Attorney General of the United States of America v. The Irish People, Inc.

BAZELON, Senior Circuit Judge,

concurring:

I concur in all but Part 11(A) of Judge Wilkey’s opinion, and in its result. I also concur in Judge Wald’s opinion. In addition, I should only like to add that I do not read Part III of Judge Wilkey’s opinion to suggest that the government’s “good faith” in cases such as this could ever be a disposi-tive or even particularly important factor in determining whether or not dismissal is warranted to preserve a defendant’s right to due process. Cf. Wilkey op. at 950-951, 953-954. As Judge Wilkey’s opinion points out, one of the ways in which refusing to disclose legitimately privileged documents differs from disobeying a production order is that the latter act — but not the former— implicates the “court’s need to vindicate its authority.” Id. at 950-952. The good faith of the nonproducing party is necessarily an important and appropriate factor that courts should consider in the usual Rule 37 proceeding determining sanctions for failure to obey a production order. See Societe Internationale v. Rogers, 357 U.S. 197, 212 , 78 S.Ct. 1087, 1095 , 2 L.Ed.2d 1255 (1958). Whether or not Rule 37 technically applies to the refusal to disclose legitimately privileged documents, however, the appropriate task for a court in that context is simply to “measure[] the relative weights of the parties’ competing interests with a view toward accommodating those interests, if possible.” Wehling v. CBS, 608 F.2d 1084, 1088 (5th Cir. 1979). The non-disclos *956 ing party’s good or bad faith may create objective facts that make “accommodation” more or less feasible. On the other hand, its “good faith” in and of itself should not be used to dilute the due process protection accorded to the party seeking disclosure.

Separate Opinion of Circuit Judge WALD, in which Senior Circuit Judge BA-ZELON concurs:

I concur in Judge Wilkey’s opinion with the exception of Part II, A. I agree that a colorable claim of improper motivation has not yet been demonstrated but cannot entirely accept either his analysis of the legislative history or his comments on constitutionally permissible motivation.

As Judge Wilkey observes, Diggs requires that “a defendant alleging or invoking the selective prosecution defense, even at the discovery stage, must offer at least a colorable claim both that the prosecution was improperly motivated and that it was selective in the first place.” Opinion of Wilkey, J., at 932. Here, neither prong of the Diggs standard was satisfied. First, the district court declined to rule on the issue of selection “because of the manifest difficulty of finding others ‘similarly situated’ in the sense of voicing strong and regular opposition to the foreign policy (regarding Ireland) of a major United States ally (Great Britain).” Mem. Op. at 3, J.A. at 114. And second, the court failed to identify adequate factual support for a colorable showing that the present action was prosecuted to “alleviat[e] political as well as financial and military support furnished [to] Irish militants by U. S. Citizens.” Mem. Op. at 4, J.A. at 115 (emphasis in original). The district court’s opinion points only to one witness’ statement that “[p]erhaps” the Irish government made such a request. Deposition of Dennis Dickson at 52 (Jan. 30, 1980).

I cannot agree with Judge Wilkey, however, that FARA enforcement may permissibly be focused on one side (i.e., the side currently supported by the Administration) of foreign policy controversies that may be the subject of debate among Americans. Certainly the text of the Act and its legislative history allow the Justice Department to take account of foreign intelligence sources in deciding who is a foreign agent and how dangerous the agent may be and permit use of limited resources to target those alleged agents deemed most dangerous or powerful (i.e., saboteurs, terrorists). But I resist the notion that the power of prosecution may be used selectively to manage the information put before the American people in debates over foreign policy. In this context, i.e., selectively labelling a newspaper as an organ of propaganda for a foreign agent, issues of constitutionally improper motivation surface disturbingly. If the district court were to identify evidence which colorably shows that this newspaper was singled out for enforcement while those expressing views on the other side of the controversy were left alone and “ ‘the prosecution was undertaken with the motive to suppress’ protected expression,” Mem. Op. at 4, J.A. at 115 (quoting United States v. Peskin, 527 F.2d 71, 86 (7th Cir. 1975) (en banc)), the defendants would have made the requisite colorable showing of selective prosecution. FARA, evenhandedly applied, has survived constitutional objections, and in fact serves first amendment values by supplementing the information that might otherwise be available to the public. And I concede that, as Judge Wilkey’s opinion points out, some unevenness was built into the Act through its congressionally authorized exemptions in the service of compelling interests of national security. But that unevenness may not permissibly be expanded through prosecutorial discretion to discredit views currently in disfavor while withholding the “spotlight of pitiless publicity” from views our government and allies prefer be presented to the American public in more palatable form.

Even were the district court to identify a colorable showing of both elements of a selective prosecution defense, however, *957 there is some question whether the documents at issue are, even under a “liberal” standard, “sufficiently related to that defense to justify compelling the government to release them.” Mem. Op. at 5, J.A. at 116. Their relevance must, of course, be considered on remand in light of additional fact findings. But the district court’s description suggests the documents record only communications upon which the Attorney General could permissibly base an exercise of prosecutorial discretion. The existence of such communications would seem to bear only tangentially on the claim that the Attorney General responded to pressure to suppress political support for Irish militants. Such attenuated relevance, even were it sufficient to justify a discovery order, at the very least lessens the value of the documents to the defense and suggests that their unavailability to the defense provides slender support for dismissal.