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.

Fitzgerald: Defense Doesn't Need More Secret Documents

Libby's lawyers have requested the PDBs so they can demonstrate that Libby was immersed in sensitive national security matters. Court filings in the case by Libby's lawyers state that many of the decisions he was involved in at the White House involved critical matters, "some literally of life and death" and that errors in Libby's grand jury testimony "were the result of confusion, mistake or faulty memory rather than a willful intent to deceive."

So far, Fitzgerald and the government have provided Libby and his legal team with more than 11,000 pages of classified and unclassified documents.

"The government has produced all documents and information to which defendant is entitled, and requiring the production of the additional materials sought by defendant would unreasonably encroach on legitimate interests of national security, grand jury secrecy and executive privilege, and would cause unnecessary delay in the litigation of this case, with little or no benefit to the defendant." Fitzgerald and his team said in court documents filed late Thursday night.

In the next two weeks Libby's lawyers are expected to try to have the charges against Libby dismissed. Ted Wells, Libby's lead attorney, has declined in court hearings to elaborate why the indictment should be dismissed but said the defense will file a motion by February 24. The request for the classified materials, including the PDB's have provided a glimpse of the strategy that Libby's lawyers will use at trial. Last month Libby's defense team also gave notice to Judge Reggie Walton that it intended to subpoena journalists in the case.

Libby was charged in the CIA leak case in October 2005 for lying to a federal grand jury and investigators about how he learned about the identity of Valerie Plame, a CIA employee. Plame's name was published by Robert Novak in July 2003, and Fitzgerald was appointed as a special prosecutor to investigate the matter later that year. The investigation centered around a plot to discredit former Ambassador Joseph Wilson who disputed claims made by President Bush in his 2003 State of the Union Address that Iraq tried to purchase uranium from Niger, a country in northwestern Africa. The disputed intelligence was included in an October 2002 intelligence document known as a National Intelligence Estimate.

The prosecution of Libby in the leak investigation has renewed focus on Cheney's office. A January 23, 2006, letter from Fitzgerald to Libby's lawyers revealed "It is our understanding Mr. Libby testified that he was authorized to disclose information about the [National Intelligence Estimate] to the press by his superiors."

Earlier this week Cheney told Fox News that he could be called as a witness in the case. "I may well be called as a witness at some point in the case and it's therefore inappropriate for me to comment on any facet of the case."

The document filed by Fitzgerald indicated that the grand jury investigation into who leaked Plame's name is still ongoing. A status hearing in the case is scheduled for Feb. 24 before Walton.