within the context of this case. The standards associated with such a review are discussed in the succeeding section. Of present interest is the defendants' claim that they have a right to examine privileged material and argue about its impact on this case.
It is obvious that "the security which the privilege is meant to protect," United States v. Reynolds, 345 U.S. 1, 10, 73 S. Ct. 528, 533, 97 L. Ed. 727 (1953), will be jeopardized if defendants participate in an in camera examination of the material. In camera, ex parte review has been approved in a number of criminal and civil cases involving general discovery requests aimed at sensitive materials, In re Attorney General, 596 F.2d 58, 60 (2nd Cir. 1979) (civil) (FBI files), cert. denied sub nom., Socialist Workers Party v. United States Attorney General, 444 U.S. 903, 100 S. Ct. 217, 62 L. Ed. 2d 141 (1979); United States v. Boyce, 594 F.2d 1246, 1252 (9th Cir. 1979) (criminal) (national security material); United States v. Buckley, 586 F.2d 498, 506 (5th Cir. 1978), cert. denied, 440 U.S. 982, 99 S. Ct. 1792, 60 L. Ed. 2d 242 (1979) (criminal) (FBI files); United States v. Ehrlichman, 178 U.S. App. D.C. 144, 546 F.2d 910 (D.C.Cir.1976), cert. denied, 429 U.S. 1120, 97 S. Ct. 1155, 51 L. Ed. 2d 570 (1977) (criminal) (tapes of Presidential conversations). The approach also has been adopted with discovery requests made in conjunction with motions to suppress. United States v. Lemonakis, 158 U.S. App. D.C. 162, 485 F.2d 941, 962-63 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974); United States v. Humphrey, 456 F. Supp. 51, 59 (E.D.Va.1978). In camera, ex parte review has also been contemplated as a means of implementing subpoenas directed at sensitive material for use at trial, United States v. Nixon, 418 U.S. 683, 714-715, 94 S. Ct. 3090, 3110-3111, 41 L. Ed. 2d 1039 (1974), or grand jury proceedings, Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700, 720-21 (D.C.Cir.1973).
The fundamental difference between the type of review at issue in Alderman and the present case has already been discussed, supra at 184. The national security considerations at issue here also counsel against two much reliance on Alderman, for when discovery requests touch upon "a field as delicate and sensitive as foreign intelligence gathering," in camera procedures may be necessary to determine that the defendants suffer no injustice. United States v. Lemonakis, 158 U.S. App. D.C. 162, 485 F.2d 941, 963 (D.C.Cir.1973), cert. denied, 415 U.S. 989, 94 S. Ct. 1586, 39 L. Ed. 2d 885 (1974).
It is important to note that the Alderman Court was not confronted with any claim of privilege, i. e., national security, state secrets, or otherwise. Although the two companion cases involved espionage convictions, the effect on national security of permitting the defendants to examine transcripts of illegally heard conversations was not as clearly delineated as it is in the present case.
The existence of a former claim of privilege, raises considerations similar to those presented by Justices Harlan and Fortas in their opinions in Alderman, 394 U.S. at 187, 89 S. Ct. at 974 (Harlan, J. dissenting); id. at 201, 89 S. Ct. at 981 (Fortas, J. concurring and dissenting in part). Both Justices suggested that ex parte, in camera review prevail when a motion to suppress involved serious national security considerations. Their reasoning is persuasive in the context of the present case, when disclosure could jeopardize a number of reliable intelligence sources each capable of delivering a variety of intelligence information. See United States v. Williams, 188 U.S. App. D.C. 315, 580 F.2d 578, 586 (D.C.Cir.), cert. denied, 439 U.S. 832, 99 S. Ct. 112, 58 L. Ed. 2d 127 (1978) (in "taint" proceeding under Alderman effect of disclosure on national security minimized because limited to " "defendant's own conversations' " overheard on " "own premises' ").
This is not to suggest that the interests of the defendants must be sacrificed in the name of national security. In the present case, the government has provided this court with "parallel" and "partially" parallel information, as well as admissions; it is possible to place the information from the foreign source alongside the substitute and identify any inadequacies. Compare with United States v. Alderman, 394 U.S. 165, 182, 89 S. Ct. 961, 971, 22 L. Ed. 2d 176 (1969) (such a comparison not possible when determining the subtle issue of "tainted conversations").
