportions of documents previously docketed in the public file.The Government is directed to provide this Court and Defendantwith redacted copies of the transcript and letters within five(5) business days for public filing. The parties are directed to provide this Court withtheir positions regarding the unsealing of the November 3 andNovember 23, 2004 transcripts, the Government's September 27 andNovember 16, 2004 letters, and the Defendant's October 4 andNovember 19, 2004 letters by December 15, 2004. Finally, the Clerk of the Court is directed to unsealthe following documents: 1. Docket entry # 50 the Government's letter dated August 4, 2004; 2. Docket entry # 52 the Government's Memorandum regarding Classified Information Procedures Act (CIPA), dated -6- July 28, 2004; and 3. Docket entry # 55 the Protective Order, dated September 10, 2004.Dated: December 2, 2004 New York, New York SO ORDERED: [Signed] WILLIAM H. PAULEY III U.S.D.J.Copies faxed to:AUSA Peter NeimanUnited States Attorney's OfficeOne St. Andrew's PlazaNew York, New York 10007Philip Urofsky, Esq.Special Counsel for International LitigationFraud SectionU.S. Department of Justice10th & Constitution Ave., N.W.Washington, D.C. 20530William J. Schwartz, Esq.Steven M. Cohen, Esq.Kronish, Lieb, Weiner & Hellman LLP1114 Avenue of the AmericasNew York, New York 10036-7798Counsel for Defendant
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