UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x IN RE PETITION OF NATIONAL SECURITY ARCHIVE AMERICAN HISTORICAL ASSOCIATION AMERICAN SOCIETY OF LEGAL HISTORY ORGANIZATION OF AMERICAN HISTORIANS SOCIETY OF AMERICAN ARCHIVISTS AND SAM ROBERTS FOR ORDER DIRECTING RELEASE OF GRAND JURY MINUTES -----------------------------------------------------------------------x Misc No 11-188 PETITIONERS’ REPLY MEMORANDUM IN SUPPORT OF PETITIONERS’ MOTION TO UNSEAL GRAND JURY RECORDS Debra Vladeck 1501 New 212 L Raskin DR 5431 Waldman Elias Engelhard PC Broadway York New York 10036 403-7300 Meredith Fuchs David C Vladeck National Security Archive Kathryn A Sabbeth Gelman Library Georgetown University Law Center George Washington University Institute for Public Representation 2130 H Street NW 600 New Jersey Avenue NW Washington DC 20037 Washington DC 20001 202 662-9540 Of Counsel Attorneys for Petitioners July 14 2008 TABLE OF CONTENTS TABLE OF AUTHORITIES ii INTRODUCTION 1 I David Greenglass’s Grand Jury Testimony Should Be Unsealed II The Brothman-Moskowitz Records Historically Valuable And Essential To A Compete Understanding Of The Rosenberg Case A Disclosure of the Brothman-Moskowitz Records is Necessary to Complete the Historical Record on the Rosenberg Case 14 B The Government’s Data Prove Nothing About The BrothmanMoskowitz Material 18 C This Court Has Ordered Release of Grand Jury Records to Shed Light on Historically Important Prosecutions 20 III The Court Should Apply A Presumption That Grand Jury Records May Be Disclosed Fifty Years After The Close of Proceedings CONCLUSION 27 i TABLE OF AUTHORITIES Cases Douglas Oil Co v Petrol Stops Northwest 441 U S 211 1979 6 In re Am Historical Ass’n 49 F Supp 2d 284 S D N Y 1999 1 3 5 6 11 21 22 23 26 In re Am Historical Ass’n 62 F Supp 2d 1100 S D N Y 1999 11 In re Biaggi 4789 F 2d 489 2d Cir 1973 12 13 In re Craig 131 F 3d 99 2d Cir 1997 1 3 5 21 Executive Securities Corp v Doe 702 F 2d 406 2d Cir 1983 24 In re May 13 Media L Rep BNA 2198 S D N Y 1987 5 11 22 26 In re North 16 F 3d 1234 D C Cir 1994 6 Schrecker v Dep’t of Justice 349 F 3d 657 D C Cir 2003 25 Statutes and Rules 5 U S C § 552 25 18 U S C § 3500 23 44 U S C § 2107 14 Rule 26 2 Federal Rules of Criminal Procedure 23 Miscellaneous FBI The Rosenberg Espionage Conspiracy “Look” Magazine Sept 15 1953 17 Ronald Radosh Joyce Milton The Rosenberg File 2d ed 1997 6 9 Sam Roberts The Brother The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister Ethel Rosenberg to the Electric Chair 2001 6 U S Senate Committee on the Judiciary Hearings before the Subcomm to Investigate the Administration of the Internal Security Act and other Internal Security Laws rd th and 84 83 Cong “Interlocking Subversion in Government Departments ” Hearings 1953-56 15 ii 60 Minutes Cold War Colder Brother David Greenglass Tells CBS He Wanted to Save Himself Dec 5 2001 7 60 Minutes Traitor David Greenglass Testified Against His Own Sister July 16 2003 7 8-10 U S Attorney’s Manual Procurement Property Management § 3-13-301 13 14 Sidney Zion The Autobiography of Roy Cohn 1988 15 22 iii UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------- x IN RE PETITION OF NATIONAL SECURITY ARCHIVE AMERICAN HISTORICAL ASSOCIATION AMERICAN SOCIETY OF LEGAL HISTORY ORGANIZATION OF AMERICAN HISTORIANS SOCIETY OF AMERICAN ARCHIVISTS AND SAM ROBERTS FOR ORDER DIRECTING RELEASE OF GRAND JURY MINUTES -----------------------------------------------------------------------x Misc No 11-188 PETITIONERS’ REPLY MEMORANDUM IN SUPPORT OF PETITIONERS’ MOTION TO UNSEAL GRAND JURY RECORDS The government’s memorandum in partial opposition to petitioners’ motion to unseal the Rosenberg grand jury records takes for the most part a reasonable position on access to historically important grand jury records In contrast to its position in prior cases including the Hiss grand jury case In re American Historical Association 49 F Supp 2d 284 S D N Y 1999 the government here acknowledges that significant historical importance constitutes a “special circumstance” that may justify the disclosure of grand jury material and that the Rosenberg prosecution is a case of significant historical importance Based on that understanding the government agrees that the testimony of thirty-five of the forty-five Rosenberg grand jury witnesses should be made public Although the government’s “position is not dispositive ” In re Craig 131 F 3d 99 106 2d Cir 1997 it “should be paid considerable heed ” Id Based on the undisputed historical importance of these records and the lack of objection to disclosure petitioners respectfully urge the Court immediately to enter an order unsealing the testimony of those thirty-five witnesses Although there is much on which petitioners and the government agree there remain three points of disagreement that are the focus of this reply memorandum First David Greenglass’s grand jury testimony should be unsealed The government argues that the Court should not unseal grand jury testimony of witnesses who have lodged objections to disclosure Contrary to the government’s suggestion there is no categorical rule giving grand jury witnesses veto power over the disclosure of their testimony As demonstrated below Greenglass’s testimony should be made public because he has waived any privacy interest he may have had in keeping his testimony confidential Greenglass has repeatedly discussed the case with historians and journalists and he admits he falsely testified that Ethel Rosenberg typed up his notes on the atomic bomb — the most damning testimony against Ethel — because he was pressured to do so by prosecutors Having raised the specter of his own perjury and possible prosecutorial misconduct Greenglass’s effort to keep his testimony a secret is nothing short of audacious Second the Court should unseal the grand jury records relating to the BrothmanMoskowitz prosecution The declarations of the numerous expert Cold War historians establish that the Brothman-Moskowitz prosecution — one of the early Cold War Soviet espionage trials — although important in its own right is especially significant to understanding the Rosenberg-Sobell case because of the interlocking nature of the two prosecutions This is not just petitioners’ view it has been the government’s as well The government treated these cases as interconnected because both cases a involved the same prosecutors government investigators and trial judge b focused on allegations of industrial espionage by Soviet spy-rings connected by Jacob Golos who 2 managed both rings for a time and by Harry Gold and Elizabeth Bentley c were the product of the same FBI investigation d were based on grand