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In a similar context, Judge Gesell aptly recognized that "our whole jurisprudence since the Magna Carta and the abolition of the Star Chamber proceedings requires that the judiciary in fact and appearance remain neutral, independent of Executive or legislative influence." Military Audit Project v. Bush, 418 F. Supp. 876, 878 (D.D.C. 1976). In that case, involving documents relating to the CIA's financing of the Glomar Explorer, Judge Gesell's efforts to conduct the proceedings in public ultimately gave way to the government's insistence that the national security would be harmed by disclosure of any of the evidence it intended to present in support of its claim for withholding.

While the appeal was pending, however, the government asserted that it would release some of the requested records and provide a public showing to support its position as to the remainder; accordingly, the case was sent back to the district court. No. 76-2037 (D.C. Cir., June 17, 1977). On remand, however, Judge Gesell recused himself from further consideration of the case, stating that he could not proceed to impartially judge the contested issues which remained, since he had already made findings as to these issues on the basis of ex parte testimony. Transcript of Hearing of June 28, 1977 (attached as an Addendum to this brief).

See

Plaintiffs suggest that in order to dispel the effect on

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these proceedings of the district court's consideration of ex parte testimony and use of secret procedures in contravention of the letter and spirit of the FOIA, this case should be remanded to the Chief Judge of the District Court for reassignment to a new judge.

CONCLUSION

For the reasons stated above, the decision below should be reversed and remanded to the Chief Judge of the District Court for reassignment to a new judge and for resolution of plaintiffs' claim in conformity with the decisions of this Court.

I hereby certify that copies of the foregoing brief and the accompanying appendix were served by hand upon Paul Blankenstein, Esq., Department of Justice Room 3632, Washington, D.C. 20530, this 22nd day of July 1977.

Henne Br. Calen

Diane B. Cohn

The above-entitled cause came on for Hearing before

the IONORABLE GERHARD A. GESELL, United States District Judge,

PROCEEDINGS

THE CLERK:

Civil Action No. 75-2103, Military

Audit Project, et al., v. Bush, et al. Mr. William Dobrovir for the Plaintiffs. Mr. Jeffrey Axelrad and Mr. Paul Figley for the Defendants.

THE COURT: When I learned that the mandate had come

down from the Court of Appeals, I thought I had better have you gentlemen in to see what lies ahead in connection with this

case.

Is it still a viable case or is it all over?

MR. AXELRAD: May it please the Court, the current

status of the matter is that a re-review of the material is

being conducted.

In all candor, think I should represent to

Your Honor that I am virtually certain that as a result of the re-review substantial portions if not all of the material at

issue will remain at issue.

THE COURT: Well, if that is the case, I have got some very serious problems, Ir. Axelrad that I want to talk about. I took your representations to me in good faith and

I have made, after ex parte hearings, decisive findings on many issues that I guess are still going to be litigated.

a position where i doubt very much that I should continge

in the case:

I heard witnesses. I reviewed documents, at your

insistence. I made findings of fact. Then as soon as you face the realities of an appellate court, you change your position entirely and take a direct opposite position from what you have been constantly taking in front of me.

You refused to supply a Vaughn v. Rosen index re

peatedly in our proceedings; and as soon as you got upstairs and under the gun, you said you would give one.

I think I am compromised in this case, as far as I can see. I don't see really that I should go forward with it. You have got 128,000 documents you are going to have to index; and I think you had better get at it, because that is what the Court of Appeals has ordered.

I feel very disturbed about my status in this whole matter. I certainly can't accept your representations any longer and I wouldn't be able to accept the representations of those witnesses who appeared before me, who cut their heart out about the secrecy here, and led to findings by the Court which now are

-

obviously, I was just made fun of by the

agency. I just have a doubt that I ought to go ahead.

MR. AXELRAD:

May I be heard briefly in the interest

of completeness on what Your Honor has just said?

THE COURT: Yes, surely.

i

MR. AXELRAD: If I may have Your Honor's indulgence,

present

This time a copy of what we did file

in the Court of Appeals and which led to the round which cause.

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