This manner of presentation leads this court to believe that ex parte, in camera review will not prejudice the defendant. Taglianetti v. United States, 394 U.S. 316, 317-18, 89 S. Ct. 1099, 1100-1101, 22 L. Ed. 2d 302 (1969) (task is not "too complex," or "margin of error too great" to prohibit in camera judgment of trial court).
3. Assessing the Defendants' Need for Discovery
Defendants' right to discover documentary material controlled by the government rests on two grounds: the constitutional right to discover exculpatory evidence, as developed in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and the statutory right to documents which are material to the preparation of the defense, Fed.R.Crim.P. 16(a)(1)(C).
The Court has recently indicated that the constitutional right is rather narrow, applying only to material that "creates a reasonable doubt" about the defendant's guilt. United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976). Although Rule 16(a)(1)(C) has at times been interpreted to track closely with the constitutional standard, see United States v. Ross, 511 F.2d 757, 762 (5th Cir.), cert. denied, 423 U.S. 836, 96 S. Ct. 62, 46 L. Ed. 2d 54 (1975), this court believes that documents are "material in the preparation of the defense" if there is a strong indication that they will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment and rebuttal. See United States v. Tanner, 279 F. Supp. 457, 470 (N.D.Ill.1967), rev'd on other grounds, 471 F.2d 128 (7th Cir. 1972), cert. denied, 409 U.S. 949. 93 S. Ct. 269, 34 L. Ed. 2d 220 (1972) (cited approvingly in Notes of Advisory Committee on 1974 Amendments to Rules of Criminal Procedure, 62 F.R.D. 271, 311 (1975)); Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo.L.J. 1276, 1278-80 (1966) (discussing meaning of "materiality" in predecessor to Rule 16(a)(1)(C)); cf. United States v. Crow Dog, 532 F.2d 1182, 1189 (8th Cir. 1976), cert. denied, 430 U.S. 929, 97 S. Ct. 1547, 51 L. Ed. 2d 772 (1977) (no Brady violation when undisclosed material would have been used for "minimal" impeachment purposes).
In the present case, the government has asserted that some documents are irrelevant and immaterial to the defendants' case. This court has examined a representative sample of such documents, with the constitutional and statutory standards discussed above in mind. This court believes that this material is not material to the defendants' case, in particular their Barker-Martinez defense. Such a defense does not require a general investigation of how friendly governments monitored Weathermen activities. Cf. Clay v. United States, 397 F.2d 901, 915 (5th Cir. 1968), vacated on other grounds sub nom., Giordano v. United States, 394 U.S. 310, 89 S. Ct. 1163, 22 L. Ed. 2d 297 (1969) (defense to violation of Selective Service laws did not require broad investigation into activities and procedures of draft system).
The government has conceded the relevancy of those 38 documents falling under its claim of privilege; it has also attempted to minimize the effect of non-disclosure by claiming that information revealing contacts between the Weathermen and hostile foreign powers is not a "core" issue in the defendants' case. Defendants follow the lead of the government, simultaneously dancing in two different directions. They attack the privilege, and argue that the documents falling under such a claim relate to "core issues" and must be discovered, well aware that prosecutions involving sensitive intelligence information are often dropped by the government because of discovery and trial demands. E. g., DeChamplain v. McLucas, 367 F. Supp. 1291, 1293 n.1, 1295 (D.C.D.C.1973). Or, defendants accept the privilege, argue that the withheld information relates to "core issues," and move to dismiss the indictment.
A satisfactory solution of the problem requires that the "core/non-core, comply or dismiss" approach urged by the parties be jettisoned. Contacts between the Weathermen and hostile foreign powers are clearly important to defendants' Barker-Martinez defense, and that defense is as close to the "core" as any other issue in this case. Defendants' right to the material covered by the privilege must be judged in reference to the constitutional standard set forth in Agurs, and the statutory standard incorporated in Rule 16. The latter, however, becomes more demanding in the context of a formal assertion of privilege. United States v. Nixon, 418 U.S. 683, 713, 94 S. Ct. 3090, 3110, 41 L. Ed. 2d 1039 (1974) (Special Prosecutor required to demonstrate that subpoenaed Presidential material was " "essential to justice of the (pending criminal) case.' "); United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31, 76-77 (D.C.Cir.1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L. Ed. 2d 250 (1977) (defendant required to show " "demonstrated, specific need for evidence' " in order for Rule 16 request to prevail over privileged Presidential material) (citing United States v. Nixon ).