jury testimony heard at the same time and e turned on key testimony from the two same witnesses Elizabeth Bentley the “red queen spy” whose “this is Julius” testimony was the capstone of government’s case in Rosenberg and Harry Gold the courier who served as go-between for the Soviets and David Greenglass Abraham Brothman and Klaus Fuchs and then turned FBI informer Gold’s testimony was pivotal in both prosecutions The government’s arguments against disclosure are insubstantial For one thing the government’s argument that the Brothman-Moskowitz case is not of exceptional importance conflicts with the uniform opinion of petitioners’ expert historians Tellingly the government’s view is not supported by a single historian or Cold War expert Rather the government relies solely on research of computer databases which go back only to the mid-1960s As petitioners’ experts explain this “research” proves nothing The government also suggests that it would be improper for the Court to release the Brothman-Moskowitz records to shed light on the Rosenberg case But this Court Leisure J did just that in Hiss ordering the release of grand jury records compiled to indict Harry Dexter White because those records would shed light on the Hiss prosecution In re Am Historical Ass’n 49 F Supp 2d at 290-91 Third the Court should reject the government’s argument that the grand jury testimony of seven witnesses should remain sealed because the government cannot locate them or establish that they have died or that they would be more than one hundred years old As a legal matter the case law does not adopt a 100-year bright line test and this Court should reject the government’s invitation to do so As a factual matter the 3 difficulty with the government’s approach is that it fails to take into account the high likelihood that if the government cannot find a witness who testified in a grand jury proceeding nearly sixty years ago that witness has passed away Indeed at least two of the witnesses placed in the “status unknown” category by the government Perry Alexander Seay and William Perl are in fact dead and a third Michael Sidorovich likely is dead The point is not that the government’s efforts were lacking to the contrary petitioners recognize the substantial resources the government brought to bear in trying to determine the status of the witnesses But if the government with all its resources cannot find a witness in a proceeding that occurred fifty-eight years ago it is fair to assume absent evidence to the contrary that the witness is no longer living I David Greenglass’s Grand Jury Testimony Should Be Unsealed The government argues that the grand jury testimony of the three witnesses who object to disclosure should remain sealed presumably until their deaths The three witnesses are David Greenglass William Danziger and Max Elitcher Petitioners recognize that at this point the privacy interests of Elitcher and Danziger may justify keeping their testimony under seal until their deaths 1 1 David Greenglass however has Petitioners do not contest the government’s argument that the grand jury testimony of Max Elitcher should remain sealed at this time Although petitioners argued that Elitcher’s grand jury testimony was provided to defense lawyers during trial — a point the government acknowledges — petitioners have been unable to locate copies of that testimony or references to it in other historical sources Given the limited nature of this disclosure the limited use of Elitcher’s grand jury testimony at trial Elitcher’s unwillingness to describe the content of that testimony to historians or journalists and the overall circumstances of this case petitioners withdraw their claim to his testimony at this point Danziger is a closer case FBI records summarize his grand jury testimony in some detail especially the role that he played in helping the FBI track down Morton Sobell in Mexico Nonetheless like Elitcher Danziger has done nothing since his trial testimony to reveal his grand jury testimony or his role in the prosecution For these reasons petitioners withdraw their claim to his testimony as well at this point However as petitioners suggest in Point III infra the Court should enter an order requiring the disclosure of the grand jury testimony of Elitcher and Danziger — and those witnesses who cannot be located at this time — once they pass away 4 forfeited any expectation of privacy in his grand jury testimony and there is no sound reason why it should not be unsealed forthwith Indeed given his confession of perjury and his accusations of prosecutorial misconduct the case for unsealing his grand jury testimony is overwhelming The government’s claim that grand jury witnesses have an entitlement to privacy is overstated See Gov’t Mem at 18-21 Grand jury witnesses have no right to veto the release of their testimony Indeed courts have rejected the categorical approach the government urges because there are at least three reasons which may justify the release of grand jury testimony notwithstanding the objections of the witness To begin with where there already has been disclosure of the witness’ testimony “many of the reasons for secrecy” have been “undercut ” In re Craig 131 F 3d 99 107 2d Cir 1997 see In re Petition of May 13 Media L Rep BNA 2198 S D N Y 1987 ordering release of the William Walker Remington grand jury records in part because of partial disclosures In re North 16 F 3d 1234 1244-45 D C Cir 1994 upholding release of grand jury information regarding accusations against persons not indicted or convicted because information had been leaked to the press and widely publicized Next where testimony may shed light on prosecutorial misconduct the public’s “strong interest in the administration of justice” may trump objections to disclosure See In re Am Historical Ass’n 49 F Supp 2d at 296-97 ordering the disclosure of Hiss grand jury records in part because the grand jury foreman collaborated with Elizabeth Bentley in her efforts to publish her memoirs In re Petition of May slip op at 4 ordering release of the Remington grand jury records because of the public’s need for “complete and accurate historical evidence” relating to possible grand jury abuses 5 Finally where the witness was in fact prosecuted and convicted of the crime charged any concern about tarnishing the reputations of the innocent and unindicted vanishes Grand jury secrecy functions to “protect the reputations and well-being of innocent subjects of grand jury investigations by attempting to keep them and the public at large ignorant of the proceedings or at least by confining the extent of public disclosure ” Douglas Oil Co v Petrol Stops