In Re: Al Fayed v.

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: MOHAMED AL FAYED,
Appellant,
v. No. 99-1268
UNITED STATES OF AMERICA,
Intervenor.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(MISC-99-35)
Argued: December 3, 1999
Decided: April 26, 2000
Before LUTTIG and MOTZ, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by designation.
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Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Luttig and Senior Judge Michael joined.
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COUNSEL
ARGUED: Paul Christian Rauser, WILLIAMS & CONNOLLY,
Washington, D.C., for Appellant. Henry Thomas Byron, III, Appel-
late Staff, Civil Division, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Intervenor. ON BRIEF: Terrence
O'Donnell, WILLIAMS & CONNOLLY, Washington, D.C., for
Appellant. David W. Ogden, Acting Assistant Attorney General,
Lynne A. Battaglia, United States Attorney, Mark B. Stern, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUS-
TICE, Washington, D.C., for Intervenor.
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OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Seeking information related to the death of his son in a Paris car
wreck that became the focus of international media attention,
Mohamed Al Fayed filed an ex parte application with the district
court for the issuance of a subpoena duces tecum to the National
Security Agency (NSA). Al Fayed applied for the subpoena under 28
U.S.C. § 1782(a), which authorizes district courts, at the request of an
"interested person," to order document production for use in proceed-
ings in a foreign or international tribunal. Al Fayed claimed an inter-
est in proceedings before a French magistrate judge investigating the
crash that led to his son's death. The district court declined to issue
the subpoena, citing national security concerns raised by NSA in its
response to a Freedom of Information Act (FOIA) request. Because
the district court did not abuse its discretion under § 1782, we affirm.
I.
In February 1999, Al Fayed asked the district court to issue a sub-
poena duces tecum for all NSA documents relating to two victims of
a 1997 Paris car crash: Dodi Fayed and Diana, Princess of Wales. In
addition, he sought all NSA documents relating to himself and to the
principals in an alleged plot to sell him information supposedly origi-
nating in Central Intelligence Agency files.
Al Fayed applied for the subpoena under 28 U.S.C.§ 1782(a)
(1994 & Supp. III 1997) which provides: "The district court of the
district in which a person resides or is found may order him . . . to
produce a document or other thing for use in a proceeding in a foreign
or international tribunal, including criminal investigations conducted
before formal accusation. The order may be made . . . upon the appli-
2
cation of any interested person . . . ." Al Fayed claimed to be an "in-
terested person" in the now-closed investigation of Premier Juge
d'instruction Herve Stephan into whether members of the press could
be held criminally responsible for the crash.
Al Fayed contended that he had learned that NSA might possess
information related to the crash after reading reports in the Daily Mail
and the New York Daily News of surveillance by United States intelli-
gence of Princess Diana, and after participants in the above-
mentioned plot attempted to sell him supposed United States intelli-
gence documents. In support of his application, Al Fayed offered a
1998 letter from NSA responding to a news agency's FOIA request
for records related to Princess Diana. In that letter NSA acknowl-
edged the existence of 182 documents in NSA files covered by the
request, denied access to 39 classified NSA documents, and for-
warded the request for the remaining documents to the originating
agencies.
Under FOIA, an agency need not make documents available to the
public that are "(A) specifically authorized under criteria established
by an Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly classified pursu-
ant to such Executive order." 5 U.S.C. § 552(b)(1) (1994). The NSA
response to the news agency's FOIA request specifically cited this
provision--the first exemption from FOIA's otherwise broad commit-
ment to government openness--in denying access to the classified
documents. NSA's letter explained that the documents"are classified
because their disclosure could reasonably be expected to cause excep-
tionally grave damage to the national security."
The district court assumed that the investigation by the French
magistrate, then still ongoing, constituted "proceedings" to which
§ 1782 applied, and that Al Fayed was an "interested person" in those
proceedings. The court viewed Al Fayed's application under § 1782,
however, as an attempt "to make an end run around FOIA." Noting
its broad discretion under § 1782, the court declined to issue a sub-
poena under that statute for documents that had already been identi-
fied by NSA as containing sensitive information pertinent to the
national security.
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Al Fayed appeals, arguing in part that the district court erred
because it assumed that his application sought the same material as
the news agency's FOIA request, when in fact it did not. The United
States intervened, and in doing so informed us of a fact that Al Fayed
had failed to mention: prior to applying to the district court for a sub-
poena, Al Fayed's attorneys had submitted their own FOIA request
to NSA, asking for precisely the same material as Al Fayed now seeks
under § 1782. NSA denied that FOIA request in July 1999, again cit-
ing FOIA's first exemption, 5 U.S.C. § 552(b)(1), and the possibility
of "exceptionally grave damage to the national security."
Al Fayed conceded at oral argument that in September 1999 Juge
Stephan closed his investigation into the role members of the press
may have played in causing the car crash. According to press
accounts, the investigation lasted eighteen months and involved over
200 interviews and 6,000 pages of evidence, after which the magis-
trate concluded that the driver's drunkenness was the "direct, immedi-
ate and certain cause of the accident."
