A federal judge in California on Monday unsealed a document revealing internal deliberations in the Justice Department over issuing a subpoena to Bill Gertz, national security reporter for The Washington Times, for him to divulge confidential sources in a story he wrote about a Chinese spy ring more than two years ago.
Mr. Gertz is scheduled to appear Thursday before U.S. District Court Judge Cormac J. Carney in Santa Ana., Calif., to address questions about the need to protect unnamed sources and the newsworthiness of his story.
The document is a declaration by Justice Department lawyer Jay I. Bratt, who was appointed to investigate “possible leaks of classified information in certain publications by William Gertz” in January 2007. It exposes a potential rift between the court and Justice Department, which apparently has backed off its support for issuing a subpoena to Mr. Gertz.
In a meeting July 24, 2007, the court - which was seeking to subpoena Mr. Gertz - asked Mr. Bratt if his agency “would be able to be a full participant in any resulting proceedings,” according to the declaration.
Mr. Bratt said he “was subsequently authorized to inform the Court that the government could participate fully in any proceeding that resulted from a subpoena that the Court issued to Mr. Gertz.
“I so informed the Court during our meeting on April 21, 2008,” he said.
The court subpoenaed Mr. Gertz on April 30, and Mr. Gertz’s attorneys - Allen Farber and Charles Leeper - filed a motion to quash the subpoena June 5.
In preparing a response to the motion, Mr. Bratt and another department lawyer “circulated the response among our superiors and among persons within DOJ who have an expertise in this area. …
“We were advised that this matter raises a number of issues that require further consideration,” Mr. Bratt said in his declaration. “These issues include whether, both on legal and policy grounds, the government can support an investigatory proceeding that the Court has initiated and whether grand jury subpoenas are a better alternative manner in which to proceed.”
What’s more, because of the case’s “sensitivities,” senior officials decided the attorney general should approve whether the government will continue its participation in the case and “whether the government can issue grand jury subpoenas to Mr. Gertz.”
The declaration stated that 30 days will be needed to “resolve these issues within DOJ,” with some flexibility.
“The government is also seeking to continue the hearing date until September 23, 2008,” Mr. Bratt concluded.
In his story, Mr. Gertz quoted unnamed government officials as saying that senior Justice Department officials approved an indictment against Chi Mak, an engineer who worked for Power Paragon, an American defense contractor, charging him with conspiracy and “unlawful export of defense articles.” Four of his relatives would also be charged, the story said.
Mak was convicted last May of being an unregistered foreign agent who conspired to share sensitive details about American military technology to the People’s Republic of China.
Defense lawyers in the case objected to Mr. Gertz’s account, asserting in their motion that the government violated the Federal Rule of Criminal Procedure 6(e), which bars federal officials from giving information about grand jury proceedings to outsiders.
Judge Carney ordered a wide-ranging criminal investigation to determine who leaked information to Mr. Gertz.
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