Northwest 441 U S 211 218-19 1979 This Court in In re American Historical Ass’n 62 F Supp 2d 1100 1102 S D N Y 1999 echoed that sentiment noting that the “cornerstone of the grand jury secrecy rule is the protection of the reputations and well-being of individuals who are subjects of grand jury proceedings but who are never indicted ” These interests are not served by protecting the grand jury testimony of someone who not only confessed to his crime but also admits that he perjured himself Each of these factors counsels in favor of the release of David Greenglass’s grand jury records First there has been widespread disclosure by Greenglass himself of his testimony relating to the Rosenbergs Greenglass has told his side of the story to historians including Ronald Radosh co-author of The Rosenberg File and Sam Roberts author of The Brother The Untold Story of Atomic Spy David Greenglass and How He Sent His Sister Ethel Rosenberg to the Electric Chair Greenglass also chose to discuss the case in detail with the media including extensive taped interviews with 60 Minutes which formed the centerpiece of two feature stories on Greenglass’s role in the Rosenberg prosecution 2 2 Cold War Colder Brother David Greenglass Tells CBS He Wanted To Save Himself Dec 5 2001 hereinafter “60 Minutes Cold War” available at http www cbsnews com stories 2001 12 05 60II main320135 shtml source search_story The Traitor David Greenglass Testified Against His Own Sister July 16 2003 hereinafter “60 6 Greenglass did not put his grand jury testimony off-limits in any of these interviews As Sam Roberts put it in his Supplemental Declaration Greenglass agreed to meet with him subject to only two conditions “he wanted to be paid ” and “he did not want his current identity to be revealed ” Supplemental Declaration of Sam Roberts at ¶ 4 hereinafter Roberts Supp Decl Other than those conditions “ d uring 50 hours or so of otherwise no-holds barred interviews Greenglass never placed any additional restrictions on our conversations concerning his grand jury testimony his interviews with federal agents or prosecutors or anything else The fact that he agreed to speak for compensation suggests that no other inhibition was compelling enough to dissuade him from being interviewed by me fully and extensively ” Id at ¶ 5 Professor Ronald Radosh recounts a similarly unimpeded interview with Greenglass although he did not have to pay him but instead just bought dinner for David and Ruth Greenglass and their lawyer According to Radosh “The agreed upon terms of the interview was that nothing regarding the case was off limits We were particularly interested in the obvious discrepancies between what he told the FBI as revealed in the Bureau’s files on the case and his testimony at the trial ” Radosh Supp Decl ¶ 2 David Greenglass’s paid interviews with 60 Minutes also were conducted without limitations other than Greenglass’s demand that 60 Minutes “disguise his face and voice ” See Roberts Supp 3 Decl ¶ 5 60 Minutes The Traitor Minutes Traitor” available at http www cbsnews com stories 2003 07 14 60II main563126 shtml source search_story 3 Greenglass’s willingness to tell all comers his story — including about his appearance before the grand jury — make the public disclosure and waiver arguments far more compelling here than in cases like North 16 F 3d 1234 where the grand jury information was leaked to the press and involved individuals who did nothing to waive their privacy interest in grand jury secrecy 7 In the face of these multiple unrestricted and marathon interviews with historians and journalists Greenglass’s plea for privacy comes as too little too late He has waived whatever privacy interests he once may have had Professor Radosh makes the point well “ H is claim of privacy makes no sense Greenglass has already by his own words said things that portray him in an unfavorable way and has spoken completely about every aspect of his testimony and about the case Therefore as a historian and writer about the case I would argue that release of his testimony would provide the final remaining evidence from Greenglass about his role and activities as well as that of Juilius and Ethel Rosenberg For the sake of historical truth and accuracy the public deserves that the transcript be released ” Radosh Supp Decl ¶ 5 Second Greenglass’s grand jury testimony will shed light on both alleged prosecutorial misconduct and Greenglass’s own perjury Among other things Greenglass acknowledges that he confessed and cooperated with the FBI to ensure that his wife Ruth Greenglass who passed atomic secrets from Greenglass to Harry Gold and may have typed David Greenglass’s notes about the atomic bomb was not indicted for her role in the conspiracy Greenglass told Sam Roberts that he “cooperated with the government from the very beginning for two reasons and only two to spare his wife Ruth prosecution and to win leniency for himself ” Roberts Supp Decl ¶ 7 Greenglass repeated the point to 60 Minutes “That is what I told the FBI I said that ‘if you indict my wife you can forget it I’ll never say a word about anybody ’” 60 Minutes The Traitor At trial Greenglass delivered the most damning evidence presented against Ethel Rosenberg Greenglass testified that Ethel — Greenglass’s sister — typed his notes on 8 the design of atomic bomb But Greenglass did not tell this to the FBI when he was questioned FBI interview notes show that Greenglass was repeatedly interrogated about Ethel’s role but — until the eve of trial — always denied she was present when he and Julius Rosenberg discussed Greenglass’s espionage activity Prosecutor Myles Lane asked Greenglass point-blank “Was Ethel present on any of these occasions when he gave Julius information ” Greenglass replied “Never ” Lane followed up by asking “Did Ethel ever talk to you about it ” Greenglass responded “Never spoke to me and that’s a fact ” Radosh and Milton The Rosenberg File 164-65 2d ed Yale Univ Press 1997 recounting this exchange Ruth Greenglass too had been repeatedly interviewed by the FBI but never mentioned any involvement of Ethel Id With no evidence directly linking Ethel to the conspiracy prosecutors were worried that they could not make out a case against her Then during a pre-trial preparation session with prosecutors less than two weeks before trial Ruth Greenglass belatedly “remembered” that Ethel had typed Greenglass’s notes about the atomic bomb Id see Roberts Supp Decl ¶ 7 Sam Roberts explains Greenglass’s about-face this way “Confronted with his wife’s account and fully cognizant of the government’s tenuous bargain with him and his wife David corroborated it ‘My wife put her in ’ he