Posted on 03/10/2006 2:43:30 PM PST by Cboldt
A federal judge ordered the CIA on Friday to turn over highly classified intelligence briefings to Vice President Dick Cheney's former top aide to use in the aide's defense against perjury charges.
U.S. District Judge Reggie B. Walton rejected CIA warnings that the nation's security would be imperiled if the presidential-level documents were disclosed to lawyers for I. Lewis "Scooter" Libby, Cheney's former chief of staff.
The judge said the CIA can either delete highly classified information from the briefing material and provide copies of what Libby received six days a week, often with Cheney. Or, Walton said, the CIA can produce "topic overviews" of the matters covered in the briefings.
The judge also ordered the CIA to give Libby an index of the topics covered in follow-up questions that the former White House aide asked intelligence officers who conducted the briefings.
In seeking CIA input late last month, Walton appeared to have been trying to broker a compromise between defense attorneys and prosecutors to avoid a lengthy court battle with the Bush administration over the briefing material.
The judge's order indicates he is ready for such a fight. He set a schedule for the Bush administration to file any objections by March 24.
The charges against Libby - perjury, obstruction of justice and lying to FBI agents - grew out of an investigation into the leak of a CIA operative's identity.
Libby Granted Limited Access to White House Documents (Update1)As always, links or leads to source documents is always appreciated. I have a natural distrust of third party interpretations.
March 10 (Bloomberg)[almost eveything snipped]
It would take three months for the CIA to prepare summaries of topics presented during 275 morning briefings Libby received between May 6, 2003, through March 24, 2004, the agency said. That compares with the nine months it would have taken to compile and review the full documents, which contain highly sensitive intelligence information, for release, the CIA said.
Walton said Libby needs to see only summaries for the following periods: June 7 to July 14, 2003; Oct. 12-16, 2003; Nov. 24-28, 2004; March 3-7, 2004, and March 22-26, 2004.
http://www.bloomberg.com/apps/news?pid=10000103&sid=avyGhfsLkjs8&refer=us
When if involves a criminal defense. That's the beauty of our criminal defense system. You're innocent until the government proves you are guilty. The government cannot withhold information it has, that may help prove your innocence, even if it involves national security.
Sort of. The Jabara case is a nifty example of how the government can assert state secret without queering the entire trial. The defendant is entitled to the most exculpating inference that the withheld data would provide, if shown.
http://www.freerepublic.com/focus/f-news/1550960/posts?page=238#238 <- scroll UP for more
Thanks,
I have wondered what would happen if Fitzgerald were to say: "I'm willing to stipulate that Libby was busy with a lot of top secret stuff, so there is no need to produce it".
Obviously, this case is much different from Jabara, because in Jabara, the withheld evidence WAS the evidence supposedly making the crime.
With the Libby case, Libby is mounting a defense to lying on "Matter A," that depends on "Matter A" being trivial and easily forgotten, compared with Libby's very busy life on "Matters P, Q, T, and X, Y and Z."
So, Fitz won't have as easy a time of dispensing with the Judge's order. There will be some dickering at the CIA about what they might be able to put together, some discussion with the VP and President about their sense of what they're willing to release, etc. Hey, it's a pardon in "we can't tell you that" clothing.
The alternative is Fitz appealing the order. He's independent by design, and may choose to do that. It puts off the chore of conformity, and gives the CIA and administration time to play with various ways to comply with the order if the appeal is lost.
I'd like to see it appealed - just because it's an interesting window into what the executive can withhold as a matter of stifling criminal prosecution. Sort of a Nixon v. US sort of case, but on little matters rather than big ones.
By Jim VandeHeiI think the assertion of "this has produced delay" is false. Walton anticipated some amount of sparring over exactly these documents, and the trial preparation is -so far- on schedule. An interlocutory appeal would take it off schedule.
Washington Post Staff Writer
Saturday, March 11, 2006; Page A06U.S. District Judge Reggie B. Walton said in yesterday's decision that the government must provide edited versions of intelligence material also viewed by Cheney in morning briefings and a list, by topic only, of information requests Libby made during the top-secret meetings. Walton said that if the government cannot produce redacted copies of the documents in question, a list of general topic areas discussed each day would suffice. He said the material is relevant to Libby's "preoccupation defense."
"The Court has painstakingly endeavored to ensure that the defendant is provided with the information he truly needs to prepare his defense based upon what he represented through counsel will be his theory of why he should not be held culpable for the offenses charged in the indictment," Walton wrote. ...
Walton noted that most of what he ordered turned over to Libby will not be seen by a jury. Classified evidence that Libby wants to use in the trial must be approved by the judge.
Walton said the White House and the CIA have until March 24 to make claims of executive privilege on the PDBs and related documents. In the past, the White House has resisted efforts to turn over documents about private communications, arguing that it would discourage aides and advisers from providing candid advice.
