In re National Security Archive
In re National Security Archive
Opinion of the Court
OPINION AND ORDER UNSEALING GRAND JURY TESTIMONY OF DAVID GREENGLASS AND MAX ELICHTER
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
In January 2008, Petitioners petitioned this Court to unseal grand jury records relating to the Rosenbergs’ indictments.
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.
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
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.
In 2008,1 found that David Greenglass’s interest in preserving the secrecy of his grand jury testimony was sufficient to prevent its unsealing during his life, despite the public interest in the case. But neither his posthumous interest nor the interest of his family can prevent unsealing. The Government claims that disclosure will rekindle antipathy toward the Greenglass family and thrust them into an unwanted spotlight. It argues that “the continued existence and vulnerability” of the principal parties involved and their immediate families is grounds to keep the records sealed. I do not agree. The family has lived under assumed names for fifty years. The family makes objections, not by appearing or intervening, but through a lawyer, allowing them to preserve their assumed identities. The Government fails to explain how publicity arising from the re
Other considerations beyond historical interest weigh in favor of disclosure as well. For example, Judge Knapp and Judge Leisure have each ordered grand jury records unsealed in other cases in part because of credible allegations of prosecutorial misconduct. See In re American Historical Ass’n, 49 F.Supp.2d 274 (S.D.N.Y. 1999); In re May, 651 F.Supp. 457 (S.D.N.Y. 1987). In this case, David Greenglass stated in interviews that prosecutors pressured him into falsifying testimony against his sister. See Roberts Decl. ¶¶ 7-8. And as the Second Circuit explained, “the extent to which the grand jury material ... has been made public is clearly relevant because even partial previous disclosure often undercuts many of the reasons for secrecy.” In re Craig, 131 F.3d at 106. Here, Greenglass himself has been a willing interviewee on the subject of his testimony for books, newspapers, and television reports over the years.
The family’s contention that disclosure should be postponed until all immediate family members are deceased is not compelling. As I explained in 2008,
like information, time is precious with respect to those who research. The researchers and writers have a limited life span themselves. There is a very great public interest. The public interest is best satisfied by the proper responsive disclosure of information.... So unless there is a good reason [cautioning against disclosure], I think I would rule to require them to be released.
Tr. of Jun. 22, 2008, at 23:5-13.
The requested records are critical pieces of an important moment in our nation’s history. The time for the public to guess what they contain should end. The transcripts of David Greenglass and Max Eli-chter shall be made available. The testimony of William Danziger remains sealed for the time being.
CONCLUSION
Petitioner’s motion to unseal the testimonies of Max Elichter and David Green-glass before the Rosenberg grand jury is granted. The Clerk shall mark the motion (Doc. No. 10) terminated.
SO ORDERED.
. Although the Government would likely have to disclose Greenglass's grand jury testimony if the trial were held today, the Rosenberg trial preceded the enactment of the Fed. R.Crim.P. 26.2 and the Jencks Act, 18 U.S.C. § 3500.
. My 2008 ruling upholding objections to disclosure by living witnesses remains in effect, at least for the time being.
. See Ronald Radosh & Joyce Milton, The Rosenberg File xv-xvi (2000).
. See, e.g., Cold War, Colder Brother, David Greenglass Tells CBS He Wanted to Save Himself (Dec. 5, 2001), available at http://www. cbsnews.com/stofies/2001/12/05/60II/main 320135 ,shtml?source=search_story.
Reference
- Full Case Name
- 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
- Cited By
- 3 cases
- Status
- Published