told me ‘So what am I gonna do call my wife a liar ’” Id ¶ 8 The prosecution would not have introduced this testimony without David Greenglass’s corroboration David testified that Ethel did his typing and Ruth followed on the stand as a corroborating witness Id ¶ 8 Their testimony sent Ethel Rosenberg to the electric chair Id ¶ 9 Greenglass has since told Sam Roberts 60 Minutes and others that “he had lied in his testimony that he had no recollection — then or now — as to whether Ethel typed his 9 notes or not ” Roberts Initial Decl ¶ 8 60 Minutes The Traitor Indeed Greenglass told Roberts “I frankly think that my wife did the typing but I don’t remember ” Id Greenglass claims that he was pressured into placing the blame on Ethel by prosecutor Roy Cohn Greenglass said “he had no recollection then or since that Ethel typed those notes but was pointedly reminded by prosecutors — Assistant United States Attorney Roy Cohn in particular — that the government could withdraw at any time its agreement not to indict Ruth and could still recommend a harsher sentence for him ” Roberts Supp Decl ¶ 8 Greenglass’s account to 60 Minutes also accuses the prosecution of forcing him to lie on the stand When asked why he lied Greenglass told 60 Minutes “Roy Cohn an assistant prosecutor in the Rosenberg case made him do it ” The Traitor Greenglass’s testimony was crucial in securing the government’s conviction of Ethel Rosenberg As Sam Roberts point out Greenglass’s “testimony made the government’s case against Ethel was cited by the chief prosecutor and judge in justifying the death penalty against Ethel and sealed the bargain not to prosecute Ruth and to grant David a lesser sentence than other defendants ” Roberts Supp Decl ¶ 9 The allegations of prosecutorial misconduct in the Rosenberg prosecution amply justify unsealing Greenglass’s grand jury testimony Greenglass has alleged publicly and repeatedly that he was pressured to lie by prosecutors Greenglass’s claim of prosecutorial misconduct moreover is backed up by the FBI’s extensive interviews with both David and Ruth Greenglass which demonstrate an about-face on Ethel’s role in the conspiracy so abrupt troubling and beneficial to the prosecution that scholars uniformly worry that Ethel was convicted on the basis of testimony prosecutors knew to be at best unreliable and at worst rank perjury 10 At least twice before grand jury records have been released at least in part to uncover alleged prosecutorial misconduct less weighty than that at issue here In the Hiss case this Court found that possible abuses before the John Doe II grand jury justified release of much of the testimony There the grand jury foreman John Brunini had collaborated with Elizabeth Bentley a key witness to publish her memoir In re Am Historical Ass’n 49 F 2d at 296-97 In the Remington grand jury case as well this Court Knapp J found that allegations of abuse of witnesses — including of Ann Remington the wife of William Remington who later was indicted and tried for perjury — justified release of the grand jury transcripts In re Petition of May 13 Media L Rep BNA 2198 S D N Y 1987 As noted the allegations of prosecutorial conduct are far more serious here For this reason as well the Court should order David Greenglass’s grand jury testimony released Third having raised the specter of his own perjury and possible prosecutorial misconduct the effort by Greenglass to keep his grand jury testimony a secret is nothing short of audacious As noted above the “cornerstone of the grand jury secrecy rule is the protection of the reputations and well-being of individuals who are subjects of grand jury proceedings but who are never indicted ” In re Am Historical Ass’n 62 F Supp 2d 1100 1102 S D N Y 1999 Having cast himself in the role of perjurer there is nothing we could learn from the grand jury testimony that would do damage to Greenglass’s reputation that he has not already inflicted on himself Nor does the law require the continued sealing of his testimony Greenglass waived whatever reasonable expectation of privacy he might otherwise have had by speaking freely with historians and journalists 11 by admitting that he lied under oath and by pointing an accusing finger at prosecutors who he claims pressured him to lie In addition to the authorities cited above Greenglass’s plea for secrecy runs counter to the Second Circuit’s ruling in In re Biaggi 478 F 2d 489 2d Cir 1973 That action was the centerpiece of then-Congressman Mario Biaggi’s effort to manipulate the grand jury process to gain political advantage After Biaggi was called before a federal grand jury investigating his finances and his role in immigration matters the New York Times reported that according to “an authoritative source ” Biaggi had repeatedly invoked the Fifth Amendment Id at 490-91 Biaggi then moved the district court to appoint three judges to determine whether he had in fact invoked the Fifth Amendment to avoid answering questions about his finances The U S Attorney moved for an order disclosing all of Biaggi’s testimony redacted only to protect the names of other persons The district court granted the U S Attorney’s motion Biaggi then moved to have his testimony released without redactions but the court denied his motion The Second Circuit Friendly J affirmed Having sought the disclosure of his own testimony the Court reasoned Biaggi waived the protection ordinarily accorded to grand jury records Id at 493 In a supplemental opinion the Court went on to point out that Biaggi’s initial motion for a three-judge review of his grand jury testimony “was framed wittingly or not in such a manner as to create a false impression in light of the publicity that had given rise to it ” Id at 494 Once disclosed the minutes demonstrated that Biaggi had in fact refused to answer seventeen questions The Court was unwilling to be party to Biaggi’s gamesmanship and accordingly affirmed the disclosure of grand jury records 12 The same concern is present here Greenglass cannot plausibly claim that he retains any privacy interest in his grand jury testimony Greenglass has told his story repeatedly to anyone who would pay him and even to some like Ronald Radosh who simply bought him dinner Acceding to Greenglass’s request to keep his grand jury testimony sealed would serve none of the purposes of grand jury secrecy outlined in Douglas Oil or In re Craig but would undermine the strong public interest in getting to the bottom of his claims that he lied under oath at trial resulting in the execution of his sister and that he did so because he was pressured by the prosecution II The Brothman-Moskowitz Records Are Historically Valuable And