In re National Security Archive
104 F. Supp. 3d 625
S.D.N.Y.2015Background
- In 1950 a federal grand jury indicted Julius and Ethel Rosenberg for conspiracy to commit espionage; they were convicted and executed in 1953.
- David Greenglass, Ethel’s brother, testified to the grand jury and at trial; years later he admitted in media interviews that he lied about Ethel’s involvement to protect his wife.
- In 2008 petitioners sought unsealing of Rosenberg-era grand jury transcripts; the court ordered release for 43 of 46 witnesses but denied release of Greenglass’s transcript while he was alive (others objected or were unresolved).
- Petitioners renewed the motion after Greenglass’s and Max Elichter’s deaths; Elichter’s family did not object, but Greenglass’s family opposed disclosure.
- The Government argued continued privacy and safety concerns for surviving family members; petitioners emphasized substantial historical interest and prior public disclosures by Greenglass.
- The court concluded that posthumous privacy interests cannot bar disclosure, historical interest and other factors weigh for release, and ordered unsealing of Greenglass’s and Elichter’s grand jury testimony; Danziger’s testimony remained sealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether to unseal grand jury transcripts of David Greenglass and Max Elichter | Strong, continuing public/historical interest justifies release; Greenglass previously spoke publicly about his testimony | Secrecy should remain to protect family privacy and safety even posthumously | Court ordered unsealing of Greenglass’s and Elichter’s transcripts (family privacy objections insufficient postmortem) |
| Whether a witness’s or family’s posthumous objections can block release | Petitioners: death ends the witness’s secrecy interest; historical need outweighs family concerns | Government/family: publicity will harm surviving relatives who used assumed identities | Court: posthumous interest does not prevent disclosure; government failed to show specific, ongoing harm to justify continued secrecy |
| Whether historical interest and prior public disclosures support departure from grand-jury secrecy | Petitioners: longstanding historical significance and Greenglass’s prior public statements undercut secrecy interests | Government: general tradition of grand jury secrecy and its purposes | Court: special-circumstance historical interest plus prior disclosures outweigh secrecy; discretion favors release |
Key Cases Cited
- In re Biaggi, 478 F.2d 489 (2d Cir. 1973) (recognizes tradition of grand jury secrecy but that it is not absolute)
- United States v. Procter & Gamble Co., 356 U.S. 677 (1958) (articulates purposes of grand jury secrecy)
- In re Craig, 131 F.3d 99 (2d Cir. 1997) (allows unsealing on special circumstances, including historical interest)
- United States v. Rose, 215 F.2d 617 (3d Cir. 1954) (discusses rationale for grand jury secrecy)
- United States v. Rosenberg, 195 F.2d 583 (2d Cir. 1952) (appellate decision in Rosenberg prosecutions cited for context)
- In re American Historical Ass’n, 49 F. Supp. 2d 274 (S.D.N.Y. 1999) (unsealing grand jury materials where prosecutorial conduct and historical interest implicated)
- In re May, 651 F. Supp. 457 (S.D.N.Y. 1987) (same)