This court has examined the 38 documents. Special attention has been given to the demands of the Barker-Martinez defense, and information already available to the defendants, e.g. "parallel" information, "partially" parallel information, admissions, and documents released earlier in the case. See United States v. Lee, 589 F.2d 980, 989 (9th Cir. 1979) (defendant failed to establish that discovery material in his possession was inadequate to support defense). Two documents contain information of extreme importance for the Barker-Martinez defense, and appear to meet the heightened standard of scrutiny associated with Rule 16 in cases involving privilege and Agurs.
This determination does not require the dismissal of the indictment, as the defendants suggest. Such a result would be warranted only if the court recognizes the government's claim of privilege as absolute, prevailing over the type of showing associated with Agurs and a more demanding version of Rule 16. Other claims of privilege have not been afforded absolute status. United States v. Nixon, 418 U.S. 683, 711-713, 94 S. Ct. 3090, 3109-3110, 41 L. Ed. 2d 1039 (1974) (confidentiality of Presidential conversations); Roviaro v. United States, 353 U.S. 53, 62-64, 77 S. Ct. 623, 628-629, 1 L. Ed. 2d 639 (1957) (informant's privilege); Nixon v. Sirica, 159 U.S. App. D.C. 58, 487 F.2d 700, 716-718 (D.C.Cir.1973) (confidentiality of Presidential conversations). And although the Court has never directly addressed the manner in which a "claim of need to protect military, diplomatic, or sensitive national security secrets" is to be balanced against countervailing interests, United States v. Nixon, 418 U.S. 683, 706, 712 n.19, 94 S. Ct. 3090, 3109, 41 L. Ed. 2d 1039 (1974), this court believes that the present case requires a balancing of interests similar to that found in other cases involving claims of privilege.
Defendants' interest in the two documents referred to earlier, supra at 186, is of "constitutional dimensions," United States v. Nixon, 418 U.S. 683, 711, 94 S. Ct. 3090, 3109, 41 L. Ed. 2d 1039 (1974). The Agurs standard is designed to vindicate the due process clause of the fifth amendment, by insuring that the defendant receives all the material necessary for a fair trial. Heightened scrutiny under Rule 16 is designed to identify only material that is of the utmost importance to the defendant and his counsel in the preparation of the defense. "(T)he allowance of the privilege to withhold" such material would "cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts." Id. at 712, 94 S. Ct. at 3110.
In addition to determining "the inroads of . . . (the) privilege on the fair administration of criminal justice," id. at 711-712, 94 S. Ct. at 3109, this court must also determine the impact disclosure may have on the rationale and policy underlying the claim, id. at 712, 94 S. Ct. at 3109. Two extensive protective orders are in effect in this case. The two documents in question are to be turned over to the defendant subject to any redactions necessary to protect intelligence sources, pursuant to P 8 of the December 1978 protective order.
In addition, the two documents are to be stored in the vault at the Justice Department, in accordance with the supplementary protective order of November 1979. These factors lead this court to conclude that disclosure of the two documents will not unduly impair relationships with foreign intelligence services.
For the reasons set forth in this memorandum, it is hereby ORDERED that:
(a) The government's Motion to Modify the August 1978 Discovery Order is granted, except for documents identified as II(A)(1)(a) and III(F)(1)(a) (without the Appendix) which were submitted to this court for ex parte, in camera review in April 1979. These two documents may be redacted to prevent disclosure of intelligence sources, pursuant to P (8) of the December 1978 Protective Order, and stored in accordance with the Supplementary Protective Order.
(b) Defendant Miller's Motion to Compel Discovery of Foreign Connections of Weathermen is denied, except for the two documents referred to above in P (a).