Essential To A Complete Understanding Of The Rosenberg Case The government contends that the Brothman-Moskowitz prosecution was not sufficiently important as an historical matter to trigger the special circumstances exception It therefore opposes the release of any of the grand jury testimony even to shed light on the Rosenberg prosecution Gov’t Mem at 30-33 The government even disputes that the Brothman-Moskowitz trial served as a “dress rehearsal” for the Rosenberg case Id at 32 n 17 What is telling about the government’s argument is the government’s inability to find a single reputable historian willing to espouse this position It is not as if the government lacks access to Cold War historians The Rosenberg and Brothman-Moskowitz records are in the possession of the National Archives and Records Administration NARA which is staffed by historians and archivists and headed by eminent Cold War historian Allen Weinstein Why then has the government relied on rhetoric rather than expert historical evidence The answer is this Regardless of whether the Court agrees with petitioners’ experts that the Brothman-Moskowitz prosecution is sufficiently important in its own 13 4 right to justify release of the records there is a consensus among historians that because of the interlocking nature of the two prosecutions examination of the BrothmanMoskowitz grand jury material is critical to an understanding of the Rosenberg case This consensus is not based on “petitioners’ own conjecture ” as the government argues but hard historical facts Petitioners show below that there is a clear linkage between the two prosecutions and that the Brothman-Moskowitz grand jury records are certain to shed light on the Rosenberg case Petitioners then explain why the government’s historical argument proves nothing Finally petitioners demonstrate that the courts have approved disclosure of grand jury records to shed light on historically important prosecutions A Disclosure of the Brothman-Moskowitz Records is Necessary to Complete the Historical Record on the Rosenberg Case As is set forth in petitioners’ initial submissions and in the supplemental declarations of noted Cold War historians Bruce Craig Sam Roberts Steve Usdin Ronald Radosh and Allen Hornblum the Brothman-Moskowitz and Rosenberg prosecutions were together the centerpiece of what the government itself understood as interlocking prosecutions of individuals who were part of a coordinated Soviet industrial espionage effort Here are just some of the indicia of the inter-connections 4 See e g Craig Supp Decl ¶ 6 pointing out that the U S Attorney’s Office and NARA have determined that the Brothman-Moskowitz case is sufficiently important as a historical matter that all records relating to the case merit preservation and have been placed in the NARA’s “permanent” collection That determination is not made lightly See 44 U S C § 2107 requiring that material added to NARA’s permanent collection “have sufficient historical or other value to warrant their continued preservation” Most grand jury records do not qualify under this test and are destroyed after all proceedings have closed Craig Supp Decl ¶ 6 see also U S Attorney’s Manual Procurement Property Management § 3-13 310 13 setting timetable for destruction of grand jury records The government nowhere explains how its position in this case can be reconciled with NARA’s determination to add the Brothman-Moskowitz records to its permanent collection 14 The word “interlocking” is not petitioners’ it is the United States Senate’s The Senate Judiciary Committee investigated what it termed “Interlocking Subversion in Government Departments” — an inquiry that focused a spotlight on the Gold-BrothmanMoskowitz-Rosenberg prosecutions and resulted in a massive thirty-part hearing record See Committee on the Judiciary Subcomm to Investigate the Administration of the Internal Security Act and other Internal Security Laws “Interlocking Subversion in th Cong Government Departments ” Hearings 83d and 84 1953-56 Professor Ronald Radosh is not the only one to observe that “the BrothmanMoskowitz trial served as a tune-up for the more important Rosenberg-Sobell trial to come ” Radosh Milton The Rosenberg File at 153 Roy Cohn one the principal prosecutors in both cases said the same thing In his autobiography Cohn says he saw “the Brothman-Moskowitz as a dry-run of the upcoming Rosenberg trial We were able to see how Gold and Bentley fared on the stand and we were able to see how we fared Saypol and I ” Sidney Zion The Autobiography of Roy Cohn 66 Lyle Stuart 1988 emphasis in original see id at 75 discussing the relevance of the cross-examination of Harry Gold in the Brothman-Moskowitz trial to the Rosenberg prosecution The Brothman-Moskowitz and Rosenberg prosecutions were products of the same FBI investigation Usdin Supp Decl ¶¶ 3-9 Craig Supp Decl ¶ ¶ 3-16 Indeed one of the ironies here is that although the government suggests that the prosecutions were compartmentalized the U S Attorney’s file-keeping practices refute that contention The government’s investigations into Harry Gold Abraham Brothman Miriam Moskowitz David and Ruth Greenglass Julius and Ethel Rosenberg and Morton Sobell were a single integrated investigation For that reason the U S Attorney’s office 15 stored all of its investigatory records in one file system — what Bruce Craig describes as a “single sequential subseries numbering system” — apparently the technical term for an integrated filing system Craig Supp Decl ¶ 9 Professor Craig points out that “it would have been impractical if not impossible for the U S Attorney’s office to compile and use the case files in any other way ” Id He cites Harry Gold as an example “Harry Gold’s testimony — and the witnesses called in the government’s investigation into Gold’s activities — relate not only to Gold’s admissions of guilt and his trial but to the alleged activities of Brothman Moskowitz the Rosenbergs Klaus Fuchs and others After all Gold served as a Soviet go-between not just with David Greenglass having visited Greenglass in New Mexico to carry back atomic secrets but also with Abraham Brothman Klaus Fuchs and others This testimony could not have been as compartmentalized as the government’s argument suggests ” Id The FBI’s files reflect the coordinated nature of its investigation For instance the FBI described the fortuity for the FBI of Harry Gold’s simultaneous participation in both the “Brothman” and “Rosenberg” spy rings in a summary of the Rosenberg case prepared for Look magazine in September 1953 See Usdin Supp Decl ¶ 8 The FBI reported that it “is interesting to note that the Soviet intelligence