Fitzgerald, Libby Spar Over Secret Documents in Leak Case

Feb. 17, 2006 — -- In the latest legal wrangling in the CIA leak investigation, Special Counsel Patrick Fitzgerald pushed the judge in the case to deny Lewis "Scooter" Libby's defense team access to scores of top secret documents it had requested.

Libby, the former chief of staff to Vice President Dick Cheney, and his defense team have requested that all intelligence briefings Libby received from May 2003 to March 2004 be provided to defense attorneys. Libby's lawyers have also sought access to 277 Presidential Daily Briefings, or PDBs, which are among the most closely held intelligence documents in the federal government.

Fitzgerald objected to the request, noting in court papers filed late Thursday night that "the defendant's effort to make history in this case by seeking 277 PDBs in discovery -- for the sole purpose of showing that he was 'preoccupied' with other matters when he gave testimony to the grand jury -- is a transparent effort at 'greymail.'"

"Greymail" is an espionage term referring to the possibility of exposing classified material if a defendant is fully prosecuted. Congress passed the Classified Information Procedures Act to prevent greymail from occurring during sensitive national security prosecutions.

John Cline, an attorney for Libby, rejected the accusation. "The Classified Information Procedures Act makes graymail impossible," Cline said in a statment. "We are working lawfully and properly through the CIPA procedures to obtain documents essential to Mr. Libby's defense. All we want is a limited number of key documents that Mr. Libby either wrote or reviewed during the most critical period in this case."

To rebut the greymail accusation, Libby's attorneys will have to convince the judge the documents are vital to the case, said Jonathan Turley, a law professor at George Washington University. "The difficulty for Libby is to show the materiality of the request. Unless he can show a clear material connection to his defense this could be a greymail tactic."

Still, he said, if the judge denies Libby's legal team access to the PDBs, it could result in a dismissal of some of the charges.

"These defense attorneys are doing the right thing and probing every possible vulnerability," said Turley.

By law, the defense is entitled to certain documents to prepare for trial. Libby and members of his defense team have been given security clearances to review numerous documents to prepare for his defense, but the request for the PDB's could delay the proceedings if legal appeals become protracted. The trial is set to begin in early 2007 in Washington.

The release of the Presidential Daily Briefs is rare and was a highly debated topic during the 9/11 Commission's investigation of the Sept. 11 terrorist attacks. The 9/11 Commission tried for months to obtain access to the August 6, 2001, PDB titled "Bin Laden Determined to strike in the U.S." that referred to sleeper cells in the United States. The White House finally agreed to release the document.