Apparently, Al Fayed has exercised his right under French law to
appeal the termination of the investigation, but this appeal is all that
now remains of the "proceeding in a foreign . . . tribunal" that
assertedly would be assisted by the issuance of a subpoena under
§ 1782. Although it is not clear whether a private party's appeal from
a magistrate's decision to close a criminal investigation is the sort of
"proceeding" to which Congress sought to extend the assistance of the
federal courts, we do not decide the case on this ground. The question
has not been briefed by the parties, and its resolution would require
a somewhat detailed inquiry into a foreign body of law.
We need not undertake this inquiry, because the district court did
not abuse its discretion under § 1782 in declining, on the record
before it, to issue a subpoena to NSA.
II.
Section 1782 affords the district courts "wide discretion" in
responding to requests for assistance in proceedings before foreign
tribunals. See In re Esses, 101 F.3d 873, 876 (2d Cir. 1996); Lo Ka
Chun v. Lo To, 858 F.2d 1564, 1565 (11th Cir. 1988). The 1964
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amendments to § 1782, which expanded the range of "proceeding[s]"
to which the district court might offer its assistance, were intended to
enhance that discretion. See S. Rep. No. 88-1580 (1964), reprinted in
1964 U.S.C.C.A.N. 3782, 3788 ("[I]t is intended that the court have
discretion to grant assistance when proceedings are pending before
investigating magistrates in foreign countries."); see also In re Letters
Rogatory from the Tokyo District, Tokyo, Japan, 539 F.2d 1216, 1218
(9th Cir. 1976) ("The statute . . . has had a history which reflects a
desire on the part of Congress to increase the power of district courts
to respond to letters rogatory" from foreign officials.).
In exercising its discretion under § 1782, the district court should
be guided by the statute's "twin aims of providing efficient means of
assistance to participants in international litigation in our federal
courts and encouraging foreign countries by example to provide simi-
lar means of assistance to our courts." In re Malev Hungarian Air-
lines, 964 F.2d 97, 100 (2d Cir. 1992). Al Fayed's ex parte
application did not make clear how the issuance of the subpoena
would serve Congress's "twin aims" in enacting and amending
§ 1782. Al Fayed did not demonstrate how the information he sought
would assist his "participation" in the proceedings before the French
magistrate. Nor does it seem plausible that the issuance of a subpoena
for highly classified government documents would set an example
that would encourage foreign governments to grant"similar means of
assistance" to litigants in our courts.
The arguments and evidence Al Fayed did present in his applica-
tion understandably elicited skepticism from the district court.
Al Fayed, a private party, asked the district court to issue a subpoena
ex parte to an agency whose work involves some of the most sensitive
and necessarily secretive operations of the United States government.
Rather than asserting rights under FOIA, the typical route for private
parties to gain access to government documents, he invoked a statu-
tory provision typically utilized by foreign judicial officials, occasion-
ally utilized by prosecutors, plaintiffs and defendants in foreign
judicial proceedings, and almost never utilized by persons in
Al Fayed's position. He offered scant materials in support of his
application, and he only summarily explained the purpose and func-
tion the requested documents would serve in the foreign proceeding.
Disclosure of the documents sought in Al Fayed's application had
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already been identified by NSA as potentially causing "exceptionally
grave damage to the national security." Under these circumstances,
the district court was well within its broad discretion to deny the
application. The statute explicitly commits to the district court's dis-
cretion the determination of whether to grant a request for assistance
in a foreign tribunal. The district court appropriately exercised that
discretion here. See Esses, 101 F.3d at 876 ("Substantively, so long
as the district court fashions its order in accordance with the ``twin
aims' of § 1782, . . . it acts within its discretion.").
Al Fayed argues that the district court erroneously assumed that the
news agency's FOIA request asked for substantially the same material
as Al Fayed's subpoena application. To the extent that that argument
had any merit, it is now foreclosed by Al Fayed's own December
1998 FOIA request, which asked for precisely the same material for
which he now invokes § 1782. NSA viewed Al Fayed's FOIA
request, like that of the news agency, as raising serious national secur-
ity concerns. To the extent NSA had documents covered by the
request, it refused to disclose them under FOIA's first exemption, 28
U.S.C. § 552(b)(1). Al Fayed can seek judicial review of that determi-
nation, of course, see 5 U.S.C. § 552(a)(4)(B) (Supp. IV 1998), but
in the absence of a finding that NSA improperly refused to disclose
the documents, the agency's determination should be credited.
Congress's salutary purposes in enacting § 1782 simply do not
anticipate the issuance of a subpoena for documents whose disclosure
would be likely to harm the national security. Those purposes cer-
tainly do not require the release of documents properly classified as
secret and therefore exempt from disclosure under FOIA's first
exemption--at least not on the basis of an ex parte application with
as little supporting justification as this one.
Because we decide the matter on narrower grounds, we need not
reach the Government's argument that, based on principles of sover-
eign immunity and statutory construction, the United States is not a
"person" from whom testimony can be required under § 1782.*
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*Al Fayed has also filed an application under § 1782 in Washington,
D.C. for the issuance of a subpoena to the Central Intelligence Agency.
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III.
The judgment of the district court denying the ex parte application
is
AFFIRMED.
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The district court in that case initially issued a subpoena, and the Gov-
ernment moved for a protective order. The court recently held that "per-
son" under § 1782 did "not include a federal agency, such as the CIA"
and so quashed the subpoena. See In re Al Fayed , Misc. No. 99-43
(D.D.C. April 10, 2000).
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