services in utilizing Gold to contact Greenglass made a mistake in security which ultimately led to the uncovering of the Rosenberg spy ring a network independent of the one Gold was involved in ” See FBI Memorandum The Rosenberg Espionage Conspiracy “Look” Magazine at 43 Sept 15 1953 available at http foia fbi rosen rosen1 pdf The summary notes that standard Soviet practice was to keep networks distinct with members of one network absolutely ignorant of the composition of other networks “so that in the 16 event one network is detected by counterintelligence the other will not be compromised ” By using Gold to communicate with both Brothman and Julius Rosenberg’s brother-in-law David Greenglass the KGB violated this principle “The Soviets have undoubtedly found good reason to regret this error in judgment ” the FBI summary noted since the error brought down both espionage rings Id More than anything else the facts themselves underscore the relationship between the two prosecutions As the supplemental declarations of Craig Radosh 5 Usdin Roberts and Hornblum all stress the common threads that tie the two case together are that both a involved the same prosecutors government investigators and trial judge b focused on allegations of industrial espionage by an interlocking spy ring initially connected by Jacob Golos — a key Soviet operative — and later by Harry Gold and Elizabeth Bentley c were the outgrowth of the same FBI investigation d were based on grand jury testimony heard before the same grand jury at the same time indeed Harry Gold’s testimony in his own case ends at grand jury transcript page 9085 and his testimony in the Rosenberg matter begins on the following page and e turned on key testimony from the two same witnesses Elizabeth Bentley the “red queen spy” whose “this is Julius” testimony was the theatrical capstone of government’s case in Rosenberg and Harry Gold the courier-turned-FBI-informer who served as go-between for the Soviets and David Greenglass Abraham Brothman and Klaus Fuchs Gold’s testimony was pivotal in both prosecutions 5 See Craig Supp Decl ¶¶ 3-16 Radosh Supp Decl ¶¶ 6-11 Usdin Supp Decl ¶¶ 39 Roberts Supp Decl ¶¶ 11 12 Hornblum Supp Decl ¶¶ 2-14 17 B The Government’s Data Prove Nothing About the Significance of the Brothman-Moskowitz Material In the face of all of this evidence the government provides no factual or scholarly support for its position Instead it offers an unconvincing hodge-podge of data drawn from modern source materials — mostly dating back only to the mid-1970s or later — to claim that the Brothman-Moskowitz prosecution which took place in 1950 lacks significant historical importance None of the databases the government searched includes historical material contemporaneous with the “Red Scare ” the espionage trials their aftermath or even the bulk of the historical debate over Soviet espionage in the United States Nor do these databases cover scholarly books and articles — contemporary or historic — which are the key sources on the Rosenberg case and address the Brothman-Moskowitz trial in great depth By way of illustration Radosh and Milton’s The Rosenberg File perhaps the most comprehensive and respected exposition of the Rosenberg case devotes dozens of pages to Brothman and Moskowitz See Craig Supp Dec ¶¶ 11 12 The government’s methodology in trying to ascertain the historical importance of Brothman-Moskowitz is so Procrustean that its results tell one virtually nothing about the historical significance of the case As explained in the declaration of Kristin Adair for the most part the government searched only databases containing recent news articles the New York Times database 1969 to the present goes back the furthest while the Los Angeles Times’ coverage begins in 1985 Adair Decl at ¶ 8 The results of course would have been strikingly different had the government broadened its search to reach the 1950s and 1960s Ms Adair conducted additional searches for news coverage of the Brothman-Moskowitz trial and not surprisingly there are many articles Her search of the 18 New York Times through the ProQuest Historical Newspapers database found 44 Times articles on the trial most of which were published in 1950-51 Id at ¶ 9 Using the same database her search of The Washington Post uncovered 22 articles about the case Id To compare the recent coverage of Brothman-Moskowitz to the recent coverage of defendants in other high-profile 1950s-era trials Ms Adair conducted a broad news search on William Remington who was tried and convicted of perjury in two related trials in 1950 and 1953 She found only 30 recent matches and only a few of those focused on Remington or his perjury trial Id at ¶ 10 Nonetheless in In re Petition of May this Court ordered the Remington grand jury records released To determine whether Ethel Rosenberg remains a matter of ongoing controversy Ms Adair searched Ethel’s name for just 2007 her search turned up 151 results which is consistent with the government’s findings Id at ¶ 11 But unlike the government Ms Adair did not just count stories she actually read them It turned out that “most were articles with only passing reference to Mrs Rosenberg — for example obituaries of individuals involved in espionage activities in the 1950s book reviews arts and theater items that reference the Rosenbergs and mention of Ethel’s execution in stories about other women who have been given the death penalty ” Id Thus it is hard to see what if anything the government’s statistics about the recent news coverage of the Brothman-Moskowitz case prove See also Craig Supp Dec ¶¶ 11 12 19 C This Court Has Ordered the Release of Grand Jury Records to Shed Light on Historically Important Prosecutions Petitioners submit that the Brothman-Moskowitz grand jury records are sufficiently important as a historical matter to warrant their release under the “special circumstances” test laid down in In re Craig Even if the Court disagrees the BrothmanMoskowitz grand jury records should be disclosed because of the considerable light they will shed on the Rosenberg case The government contends that this argument amounts to an effort by petitioners “to piggyback on the notoriety surrounding the Rosenberg matter to unseal records in a far less important and distinct case ” Gov’t Mem at 33 The government goes on to contend that there is “absolutely no authority for the proposition that the extraordinary ‘special circumstances’ exception extends so far as to encompass cases that are alleged to be important only insofar as they have some nexus to another case of historical interest ” Id The government is wrong on both counts Petitioners have already shown that