The fight over the classified material has delayed the Libby proceedings and prompted prosecutor Fitzgerald to charge that Libby's defense team is requesting unobtainable documents in an effort to derail the trial.
Summaries, rather than the actual documents, provided by the CIA seem reasonable to me.
"It is inconceivable that the defendant's memory of matters of significance to him have totally vanished," Walton wrote.
Isn't amazing how much more is expected of Republicans than of democrats like Hillary, Stephy, Hubbel, Didi, in fact all the clinton representatives who's memories evaporated under questioning?
"Who the heck is this person?"
Just a guess. COLIN POWELL????
But it worked for the clintons......"I don't recall"....Vince Forster, Whitewater, Craig Livingstone, Rose billing records, the cattle futures. .....
Seems only thing shrillary can recall is what's in her Weseley thesis......
Thanks for the ping!
Court documents:
http://www.dcd.uscourts.gov/opinions/2006/Walton/2005-CR-394~14:52:6~3-10-2006-b.pdf
http://www.dcd.uscourts.gov/opinions/2006/Walton/2005-CR-394~14:52:6~3-10-2006-a.pdf
I should have known, these being opinions, that the court would publish them.
/me slaps head
I would be very interested in forwarding that to my liberal friends.
This Court simply cannot accept the defendant's proposition that the substantive information contained in this country's most sensitive intelligence documents and the methods by which that intelligence is gathered are material to the preparation of his preoccupation defense under Rule 16. Nor can the Court agree with the Special Counsel's narrow view of what is material to the preparation of the defense, which would appear to limit the defendant to acquiring only those documents that relate solely to the defendant's interactions with various news reporters and which relate to the defendant's knowledge of Valerie Wilson and Ambassador Wilson. What the Court concludes is material to the preparation of the defendant's preoccupation defense is information that reveals why the defendant allegedly had a faulty memory about the conversations he had with reporters when he spoke to the FBI and testified before the grand jury, thus potentially negating the specific intent element of the charged offenses. Such information is therefore discoverable under Rule 16. See Poindexter, 727 F. Supp. at 1475-76. ...As made clear by the defendant, his preoccupation defense is predicated upon his involvement with pressing matters of national security and intelligence which consumed much of his time throughout an extended work day. It is the Court's view that preparation of this defense can be accomplished with a general topic description of the matters presented to the defendant during his morning intelligence briefings. These general descriptions, along with the defendant's personal notes that this Court has already ordered produced and the defendant's daily calendar, 21 would provide the defendant everything he needs to prepare his preoccupation defense. Accordingly, the Court concludes that in order to refresh his recollection about those events and to provide credibility for his preoccupation defense, the defendant does not need the explicit details of the intelligence documents he desires to obtain. Such details will not be "significantly" helpful to the preparation of his defense, and therefore are not material to it. Marshall, 132 F.3d at 68. Rather, the only material portion of these morning intelligence briefing documents are the general topics of the information contained in the documents, or the equivalent of tables of contents. The general topics of these documents would provide the defendant exactly the information he seeks â^À^Ô listings of the pressing matters presented to him during the times relevant to the case. It is inconceivable that the defendant's memory of matters of significance to him have totally vanished and would not be refreshed upon viewing the general descriptions of those matters, along with knowing when that information was submitted to him. Being provided with topical information would therefore undoubtedly be sufficient to refresh the defendant's recollection of these important matters and thus potentially lend credibility to the testimony of
anyone (including himself) who might testify on the subject. 22 Cf. United States v. Bailey, 262 F. Supp. 331, 332 (D.C. Kan. 1967) (noting that Rule 16 is a means to acquire documents to refresh a defendant's recollection). The defendant strenuously objects to this limited production, arguing that mere topic disclosure would "not permit [him] to recall or the defense to assess the urgency of the national security issues that the documents reflect or to convey that urgency to the jury." Def.'s Response at 9-10. The defendant's defense must necessarily be predicated upon what the defendant believed to be the pressing and time sensitive national security and intelligence issues that dominated his work day. The substance of the documents the defendant received during his morning intelligence briefing do not reflect what the defendant believed important, rather those document reflect what the CIA judged important to include in those documents. 23 Accordingly, only the defendant can attest to what issues he focused on, and the topics covered in the documents would contain sufficient information for the defendant to refresh his recollection to adequately accomplish the objectives of his defense.
The Court further concludes that documents reflecting inquiries made by the defendant during his morning intelligence briefings are also material as they would tend to identify those matters in the morning intelligence briefings on which the defendant presumably focused his attention and therefore requested additional information. However, just as providing the general topics of the morning intelligence briefing documents is sufficient to accomplish the goals of the defense, so too would a listing of the general topics of the defendant's inquiries.
