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December 21, 1979

W. Mark FELT and Edward S. Miller.

The opinion of the court was delivered by: BRYANT



 On August 17, 1978, this court, pursuant to Fed.R.Crim.P. 16(a)(1)(C), granted certain discovery requests of defendants Felt and Miller. Two such requests, Miller's request # 11 and Felt's request # C-4, were directed at materials reflecting the foreign activity of the Weathermen Organization, including foreign travel and contact or collaboration with foreign powers or agents. *fn1" This court considered these materials relevant to the defendants' asserted defense of reasonable reliance on the authority of superiors. See United States v. Barker, 178 U.S. App. D.C. 174, 546 F.2d 940 (D.C.Cir.1976).

 In particular, part (d) of Miller's request # 11 asked for "any and all reports of foreign law enforcement or governmental agencies including but not limited to the Royal Canadian Mounted Police;" Felt's request # C-4 encompassed all "documentary materials made and maintained or received by the Justice Department and the FBI in the ordinary course of business. . . ."

 On December 13, 1978, defendant Miller filed a motion to compel discovery of material relating to the foreign activity of the Weathermen Organization. The motion alleged that the government had failed to produce documents received from foreign intelligence agencies and the NSA falling within the scope of Felt and Miller's discovery requests # C-4 and # 11. The government failed to respond directly to this motion; it did, however, continue to challenge the applicability of the Barker-Martinez defense underlying the defendants' discovery claim. During a hearing among the parties, this court ruled that the Barker-Martinez defense was available to defendants Miller and Felt. Transcript of Hearing, 2/22/79, at 57-58.

 On March 30, 1979, counsel for the government advised this court that although "(t)he government has completed its discovery," "some dispute will remain as to the adequacy of the government's compliance with discovery and that in camera resolution of those disputes by the court will be necessary." Letter from F. J. Martin to Chief Judge William B. Bryant (3/30/79). On April 4, 1979, defendant Miller moved to dismiss the indictment for failure to produce material received from foreign intelligence sources and the NSA relating to the foreign activity of the Weathermen; defendant Felt filed a similar motion on April 6, 1979. *fn2"

 The government responded by filing a Motion to Modify the August 17, 1978 discovery order. *fn3" This court was asked to relieve the government from complying with Miller's discovery request # 11(d) or any portion of his request # 11 or Felt's request # C-4 requiring the production of documents or information obtained by the FBI from cooperative foreign intelligence agencies. According to the government, such documents and information were submitted to the FBI pursuant to strict understandings that they would not be disclosed to anyone outside the Executive Branch without consent of the foreign source. *fn4"

 In support of its motion, the government distinguished two types of documents or information received from foreign sources: material disclosing contact or collaboration between the Weathermen and hostile foreign powers and material resulting from the general surveillance and investigation of Weathermen fugitives and other suspected "hippies" by intelligence agencies of the host foreign country. The government concedes the relevancy of this first category. The Attorney General, however, has submitted in camera affidavits stating that disclosure of such documents (or information contained in the documents) other than in an ex parte, in camera showing to this court, would adversely affect the national interest by severely impairing vital relationships with foreign intelligence agencies. The government has delivered approximately 38 documents falling under this claim of privilege to this court for ex parte, in camera review. *fn5" Accompanying 25 of the documents are memorandum, reports, and other material from non-privileged domestic sources. The government claims that these discoverable domestic sources provide the defendants with "parallel" or partially "parallel" information, thereby amounting to adequate compliance with the discovery requests. Although no "parallel information" of any type could be found for the remaining 13 documents, the government has submitted admissions conceding relevant facts that also appear in most of the material.

 The government has also delivered to this court for ex parte, in camera review approximately 900 documents or information from foreign agencies pertaining to general surveillance and investigation of Weathermen in the host foreign country. These documents are first alleged to be irrelevant and immaterial to the defendants' case; if the court should find the opposite, the government had indicated its intent to assert a claim of privilege identical to the one described above.

 On June 5, 1979, defendant Miller filed a motion to produce the specific understandings with foreign agencies prohibiting disclosure of intelligence information or material forwarded to the FBI. *fn6"


 The defendants have developed two complementary legal arguments, each in the end resting on the asserted importance of material from foreign agencies for the elaboration of their Barker-Martinez defense. Defendants argue that the government's motion to modify the discovery order of August 1978 is premised on a faulty claim of privilege, an improper use of ex parte, in camera procedures, and shields material at the heart of their defense. Their motion to dismiss the indictment stresses the latter point, implicitly accepting the claim of privilege but relying on the doctrine developed by Learned Hand in United States v. Andolschek, 142 F.2d 503, 506 (2nd Cir. 1944): the government cannot choose to prosecute an individual while erecting a claim of privilege to hide material relevant to the defense.

 It appears most logical to address first the validity of the asserted privilege and the ex parte, in camera, procedures adopted to determine its applicability and impact. If the privilege and procedure are legally permissible, this court must then determine whether the nature of the desired material requires a choice ...

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