Brothman-Moskowitz is hardly a “far less important and distant case ” But the government also misses the mark in arguing that this Court has not released grand jury records in related proceedings to shed light on historically important prosecutions Indeed the government itself cites the key case on this point In re American Historical Ass’n but then ignores the opinion’s discussion of this issue Gov’t Mem at 33 To be sure as the government notes the American Historical Association Court observes that the Harry Dexter White petition was denied because the petitioner failed to substantiate the alleged public interest in disclosure id citing 49 F Supp 2d at 284 but the government then disregards the Court’s subsequent decision to release the 20 Harry Dexter White records precisely because they would shed light on the Hiss prosecution See 49 F Supp 2d at 290-291 As the Court put it Craig’s petition sought only the testimony of White before the Doe I grand jury The instant petition seeks a much broader range of materials spanning both special grand jury proceedings In addition to the extent the petitions overlap the evidence submitted in support of disclosure and the rationale for disclosure is different in each case Craig sought disclosure of White’s testimony based on its asserted relevance to the allegations against White See Craig 131 F 3d at 101 Petitioners on contrast seek that testimony based on its alleged relevant to allegations against a different and undisputedly more important historical figure Hiss as well to a number of broader historical issues In re Am Historical Ass’n 49 F Supp 2d at 290-91 Based on those considerations and the fact that the Hiss grand jury records “would provide additional and historically important insight” about the “extent of Soviet espionage activity in the United States during and following World War II ” the Court ordered the White testimony released notwithstanding the prior ruling in In re Craig Id at 296 This case is no different Even assuming that the Brothman-Moskowitz material does not meet the significant historical interest standard in its own right a proposition petitioners’ dispute under the logic of In re American Historical Association the material should be released nonetheless because it relates to “allegations against a different and undisputedly more important historical figure the Rosenbergs as well to a 6 number of broader historical issues ” Id at 291 6 At a minimum the Court should order the release of the grand jury transcripts of Harry Gold and Elizabeth Bentley As noted above they were key witnesses in both trials and Bentley was not called before the Rosenberg grand jury although she did testify at the Rosenberg trial Moreover although the Hiss Court ordered her grand jury testimony in that case released the government could not locate it and it has not been made public Gold’s testimony is especially important since as Roy Cohn points out although he was subject to withering cross in the Brothman-Moskowitz case and had “admitted to living a life of lies ” the lawyer for the Rosenbergs did not cross examine Gold committing what Cohn claims was a “strategic disaster ” 21 III The Court Should Apply A Presumption That Grand Jury Records May Be Disclosed Fifty Years After The Close Of Proceedings The government has identified seven witnesses whose status is “unknown ” The government contends that because none of these witnesses would be over 100 years old if alive the Court should refuse to unseal their grand jury testimony at this time The government claims that this rule is required both to protect the integrity of the grand jury process and to avoid an invasion of the privacy interests of witnesses who are still living Gov’t Mem at 18-25 The government acknowledges that on proof of death or the passage of 100 years the testimony of these witnesses should be unsealed Petitioners have three responses to these contentions First the government overstates the threat disclosure of decades-old grand jury records for historical purposes would pose either to the grand jury process or as a deterrent to witness participation Second the government’s approach results in the withholding of much more information than is necessary to protect the integrity of the grand jury process and will engender repeated petitions to unseal portions of grand jury records And third the more sensible approach would be for the Court to order release of all of the grand jury records but stay that order where a witness comes forward with a privacy-based objection to the disclosure of his or her testimony — as petitioners ask the Court to do here with Max Elitcher and William Danziger First the government overstates the threat the release of historically valuable grand jury records would pose to the willingness of witnesses to testify before grand juries in the future This Court in both In re Petition of May and In re American particularly because Gold’s “I come from Julius” testimony was suspect he could well have been referring to a different Julius Julius Streicher See The Autobiography of Roy Cohn supra at 75 22 Historical Ass’n addressed identical concerns and rejected them In Petition of May the Court found that disclosure of grand jury transcripts 35 years after-the-fact would not have a deterrent effect noting that “the government did not dispute our suggestion that no witness would have been deterred from testifying had he or she been informed that grand jury records might be disclosed after the passage of 35 years ” Slip op at 3-4 n 1 Similarly the In re American Historical Ass’n Court found “negligible” the “inhibiting effect” of releasing grand jury records “for historical reasons fifty years after the proceedings had ended ” 49 F Supp 2d at 292 The Court went on to explain that there are other factors “such as leaks general press attention revelations at trial the often extensive contemporaneous attention given to the case ” more likely to influence jurors than “the possibility of disclosure decades hence based on historical interest ” Id Moreover the government treats grand jury records as if ordinarily they are locked in a vault and never aired in public But since at least 1970 that is not so Grand jury testimony is now routinely disclosed at trial so no witness has any assurance that his or her grand jury testimony will remain secret As a result of the 1970 amendments to the Jencks Act 18 U S C § 3500 and the 1977 amendments to the Federal Rules of Criminal Procedure codified in Rule 26 2 a trial witness’ grand jury testimony is now routinely disclosed to a defendant after the witness testifies either at trial or at a pretrial hearing Thus release of