It is therefore this Court's conclusion that a general description of the topics discussed in the various intelligence documents provided to the defendant during his morning intelligence briefings and the general topics of the documents reflecting the inquiries made by the defendant for additional information during these briefings are material to the preparation of his defense and thus must be produced. 24 Obviously, the Court appreciates that it may be impossible for the Special Counsel to simply produce redacted versions of the documents for discovery purposes, which is often done when a court determines that only some portions of a document are discoverable. See, e.g., United States v. Martinez-Martinez, 2001 WL 1287040, at *7 (S.D.N.Y. Oct. 24, 2001). Accordingly, if for some reason redacted documents cannot be produced, the Court concludes that the government may satisfy its discovery obligations by providing the defendant with other documentation that lists the general topic areas that comprised the morning intelligence briefings covered by this opinion. If presented in this manner, the documentation would have to include the date the information was presented to the defendant and indicate the general topics discussed with the defendant at the morning intelligence briefings. Regardless of the form the government ultimately employs to produce this information, 25 the production must be accompanied by an affidavit from the individual(s) who either redacted the documents or who compiled the topic overview of the documents attesting that the production is an accurate representation of the topics that comprise the original documents.
Finally, the Court must determine which dates are material to the preparation of the defense. The defendant posits that the time period which is material is May 6, 2003 through March 24, 2004. 26 This Court cannot agree that documents covering such a sweeping time period are material to the preparation of the defense. ...
---
21 There has been no motion filed seeking to compel the production of the defendant's daily calendar.22 The defendant also opines that summaries will only increase the government's burden of production. Def.â^À^Ùs Response at 12. Should the government find the compilation of summaries too burdensome, it is of course welcome to produce the entire document. That is a call, however, the government must make.
23 In fact, the defendant's initial Section 5 notice under CIPA makes clear that he currently possesses substantial knowledge about many of those issues of national security that he was presented with during the relevant time periods. And, subject to any limitations imposed by the Court in subsequent CIPA proceedings, the defendant would likely be able to testify to those matters.
24 To expedite production of these documents, the defendant has withdrawn his request for documents that were provided only to him during these morning intelligence briefings and documents which were created in response to inquiries made during the morning intelligence briefings. Accordingly, disclosure of those documents need not be addressed by the Court.
25 The Court appreciates that filings already made by the government indicate that there may be opposition or inability by the Special Counsel to produce the information even as limited by the Court. Such challenges or opposition, however, will be addressed in other motions which seem sure to follow and possible CIPA proceedings thereafter. CIPA obviously provides the legal mechanism through which the Court will have to address disclosure disputes that go beyond the materiality question, and CIPA is implicated only after the Court has resolved questions of materiality. See Poindexter, 727 F. Supp. at 1473; 26 Charles Alan Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure § 5672 (2005) ("Once the trial court determines that classified information is discoverable . . ., the government can" file a motion under the CIPA). It is during the CIPA proceedings that the Court will have to address, among other things, whether otherwise discoverable material has to be further redacted or substituted based on national security concerns and allegations of greymail. This is therefore not the proper time to make such determinations. In addition, the Court gleans from the papers that have been submitted to it that the Special Counsel envisions that the executive privilege doctrine will be implicated if it is ordered by the Court to disclose any of the information that is the subject of this opinion. If, following resolution of any executive privilege claims and resulting CIPA proceedings, it is determined that the documents discussed herein will not be produced, the Special Counsel will be afforded the opportunity to assert why the information contained in these documents is not necessary for the defendant to properly present his preoccupation defense at trial. And on this point, the Court notes that the Special Counsel does not deny that the defendant worked on significant matters of national security and intelligence. In addition, it appears that the defendant's attorney is acknowledging that the substance of the requested intelligence documents is not what the defense desires to present to the jury. In fact, it is unlikely that this Court would permit anything other than the general topic areas of these documents to be introduced at trial and would be prepared to advise the jury through an instruction that due to national security concerns the defendant is prohibited from discussing the details about the matters he was working on and that it is undisputed that the defendant was extremely busy during his work day, worked long hours, and worked on highly sensitive national security and intelligence matters.
26 Recently, the defendant has indicated a willingness to limit the time period for which he seeks documents responsive to his request in an effort reduce the time for which the production of responsive documents is necessary. Def.'s Response at 6. Unlike the defendant's explicit withdrawal of portions of his discovery requests, id. at 5-6, it is unclear to the Court whether the defendant has explicitly withdrawn his requests for documents outside the time period discussed in his recent response to the Dorn Declaration. Accordingly, this Court must make that determination.
27 The papers provided to the Court reveal that great efforts, by both parties, have been made to amicably resolve disputes without this Court's intervention. The Court commends the parties for these efforts. The defendant is scheduled to file yet another motion to compel in this case on March 17, 2006. The Court will require the parties to meet and confer about the requests in that motion before it is filed to determine whether this Court's ruling in this memorandum opinion affects either parties' position in the anticipated motion to compel and whether any of the parties' disputes can be resolved without the Court's assistance.
The RAT talking point would be that the administration is obstructing justice. Just wait for the political ads.
Would not that look bad to the ever-uninformed public though?
Giving the somnambulant public the impression that the administration succeeded in a coverup?
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