In re National Security Archive

104 F. Supp. 3d 625, 2015 U.S. Dist. LEXIS 65347
CourtDistrict Court, S.D. New York
DecidedMay 19, 2015
DocketNo. 08 Civ. 6599(AKH)
StatusPublished
Cited by3 cases

This text of 104 F. Supp. 3d 625 (In re National Security Archive) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re National Security Archive, 104 F. Supp. 3d 625, 2015 U.S. Dist. LEXIS 65347 (S.D.N.Y. 2015).

Opinion

OPINION AND ORDER UNSEALING GRAND JURY TESTIMONY OF DAVID GREENGLASS AND MAX ELICHTER

ALVIN K. HELLERSTEIN, District Judge.

Petitioners — a non-profit institution, four national associations of historians and archivists, and a journalist — seek the release of grand jury records related to the prosecutions in this Court of Ethel and Julius Rosenberg. For the following reasons, the petition is granted.-.

BACKGROUND

In 1950, a federal grand jury impaneled by this Court indicted Julius and Ethel Rosenberg of conspiracy to commit espionage by passing information about the atomic bomb to agents of the Soviet Union. The following year, they were tided and convicted,- partly based on the testimony of Ethel Rosenberg’s brother and alleged co-conspirator, David Greenglass. The Rosenbergs were sentenced to death and, on June 19, 1953, they were executed. Subsequently, in interviews with journalist Sam Roberts of the New York Times, Greenglass claimed to have lied at trial about his sister’s involvement in'order to protect his wife, Ruth Greenglass. According to Greenglass, it was likely Ruth, not Ethel, who typed up his notes, but government attorneys were threatening to prosecute Ruth unless David testified against Ethel. See, e.g., Sam Roberts, The Brother: The Untold Story of Atomic Spy David Greenglass and How He Sent His [627]*627Sister, Ethel Rosenberg, to the Electric Chair (2002).

In January 2008, Petitioners petitioned this Court to unseal grand jury records relating to the Rosenbergs’ indictments.1 After briefing and oral argument, I granted Petitioners’ request with respect to the grand jury transcripts of all witnesses who were either deceased, had consented to the release of the transcripts, or were presumed to be indifferent or incapacitated based on their failure to object. See Order Regulating Proceedings, In re Nat’l Sec. Archive, Misc. No. 11-188 (Part I) (S.D.N.Y. Jul. 28, 2008); Summary Order, In re Nat’l Sec. Archive, No. 08-cv-6599, 2008 WL 8985358 (S.D.N.Y. Aug. 26, 2008). That release covered 43 of the 46 grand jury witnesses. The three remaining witnesses — Max Elichter, William Danziger, and David Greenglass — objected, and their transcripts were not released. Petitioners withdrew their motion as to Elichter and Danziger, but urged that the vital, historical importance of Greenglass’s testimony warranted releasing the transcripts over his objections. I denied the motion, reasoning that “the interest of a witness before a grand jury ... in not permitting others to disclose what he said. to the grand jury is an abiding value that I must respect.” , Tr. of Jul. 22, 2008 at 33:13-15. However, I cautioned that “[wjhether that interest will survive David Greenglass. is a question I do not decide today.” Id. at 42:25-43:15.

Now, more than six years later, the issue comes before me again, as Petitioners have renewed their motion following the deaths of David Greenglass and Max Eli-chter. The renewed petition does not cover William Danziger, as Petitioners have been unable to determine whether Mr. Danziger is still alive.2 In a December 15, 2014 Order, I extended the Government’s time to respond to the renewed petition in order to allow it “to consult all potential stakeholders.” - Doc. No. 13 at 1. According to the Government, the- Elichter family has no objection, so his testimony will be unsealed posthumously like those of previous witnesses. However, the Greenglass family continues to oppose disclosure.'

LEGAL STANDARD

“It is a tradition of law that proceedings before a grand jury shall generally remain secret.” In re Biaggi, 478 F.2d 489 (2d Cir.1973). This policy is intended

(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before [the] grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; [and] (5) to protect [the] innocent.accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 2 [628]*628L.Ed.2d 1077 (1958) (quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954)). However, the tradition of secrecy is not absolute. In re Biaggi, 478 F.2d at 492. For example, Fed.R.Crim.P. 6(e)(3) allows for disclosure under certain circumstances, such as disclosure to a criminal defendant if the grand jury witness will testify against him at trial. And the Second Circuit has recognized that “there are certain ‘special circumstances’ in which release of grand jury records is appropriate even outside the boundaries of the rule.” In re Craig, 131 F.3d 99 (2d Cir.1997). One such special circumstance is significant historical interest by the public. Id, at 105. The determination of whether such an interest outweighs the countervailing interests in privacy and secrecy falls within the district court’s discretion. See id. at 104 (“We note at the outset that the discretion of a trial court in deciding whether to make public the ordinarily secret proceedings of a grand jury investigation is one of the broadest and most sensitive exercises of careful judgment that a trial judge can make.”).

DISCUSSION

The historical significance of the Rosenberg trial is undisputed. Their crime was called “The Crime of the Century.” J. Edgar Hoover, The Crime of the Century, Reader’s Digest, May 1959. In sentencing the couple to die, U.S. District Judge Irving R. Kaufman blamed their treason for the Korean War and at least 50,000 lives lost because of it. United States v. Rosenberg, 195 F.2d 583, 605 n. 29 (2d Cir.1952) (“I consider your crime worse than murder .... I believe your conduct in putting into the hands of the Russians the A-bomb years before our best scientists predicted Russia would perfect the bomb has already caused, in my opinion, the Communist aggression in Korea, with the resultant casualties exceeding 50,000 and who knows but that millions more of innocent people may pay the price of your treason.”). The Rosenbergs’ name is infamous to a generation of Americans who grew up during the Cold War fearing the nuclear threat posed by the U.S.S.R. The Rosenbergs were the only American civilians executed for espionage activities in that period. Many continue to believe that Ethel was innocent, although intercepted Russian cables that appear to confirm Julius’s espionage activities.3

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Bluebook (online)
104 F. Supp. 3d 625, 2015 U.S. Dist. LEXIS 65347, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-national-security-archive-nysd-2015.