grand jury records has become an everyday occurrence not the rarity the government suggests As the Second Circuit observed 25 years ago Every sophisticated grand jury witness knows that if he becomes a witness at trial his grand jury testimony will most likely be revealed to the public For future witnesses trying to decide whether to testify before grand juries the marginal deterrent effect of releasing one more transcript on the facts of this case can only be trivial 23 Executive Securities Corp v Doe 702 F 2d 406 409-10 n 4 2d Cir 1983 Second the government’s approach — which requires definitive proof of a witness’ death as a precondition to disclosure — will result in the withholding of records that should be released Establishing whether a witness who testified before a grand jury fifty-eight years ago is alive or not is a formidable undertaking especially if one lacks access to social security numbers as is ordinarily the case for petitioners Even though the government had access to social security numbers and expended great effort in trying to locate these witnesses it was unable to make an accurate determination in seven cases Information that petitioners have obtained since the government’s submission shows that at least two and likely three of the witnesses whose status was “unknown” are in fact dead William Perl died in September 1976 Perry Alexander Seay died in November 1992 and it appears that Michael Sidorovich died sometime before 2005 since his wife Anne’s obituary says that she was “preceded in death by her husband Michael Sidorovich ” Adair Decl at ¶¶ 4-6 Part of the problem of course is that names often change and occasionally are misspelled For instance the government asserts that Vivian Glassman’s status is unknown but FBI records show that her name was changed to Vivian Glassman Pataki Edith Levitov also listed as “status unknown ” was referred to in an obituary for Morton Sobell’s wife Helen as Edith Levitov Garduk living in Bethesda Maryland And the government’s difficulty in locating Michael Sidorovich might be attributable to its misspelling of his name the government lists both Michael and Anne as Sidarovich even though the FBI and others consistently spell their name with an “o” and not an “a ” 24 The point is not to suggest that the government effort here was not substantial It was But if the government with access to otherwise private personal information and with all the resources it can bring to bear cannot find witnesses in a proceeding that occurred fifty-eight years ago it is fair to assume absent evidence to the contrary that the witnesses are no longer living Certainly that appears to be the case here where petitioners have determined that three out of the seven “status unknown” witnesses have died For these reasons the Court should reject the government’s suggested presumption that unless a witness would be more than 100 year old the witness should be presumed to be still alive absent conclusive proof to the contrary The government’s suggestion is based solely on Schrecker v Dep’t of Justice 349 F 3d 657 D C Cir 2003 which concerned the processing of requests under the Freedom of Information Act FOIA 5 U S C § 552 There are a number of problems with adopting such a presumption For one thing birth dates often are not available and thus the rule quickly dissolves into guess-work For another the statistics recounted in Schrecker show that the 100-year rule far exceeds actual life-expectancy in the United States or elsewhere And for another the government’s approach will require petitioners to file petitions each time a witness dies or passes the 100-year mark engendering wasteful litigation Finally a FOIA-based rule — designed to cover a host of diverse possible situations — is not well suited to a grand jury access cases where the grand jury sits for a set term an individual’s testimony occurs on a date-certain and the individual is except in rare cases an adult Where grand jury records are concerned a more sensible rule would be measured from the date the grand jury ended or the witness testified and should be no 25 longer than fifty years That approach is more protective than the one followed by the Court in In re Petition of May slip op at 3 finding 35 years sufficient and in accord with that used In re American Historical Association 49 F Supp 2d at 292-92 finding 50 years sufficient It should be followed here Third petitioners urge the Court to order all of the grand jury testimony released With respect to Max Elitcher and William Danziger petitioners ask the Court to order their testimony released but subject to a stay until there is information satisfactory to the government such as the social security death index that demonstrates that Max Elitcher and William Danziger have passed away With respect to the seven “status unknown” witnesses petitioners assume that once the government has had an opportunity to review Ms Adair’s declaration and Exhibits it will withdraw its objection to the release of the testimony of William Perl Perry Alexander Seay and Michael Sidorovich Petitioners urge the Court to order release of the testimony of the remaining four “status unknown” witnesses Vivian Glassman Pataki Edith Levitov Garduk Sarah Powell and Frank Wilenz At this juncture the government and the petitioners have independently made concerted efforts to determine their status and have failed As Sam Roberts put it somewhat colorfully in his supplemental declaration “If the government cannot find them we’re not talking about Osama bin Laden after more than half a century they should either be presumed dead or living under other names that would not be compromised by the release of grand jury testimony ” Roberts Supp Dec ¶ 2 If the Court rejects this argument petitioners urge that it order their testimony released as well but subject to a stay until there is information confirming their deaths This approach would avoid the necessity of follow-up petitions to unseal 26 CONCLUSION For the reasons stated above in petitioners’ opening memorandum and in the declarations that have been filed in support of this motion petitioners’ motion should be granted in all respects Dated New York New York July 14 2008 Vladeck By Debra 1501 New 212 Waldman Elias Engelhard PC _________________________ L Raskin DR 5431 Broadway York New York 10036 403-7300 Meredith Fuchs David C Vladeck National Security Archive Kathryn A Sabbeth Gelman Library Georgetown University Law Center George Washington University Institute for Public Representation 2130 H Street NW 600 New Jersey Avenue NW Washington DC 20037 Washington DC 20001 202 662-9540 Of Counsel Attorneys for Petitioners 27