SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2008, Issue No. 57
June 11, 2008

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REPORTER BILL GERTZ SUBPOENAED TO TESTIFY ON SOURCES

Washington Times reporter Bill Gertz was subpoenaed by a federal court last month to testify regarding his sources for a 2006 story relating to alleged Chinese espionage.

While Mr. Gertz has been a prolific reporter of classified information for two decades and has even republished classified documents in his books, his current legal entanglement arises not from national security secrecy but from grand jury secrecy.

A court found that Mr. Gertz had disclosed secret grand jury information pertaining to the trial of Chi Mak and others who were accused and later convicted of illegal exports of defense technology to China.

"During the course of proceedings in this case, Washington Times reporter Bill Gertz authored a May 16, 2006 article that revealed secret information before a grand jury," wrote Judge Cormac J. Carney in a May 1, 2008 Order.

Judge Carney noted that the Government had conducted a year-long investigation of the matter and interviewed "over 500 persons of interest" without being able to identify the source of the grand jury leak.

"Accordingly, the Court finds it necessary to subpoena Mr. Gertz to testify regarding the identity of the source that provided him with the grand jury information," the Judge wrote.

In a robustly argued response on June 5, attorneys for Mr. Gertz urged the Court to withdraw the subpoena.

Mr. Gertz's story, they said, had not actually revealed "matters occurring before the Grand Jury." Rather, he had reported on the intentions of prosecutors and relied on non-Grand Jury sources, including public statements by prosecutors. In support of their position, they cited a ruling in U.S.A. v. Rosen (the "AIPAC" case) in which the Court had declined to find a violation of grand jury secrecy under somewhat similar circumstances.

"There is simply no evidence contained in the record proving, or even tending to prove, that actual Grand Jury information was disclosed to Mr. Gertz."

Along with other factual and legal arguments, Mr. Gertz's attorneys also asserted a First Amendment privilege on his behalf. The subpoena, including the command for Mr. Gertz to testify, "is unreasonable and oppressive," they concluded.

Mr. Gertz had been ordered to appear in court in Santa Ana, California on Friday, June 13, but that date has been postponed.

The subpoena of Mr. Gertz as well as his attorneys' response were both first reported by Josh Gerstein in the New York Sun on May 30 and June 6.

Mr. Gertz is represented by attorneys Siobhan Cullen, Allen Farber, and Charles Leeper of Drinker, Biddle & Reath. That law firm is probably famous for other things, but it is best known to Secrecy News for representing the plaintiffs in the 1953 Reynolds case that established the state secrets privilege in the U.S. Supreme Court, and also for attempting to re-open the case fifty years later on grounds that a fraud had been committed upon the Court.

THE WILLARD REPORT ON UNAUTHORIZED DISCLOSURES (1982)

"Leak investigations do not focus on the receiving journalist for a variety of reasons," according to a 1982 government report on unauthorized disclosures of classified information.

One of those reasons is that "journalists are unlikely to divulge their sources in response to a subpoena for documents or testimony before a grand jury, and contempt sanctions against journalists in other types of cases have not been effective."

In other words, according to this analysis, the traditional refusal of journalists to cooperate with leak investigations protects them in the long run by discouraging government officials from undertaking further investigations.

The 1982 report, known as the "Willard Report" after its chairman, Richard K. Willard, is a minor classic of cold war secrecy. Though frequently cited in the literature, it has not been available online until now (thanks to S).

See "Report of the Interdepartmental Group on Unauthorized Disclosures of Classified Information" (the "Willard" Report), March 31, 1982:

REFORM OF THE STATE SECRETS PRIVILEGE

"In too many cases, claims of state secrets have succeeded in keeping important cases out of court entirely or preventing courts from considering evidence vital to the outcome of a case," said Rep. John Conyers, Chairman of the House Judiciary Committee, at a January 29 hearing on "Reform of the State Secrets Privilege". The record of that hearing has just been published.

In one recent case, a federal judge did what others have often failed to do in state secrets cases, which is to critically examine the basis for the assertion of the state secrets privilege.

Judge Sidney I. Schenkier of the Northern District of Illinois conducted hearings as well as in camera review of documents that the government insisted were protected by the state secrets privilege. In an April 16, 2008 ruling in the case of M. Afikur Rahman v. Michael Chertoff, he rejected some of the government's privilege claims and affirmed others.

The 1953 Reynolds case that established the Supreme Court precedent on the state secrets privilege was examined most recently by writer Barry Siegel in the new book "Claim of Privilege: A Mysterious Plane Crash, A Landmark Supreme Court Case, and the Rise of State Secrets" (Harper Collins, June 2008):

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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